In a recent mesothelioma claim, a former employer argued against the amount of damages to be awarded to the victim’s wife. The defence alleged that the life expectancy of the claimant who had died two years earlier, would probably have been shortened as a result of the victim’s smoking habit and a high cholesterol level, even if the fatal cancer had not led to an untimely death.

A claim for mesothelioma compensation can often be more quickly resolved if it can be shown that the employer neglected their ‘duty of care’ owed to the claimant. Historically, defendants would deny asbestos awareness, linked to their “foreseeability” of the long term damage / injury that would be caused by exposure to the fibre dust. However, a court would look at the closeness of the employer’s working relationship and association with the workforce to better determine an employer’s awareness of the potential harm involved.

Tragically, it has been repeatedly found that an employer would fail to carry out actions to reasonably prevent or minimise risk of asbestos exposure. Claimants employed during the 1960s, 70s and 80s often recall the failure of an employer to issue breathing masks, protective equipment or safety information when working directly with or around asbestos materials.

Disputed amount of compensation

In the case of a 70 year old employee diagnosed with the incurable asbestos-related cancer of the lung linings, the former employer did admit liability for the claimant’s exposure to asbestos dust. However, they disputed the amount of compensation that was to be paid to the widow.

Under the Fatal Accident Act 1976, a widow or near relative of the deceased can enter a claim for damages they have suffered if they have been deprived of their support and services, and the court will decide if a capital sum should be made. Similar to an award for lost future earnings, the amount will be sufficient to provide the widow and other dependants with “material benefits of the same standards and duration, which would have been received from the earnings of the deceased had their life not been cut short as a result of the wrongful actions or neglect of duty of the defendant”.

Victim had been generally fit and in good health

In the case in question, the judge’s view did not agree with the employer’s defence. The evidence suggested that the husband stopped smoking some time ago and his cholesterol level had not posed a health risk. It was also pointed out that the victim had been generally fit and in good health before developing mesothelioma, and would have probably lived for another 16 years if the cancer had not caused his premature death.

While the final amount for the lost earnings of the deceased and his widow’s financial dependency is yet to be calculated, the court awarded a total of over £163,000,which includes £90,000 for the intense “pain and suffering” her husband endured before his death, £25,000 for care and assistance she gave him and £30,000 for “loss of non-financial dependency”.

Courts aim to ensure that a widow will not be financially worse off

It is not unusual for a defendant to vigorously challenge how a potentially large loss of earnings claim is to be calculated by the courts, which aims to ensure that a widow will not be financially worse off in the years ahead. The future net loss is worked out by applying the annual loss of earnings less living expenses, which is then further multiplied by determining a “reasonable” number of future probable years.

In a further bid to reduce the amount of liability they will incur an employer can also dispute the point from which a figure starts to be calculated. This is also not surprising. Traditionally, it can be a lengthy process to trace an original employer / insurer who may no longer be in business. Once found, a defendant may decide to contest the claim or appeal a judge’s verdict with subsequent verdicts overturned by different appeal judges.

Cases where a claim can take 1-2 years or even more

In another recent, separate case of “loss of dependency” caused by the victim’s death from mesothelioma, the defendant argued that the figure should be calculated from the date of death as opposed to the date of the trial settlement.

Until fairly recently, in those cases where a claim can take 1-2 years or even more after the victim has died, a defendant was able to reduce the amount of compensation they were liable to pay by starting the calculation from the final hearing. A judge can now order the whole or part of the damages to be made in period payments.