If a victim of asbestos exposure loses their life to mesothelioma cancer before a claim for mesothelioma compensation can be settled, the spouse and family members will – with the help of their asbestosis lawyer –  be left to continue with pursuing damages.

The successful awarding of damages may also recognise and make provision for the bereavement and loss suffered by the immediate family when someone dies from the fatal cancer. In a number of tragic cases, the victim passes away before a mesothelioma claim is satisfactorily settled, which would have allowed them to see that their loved one’s future is made financially secure.

Former employers can and will invariably argue against a claim of negligence. A claimant has to provide evidence that the employer failed to provide a duty of care to protect their workforce from exposure to asbestos and the potential health risks shown to have caused or contributed to the development of the victim’s mesothelioma or asbestosis disease.

However, an amount may also be awarded to “next of kin” for their loss. A bereavement award is an amount of compensation awarded in recognition of grief suffered for a wrongful death.

Recently, a case was heard in which the family of a former worker at the Rosyth naval dockyard on the Firth of Forth in Fife, Scotland, fought to overcome an appeal by the employer to secure damages for the victim’s mesothelioma. Tragically, the victim had passed away the year before.

Exposed to “considerable quantities of asbestos”

The deceased had spent his entire working life at Rosyth dockyard, which once carried out the refitting of Royal Navy ships and submarines, and where it is claimed he was exposed to “considerable quantities of asbestos” while working on the vessels. In this particular case, the employer was the Ministry of Defence (MOD).

The MoD is no stranger to litigation involving mesothelioma claimants. A Freedom of Information request previously revealed that between 2006 and 2013, the MoD settled 273 mesothelioma claims totalling just over £19 million. More recently, the MoD stated that mesothelioma or asbestosis-related claims may be treated differently, based on whether they were made by “military personnel or civilian employees” and “whether or not the Ministry of Defence has a legal liability to pay compensation.

Family to show they were each “accepted” by the deceased

In the present case, the MoD argued that the deceased dockyard worker’s partner, her grown-up children and grandchildren had “no title to sue”. The MoD disputed the action on an “age related” basis, pointing out that the widow’s children from her previous marriage were aged 33 and 36 respectively when she moved in to live with the former dockworker. It was therefore argued by the MoD that “none of them can be described as a ‘child’ in the normal sense in which the word is used.

However, the claimants argued that the family should be able to show that they were each “accepted” by the deceased as children and grandchildren of his family.

The court heard that the family were “particularly close” and the deceased “fulfilled the role of father and grandfather within the family”, providing “practical and emotional support, advice, guidance, companionship and affection”. Consequently, each family member was caused “considerable distress and anxiety” when they thought about his suffering as well as experiencing “loss and grief” at his death.

No limit for awards made to close family members

Under the terms of The Damages (Scotland) Act 2011, the family asserted their title to sue on the basis that each was “accepted by the deceased as a child of the deceased’s family”, similarly, one of the grandchildren, aged 19 at the time, also asserted her title to sue on the basis that she was “accepted by the deceased as a grandchild of the deceased”.

The Damages (Scotland) Act 2011, which came into force on 7 July 2011, imposes no statutory limit for awards made to close family members in fatal claims for pain and suffering following bereavement. The individual circumstances of each case is considered on its own merit when deciding the amount of bereavement damages. This may include awards to brothers, sisters and children, and is in contrast to the position in England.

“Factors in favour of a definition by relationship and not age”

The court decided that the relatives were not disqualified from pursuing a claim on the basis of their ages at the time the deceased started to live with the spouse. Under the Act, the term ‘child’ was not “age restricted” but “correlative of relationship” with the parent. The Judge said that all the “factors taken individually and collectively pointed in favour of a definition by relationship and not age”.

The Judge also said that there is no ready and consistent answer in ‘family law’ as to who is a child adding that words should be given their “ordinary and natural meaning… consistent with every day usage, dictionary definition, and a recognised approach in case law.”

The verdict meant that the former dockworker’s relatives would be able continue their court action.

In England and Wales, a claim for bereavement and loss is restricted to either the spouse, a cohabiting partner (a minimum of two consecutive years), the parents of an unmarried legitimate child under the age of 18 or the mother of an unmarried illegitimate child, also under the age of 18.