When a mesothelioma claim is brought before a court, the awarding of mesothelioma compensation can be determined by a number of factors, including current legal guidelines, reference to previous cases, and the deliberations of the judge.

For mesothelioma victims of asbestos exposure and their family, the process may appear daunting. Especially if the victim is only expected to have a few months remaining to see their claim settled, along with the financial security of their dependants.

Fairer assessment and higher payment

When admission of a defendant’s liability is obtained, an asbestosis lawyer will immediately seek an interim lump sum payment. It is often expected to be a “reasonable proportion” of the damages expected in the eventual dependency claim, which can also involve the pursuit of “lost years” as a result of reduced life expectancy.

In a recent High Court case, the judge ruled that the highest amount possible – a six figure sum – would be awarded in compensation for the “pain and suffering” caused to the victim. However, a further claim for “lost years” would be adjourned until the victim passed away. The decision has been viewed as bringing a “fairer assessment” and a higher payment to dependants of a mesothelioma victim.

A claim for “lost years” is a calculated amount of income, which would have been earned in the years after the probable date of death minus the accompanying and necessary living expenses incurred during the same period.

Loss of dependency

The two key items, which are generally considered in calculation of a dependency claim are the ‘past’ and a ‘future’ financial loss. A standard court procedure has been to assess for the lump sum needed to compensate the claimant for the future loss. A claim for ‘loss of dependency’ is usually made by any individual who was dependent on the deceased for their financial wellbeing, which is usually the husband or wife and the immediate family who are entitled to any loss of dependency. The judge needs to see the details of the family income and of the deceased at the time of the death, and any outgoings of the deceased.

Introduced in 1934, the Law Reform (Miscellaneous Provisions) Act made it possible for a claim to be made for lost earnings in the lost years and also a claim for a loss of dependency reliant upon those earnings. However, where the cause of action occurred before 1 January 1983, the Law Reform Act damages would usually be greater than those recoverable under the Fatal Accidents Act 1976.

Victim’s knowledge of a reduced life

The possibility of double compensation was regarded as unacceptable and the claim was abolished by the Administration of Justice Act 1982. Instead, an account was to be taken of the victim’s knowledge that his expectation of life had been reduced in assessing the award for pain and suffering.

Among a number of changes also made to claims under the Fatal Accidents Act was the introduction of a Bereavement Award, an amount of compensation awarded in recognition of grief suffered for a wrongful death, which may be made by the wife, or husband of the deceased.

Loss of earnings calculation

In a claim involving a substantial loss of earnings, the defendant is expected to robustly challenge the basis on which the loss of earnings is calculated. A calculation usually begins by evaluating the annual net loss the claimant will incur in the future known as the “multiplicand” by applying the annual loss of earnings, which is then increased by a “multiplier”. The appropriate multiplier – determined by actuarial tables known as the “Ogden Tables” – is based upon the number of years between the date of the settlement and the date when the loss stops. In a claim for future loss of earnings, this may be the date when the Claimant would have retired.

When a “lost years” claim is made by a terminally ill victim for loss of earnings or income whilst still alive, the compensation awarded may be less than if his dependents (usually next-of-kin) claim for compensation following the victim’s death. The judgment in the recent case, which will bring improved financial relief to the victim when needed most by victim and dependents is to be welcomed.