Struggling to come to terms with the shock of a confirmed diagnosis, the first response of a mesothelioma victim and their loved ones is to find answers. The need to find out exactly how and why exposure to asbestos occurred becomes a determination to seek justice and to bring the persons responsible to account. An asbestosis claim can often begin at around £31,000 while a mesothlioma claim may start at nearly double that amount.

However, contrary to what some might presuppose, the question of mesothelioma compensation is not a prime motivation. Victims and their families are too devastated by the discovery that exposure was the result of an innocent lack of asbestos awareness to the potential health risks of breathing in the fibre dust at the time.

Determining a former employer’s liability for a level of exposure and contribution to the victim’s resulting mesothelioma or asbestosis disease forms the basis of a claim. Over the years, the rise of mesothelioma claims for “secondary”, “environmental” and “non-occupational” exposure highlight the widespread, industrial use of asbestos across Britain during most of the second half of the 20th century. From the post WW2 period of reconstruction of the early 1950s through to the first asbestos ban in the 1980s, thousands of men and women were exposed to asbestos at their workplace, at home or in their local area.

Male mesothelioma has increased by more than 11 fold

Between 1968 and 2013, more than 44,100 men lost their lives to mesothelioma. The British Medical Journal (BMJ) have reported that the number of male mesothelioma cases has steadily increased by more than 11 fold between the 1970s and 2011, and by 8 times over for female victims during the same period. The annual number of deaths resulting from mesothelioma is currently at 2,542, according to latest figures released by the Health and Safety Executive (HSE), June 2017.

Inevitably, the victims and or their family will be involved in a case which, if successful, leads to the awarding of compensation for the damage caused. Under The Employers’ Liability (Compulsory Insurance) Act 1969, employers were required to insure their liability to their employees for bodily injury or disease sustained in the course of their employment. The Act aimed to ensure that those with asbestos-related diseases can claim compensation against their employers’ liability insurance, where the employer has been negligent in exposing them to asbestos while at work.

In many cases, policies can be interpreted strictly by the actual policy wording, which means that some victims find it difficult to claim compensation if the insurance policy was worded in a way that prevents a claim from being made. An employer defendant will also want to robustly deny the extent of their liability, or any responsibility at all. Yet negligence of a duty of care can often be shown by the absence of any protective equipment supplied to employees or safety information about the potential health risks. Nevertheless, proving negligence and/or breach of statutory duty in a civil action is always on a “case by case” basis and must first prove employer negligence.

Duty of Care and Breach of Duty

For a successful claim in negligence, three elements must generally be present:

Duty of care – which is decided by whether a defendant “owed a duty of care” to a claimant. In addition to the defendants “foreseeability” of damage, there should be sufficient and reasonable “proximity” between the parties.

Breach of that duty – an omission to do something that a reasonable person would do, or to do something which a reasonable person would not do.

Actual damage – caused as a result of the breach of the duty to take care. The damage must not be too remote a consequence of the breach of duty.

The level of damages will be affected by age, lung scarring, ability to work and effect on life expectancy, where mesothelioma, asbestos-related lung cancer or a severe asbestosis, which causes serious progressive disability leads to a premature death.

General damages and Special damages

The court can also award “general damages” for “pain, suffering and loss of amenities”, which is a sum based upon previous cases, usually between about £55,000 – £82,000, depending on the age of the claimant and duration of illness.”Special damages” can also be awarded, calculated upon each individual’s financial circumstances and may include loss of present and future income.

In January 2014, the Department of Work and Pensions (DWP) produced a study on the average payments made in civil cases of mesothelioma compensation. During the five period, the survey found that the average compensation awarded ranged from £137,000 to £153,531.

Between 2007 and 2012, awards grew on average by £17,900, but were also found to be £8,300 higher if court proceedings had been issued or £10,900 higher if the claimant was alive at the time of the settlement. Around six in ten (59 per cent) of claimants were known to be deceased at the time of the award. The highest awards were typically for those claimants aged under 65 (ave.£194,466), while the lowest awards given to those claimants aged 85 and over (ave. £95,188).

The awarding of payments is complex, based on many considerations and influenced by individual court verdicts. For most victims and their families, the aim is to simply see justice served upon those who failed in their historical duty of care.