Mesothelioma victims exposed to asbestos at their workplace up until 1972 may not have been protected by employer’s liability insurance as cover was not compulsory before this time. Unhappily, the peak period of asbestos use throughout much of British industry, construction and manufacturing was during the 1960s, 70s and early 80s. Furthermore, it wasn’t until 1998 that regulations were introduced, which required Certificates of Insurance to be displayed and retained for 40 years.

Consequently, there can be delays in making a civil court mesothelioma claim while further witness statements may need to be collected from those who also worked at the victim’s former workplace. The courts will assess if a former employer had failed in their duty of care to prevent or minimise the health risk of exposure, which led to the claimant’s diagnosed condition.

No record of an employer’s liability insurance could be found

The Health and Safety Executive (HSE) have estimated that 1 in 170 of all British men born in the 1940s will die of mesothelioma. Office of National Statistics (ONS) reveal that between 1968 and 2013 the number of male mesothelioma deaths aged between 50 and 70 increased by a 25 per cent. Latest available HSE figures (November 2017) show that in 2015, there were 2,542 mesothelioma deaths and 467 from asbestosis.

Every year, around 3,500 mesothelioma victims are unable to trace their original employer or insurer. In one recent case, a former telephone cable engineer was regularly exposed during the late 1960s and 70s to asbestos, which was widely used as insulation in the cables and wires. Unfortunately, his former company were no longer in business and despite exhaustive searches, no record of an employer’s liability insurance could be found.

Victims of asbestos exposure diagnosed with mesothelioma may instead ask their asbestosis lawyers to seek compensation through The Diffuse Mesothelioma Payment Scheme (DMPS). The scheme was introduced by the government in July 2014 as “fast track” compensation for the many mesothelioma sufferers who may only have a few months to live.

Detailed statements to support the victim’s own account of working conditions

In the case of the cable engineer, an application was made to claim compensation from DMPS. To be eligible, a number of conditions have to be met, including a confirmed diagnosis of diffuse mesothelioma was made on or after 25 July 2012 and the employer or their insurers of the workplace where exposure took place are unable to be traced. The engineer’s application was turned down on the grounds that there was “insufficient evidence” that he had been negligently exposed to asbestos.

However, the engineer’s work involved cutting and trimming asbestos-insulated cables by hand, drilling holes into asbestos insulation panels to install the wiring and handling asbestos-filled “fire prevention” bags. Throughout the work, asbestos dust was released which settled on the skin, clothes and surrounding floor where he worked.

It was therefore necessary to collect detailed statements to support the victim’s own account of working conditions. Testimonies were obtained from a former industry client of the company and an independent engineer who were able to clearly confirm that the former engineer would have been “negligently exposed to asbestos”. The additional written evidence, was attached to a request for DMPS to review their initial rejection of the application. As A result, DMPS reversed their decision and proceeded to award compensation of nearly £180,000.

Ensure an employer would be able to pay damages awarded to the employee

Since 1st January 1972,The Employers’ Liability (Compulsory Insurance) Act, 1969 (ELCI), requires every business employer to “insure and maintain insurance against liability for bodily injury or disease sustained by his or her employees arising out of, and in the course of, their employment in Great Britain in that business.” The intention was to ensure that an employer possessing a claim brought against them would be able to pay any damages awarded by the courts to the injured employee.

Under the Act, it is an offence to fail to maintain an insurance policy which complies with the Act’s requirements. An up-to-date Certificate of Insurance must be displayed where it can be easily seen, and read by employees and enforcing officers at each place of business.

The Employers’ Liability (Compulsory Insurance) Regulations 1998 requires Certificates of Insurance to be kept by the insured for 40 years. The regulations are also designed to prevent insurers from avoiding their liability by relying on a breach of a policy condition, such as prohibiting certain unfair terms in employers’ liability policies. One pertinent example, would be the failure on the part of the policy holder (the insured) to take reasonable care to protect his employees against the risk of bodily injury or disease in the course of employment.

Currently, the Act is enforced by both the HSE and the Local Authorities’ environmental health departments.