HASAG Asbestos Disease Support is dedicated to supporting people affected by Asbestos-related diseases in the South, South East, London and the Home Counties.
If you have been diagnosed with an asbestos condition and decided that you want to make a claim for compensation through a solicitor, one of the first questions which will need to be answered is who the claim should be made against.
If you were an employee of a company or organisation, from a legal point of view, the situation is straightforward. Employers automatically owe employees a duty of care and your solicitor would first look into making the claim against your employer – or employers if you were exposed to asbestos by more than one employer. Your solicitor would begin by considering two issues: first whether the company/organisation is still in existence; and second, if it isn’t, whether its employer’s liability insurers can be identified. If the employer still exists (and has enough assets to pay any compensation awarded) or, if it no longer exists but its insurers have been identified, the claim would be brought against the employer.
Often, the employer who exposed you to asbestos no longer exists and there is no record as to who its insurer was. In this situation, if you have Mesothelioma, you can make an application to the Diffuse Mesothelioma Payment Scheme (DMPS). If the application is accepted, the DMPS will award compensation based on a tariff of average awards made in claims for Mesothelioma according to age.
The legal system accepts that Mesothelioma Claimants are entitled to include a claim for the cost of immunotherapy provided on a private basis if this treatment is appropriate. The cost is usually about £10,000 for each cycle and cycles can continue for up to a year or more. Importantly, the DMPS tariff does not take into account the cost of private immunotherapy treatment. A DMPS award could be exhausted very quickly by paying for private immunotherapy treatment. This issue was the subject of a news item on the HASAG website dated 22nd September 2020: “The DMPS – in need of reform”.
Consequently, even if a DMPS application is possible, if you have Mesothelioma your solicitor may need to look beyond your employer to try to find a defendant which can pay adequate compensation, including for the cost of private immunotherapy treatment. This also applies if you have an asbestos condition other than Mesothelioma if your employer no longer exists and if there is no record as to who its insurer was. This is because the DMPS is only available in cases of Mesothelioma.
A possibility is to make the claim against the occupier. This could apply if you were an employee of a contractor and you were exposed to asbestos working at a client’s premises, especially if these come under the legal definition of a “factory”. (In fact, this definition covers many more types of workplace than traditional factories: for example, shipyards, power stations, laundries and mechanics’ workshops.) You may be able to claim against the occupier of the premises. Realistically, a claim against an occupier is only likely to possible if this was a large company or a local authority.
In quite rare situations, it may be appropriate to make the claim against an individual director of the company which employed you. This type of claim would only be made if there was evidence that the director personally controlled the work which caused you to be exposed to asbestos and that he/she had sufficient knowledge of the risks which this exposure involved.
Another relatively rare possibility is, if your employer had a parent company, to make the claim against that company. To succeed, it would have to be shown that the parent company controlled the operations of your employer subsidiary, that it knew that the subsidiary’s practices were unsafe and that its knowledge of the dangers of asbestos was superior to that of the subsidiary.
So far, we have only considered the situation involving employees. What can you do if you were exposed to asbestos when you were self-employed? In this situation, your solicitor will need to look in detail at the reality of your working relationship with your contractor. The sort of questions they will ask are:
- Did you work exclusively for the contractor? Did the contractor provide work materials, including those which contained asbestos?
- Did an agent or employee of the contractor direct and manage your work?
Answers to these and similar questions could show that although you were technically self-employed you were, to all intents and purposes, an employee of the contractor. A claim against the contractor could be possible. At the other extreme, if you were working largely autonomously it may be difficult to prove that your contractor had the required duty of care towards you to allow you to pursue a claim.
You may have been exposed to asbestos working for more than one employer or contractor. If you have Mesothelioma, the law requires you only to make out a successful claim against one defendant. This defendant would be liable to pay damages for the whole value of your claim, even if you also had exposure to asbestos in different work. The defendant doesn’t even have to have been responsible for most of your exposure to asbestos.
If you have Asbestosis or Pleural Thickening the law takes a different approach. Each defendant against which you are successful is only liable to compensate you for the proportion of your total exposure to asbestos for which it was responsible. Consequently, your solicitor would try to include as many defendants in your claim as possible.