There are a number of different considerations for any patient following a diagnosis of mesothelioma. Not only are you coming to terms with a diagnosis of cancer which may well impact life expectancy, but you might also need treatment or at the very least regular monitoring, requiring many visits to hospital. You might also be struggling with the fact that you have a rare cancer and that the cause of that cancer is likely to be connected to something that could well have been prevented. There is also the consideration for your loved ones and how this diagnosis will impact upon them; not to mention whether you may be suitable for or even wish to take part in a clinical trial. At such a difficult time it may be the furthest thing from your mind to consider a legal claim for compensation for your previous asbestos exposure.
The possibility of a legal claim
Following your diagnosis of mesothelioma, you will be presented with a wealth of information and documents about your condition. There is also an awful lot of information (both good and bad) available on the internet which can be overwhelming. Although it may not seem the most important thing at the time, you may be directed to consider a legal compensation claim by perhaps your lung cancer nurse specialist or an asbestos support group.
If you have been exposed to asbestos at work, as a school pupil, through secondary exposure from another family member who has been exposed to asbestos, or perhaps environmental exposure such as living near an asbestos factory or other negligent exposure, then it may be possible for you to successfully claim compensation for your condition.
In many ways, speaking to a solicitor in those early days if you feel up to it, can be beneficial as you will be starting to think about where you were exposed to asbestos and it is helpful to identify any potential “cuplrits” early on. It is crucial to capture your recollections of your working history and circumstances of asbestos exposure as soon as possible.
Your solicitor or HASAG will apply for your employment schedule from HM Revenue and Customs and this will list all of your employers from 1961 onwards. This is really useful when often patients cannot recall the names of the companies they worked for 40 or 50 years ago (and sometimes longer).
One of the first steps following a diagnosis of mesothelioma is to make an application for benefits. An application for benefits does not require the same standard of proof as a legal compensation claim and therefore benefits applications, if successful, are usually paid within a matter of weeks which will allow quick access to funds.
You will be entitled to make an application for Industrial Injuries Disablement Benefit where you have suffered exposure to asbestos in employment and if successful can go on to make an application for a lump sum payment under the Pneumoconiosis etc (Workers’ Compensation) Act 1979.
In the event that you are unable to identify exposure to asbestos through an employer, but have been exposed to asbestos in the UK, then you will still be entitled to a lump sum payment from the Government under the Diffuse Mesothelioma Scheme 2008.
HASAG will be more than happy to assist you with the above applications and also other benefits, such as Attendance Allowance and Personal Independence Payment, amongst others.
In addition, if you have been exposed to asbestos by an employer, but are unable to pursue a claim against that former employer because it has ceased trading and employer’s liability insurance cannot be identified for that employer, then you can make an application under the Diffuse Mesothelioma Payment Scheme 2014 to obtain a compensation payment instead. The Diffuse Mesothelioma Payment Scheme 2014, unlike a civil compensation claim, makes payments based upon tariffs dependent upon your age.
What about a legal claim?
If you have been negligently exposed to asbestos and there is a viable defendant (opponent) a civil compensation claim can be considered. The amount of money you will receive in a compensation claim is based on the individual circumstances of each patient and is largely much more valuable than benefits.
You may think that civil compensation claims are lengthy and arduous. However, there is a specialist mesothelioma court and indeed specialist judges which means that cases can be expedited. The length of a mesothelioma claim will vary between each individual patient but the quicker that liability is admitted (or judgment entered by the Court), the quicker cases can proceed. Specialist mesothelioma solicitors will issue proceedings in the High Court where there is the dedicated asbestos list. This results in cases being progressed much more swiftly than standard personal injury claims, such as road traffic collisions. Your specialist mesothelioma solicitor will also have detailed knowledge of mesothelioma claims and be able to effectively progress your claim in a time efficient manner. This can include an early payment of compensation (interim payments) before your claim has fully settled.
Pursuing a legal compensation claim does not prevent you from also applying for benefits. You can apply for benefits right away and, as set out above, this generally results in swift payments. If you later go on to succeed in your civil compensation claim then any of the benefits which you have received may be offset against the final compensation award, to avoid being compensated twice for the same condition. For example, if you received a £20,000 lump sum payment from the Government and then went on to be awarded £150,000 in your civil compensation claim, you would have to account for the £20,000 already received and therefore would receive a further payment of £130,000 from the defendant.
But what are the benefits of a legal compensation claim?
Your specialist mesothelioma solicitor will guide you through the process of making a legal claim and make it as easy for you as possible. The purpose of the legal compensation claim is to put you in as good a position as you would have been had you not developed mesothelioma, caused by the negligence of the defendant.
This means that any out of pocket expenses incurred will be claimed as a part of the compensation. The cost of any care and assistance or aids and equipment which you may require, both now and in the future, will also be included in the claim.
In addition, private treatment and immunotherapy can also be claimed, whether or not you are currently undergoing either. This will leave the option open for you to have any private or immunotherapy treatment funded, without having to prolong your claim to the point where you require such treatment.
Immunotherapy is a treatment designed to help the immune system to fight off disease. For those who wish to undergo immunotherapy treatment privately, a successful mesothelioma claim will enable you to fund the costs of this private treatment.
A successful compensation claim can provide funds for loved ones, for example by compensating you for the years you may lose as a result of your mesothelioma, known as a “lost years” claim. This is essentially a claim for your lost income, whether that be earnings, pension or both, as a result of those years which you are anticipated to lose due to your diagnosis. It often provides mesothelioma patients with some comfort to know that their loved ones are provided for in the future. In addition, a number of mesothelioma patients receive invaluable assistance and support from hospices, particularly at the end of life, and hospices also provide assistance to their families. As independent charities or charitable trusts they receive little or no funding from the NHS or local authorities. As a part of the claim for compensation, we are able to recover those costs incurred by the hospice, which are not funded by any NHS element but are purely charitably funded.
There will also be a claim for general damages. This is to compensate you for the mesothelioma and associated pain, suffering and loss of amenity. Amounts for general damages vary from case to case but are generally awarded between £59,730 to £107,410 (Judicial College Guidelines 15th edition).
Will I have to attend Court?
Cases very rarely go to trial, even if court proceedings are issued to progress matters in appropriate cases. Whilst it cannot be guaranteed that any particular case will settle “out of court”, the vast majority of cases do not proceed to a contested trial at court.
What about delays due to COVID-19?
Rest assured that it is business as usual for solicitors and the courts so a legal claim can be pursued now just as it could pre-COVID. Virtual meetings are of course more common sadly for the time being and there may be slight delays in obtaining documentation such as medical records.
Court hearings are taking place by telephone or video conferencing where possible so mesothelioma claims continue to receive the same priority in our justice system as they always have.
Many mesothelioma cases have been successfully started and concluded during the pandemic and you should not let the COVID-19 pandemic put you off taking the first steps of getting legal advice if you have received a mesothelioma diagnosis.
In addition to the obvious financial benefit a successful claim brings, there may also be a sense that justice has been served. Patients often say that when the company (or insurer of that company) admit that they breached their duty of care towards them, they feel a sense of relief and satisfaction that they will be held financially accountable for their actions, or indeed their inaction towards good health and safety practices many years ago.
A successful settlement following a diagnosis of mesothelioma will provide you with an amount of money to compensate you for the illness itself and funding to cover any out of pocket expenses, equipment, care and assistance (whether provided by loved ones or paid for privately) and may fund any private treatment which you wish to explore.
Undoubtedly this brings about peace of mind, knowing that your and your loved ones’ futures are financially secure. Your specialist mesothelioma solicitor will be able to guide you through the process to make this as stress free as possible. All the solicitors on HASAG’s legal panel are mesothelioma claims experts, understand the difficulties you are facing and will be on hand to simplify the legal process.