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Asbestos Booklet – a claim through a solicitor

In addition to claiming benefits and a lump sum from the Department for Work and Pensions (DWP), someone with asbestosis or pleural thickening should consider making a claim through a solicitor. This is for a lump sum of compensation, known as damages.

As most cases of asbestos disease occur because of exposure to asbestos in work, claims are usually pursued against the individual’s employer/employers. Damages claims can sometimes also be made if an individual who has asbestosis or pleural thickening was exposed to asbestos at home (because another member of the family brought home asbestos dust on his/her working clothes) or through living near an asbestos factory.

If someone has received a lump sum from the DWP and/or welfare benefits for his/her asbestos condition, he/she is still entitled to damages. Their value is usually higher than the total of the benefits and the lump sum a man/woman with asbestosis or pleural thickening is awarded. The amounts of the benefits and lump sum which have been paid are taken into account and deducted, in part or in whole (according to the particular circumstances of the case), from any damages an individual receives.

A claim for damages is more complicated than and almost always takes longer than claims for welfare benefits and the DWP lump sum. It is important, therefore, to contact a solicitor who specialises in asbestos claims and to do this as soon as possible.

Sometimes, men and women who have an asbestos disease do not want to contact a solicitor because, for example:
• they think that the company which exposed them to asbestos no longer
exists;
• they did not work with asbestos directly, but only near others who did;
• their exposure to asbestos happened tens of years ago; and/or
• they think that at the time of exposure to asbestos no-one knew that it was
dangerous.

In fact, claims in which people initially say these types of things often succeed. This is another reason why it is advisable to see a specialist solicitor promptly. Most will offer an initial interview at the claimant’s home free of charge.

How is a claim valued?

If it is successful, a lump sum will be awarded. There are two parts to this: first, an amount for the pain and suffering caused by the asbestosis or pleural thickening and; second, compensation for the financial consequences of the disease (e.g. loss of earnings and/or pension and the cost/value of nursing care and equipment).

Damages are not subject to Income Tax. An award does not affect a claimant’s right to continue to receive non-means tested welfare benefits (e.g. Industrial Injuries Disablement Benefit, Personal Independence Payment/ Attendance Allowance).

Someone who is receiving means tested benefits can set up a trust into which his/her damages are paid. This is a straightforward procedure and ensures that the individual can still receive means tested benefits after an award of damages.

Full and final or provisional damages

A claimant with asbestosis or pleural thickening is at risk of his/her current asbestos disease worsening and/or of developing a further asbestos condition. The conventional basis for civil claims is for “full and final” damages. This approach allows a claimant to make only one claim for asbestos disease. Full and final damages include a payment for the possibilities in the future of deterioration in the claimant’s asbestos condition, of the development of a different asbestos disease and/or of asbestos-related cancer. The amount of this payment is significantly less than the damages which would be awarded if a more serious or a malignant asbestos disease were to develop. Thus, if a claimant accepts full and final damages there is a chance that he/she will be under compensated. This would become real if, for example, the claimant contracted mesothelioma or asbestos-related lung cancer. To avoid this risk someone with asbestosis or pleural thickening can claim “provisional damages”. On this basis, awards are made for the claimant’s current asbestos condition only, ignoring the risks that in the future it may deteriorate and that a different asbestos condition and/or an asbestos-related cancer may develop.

If any of these risks were to occur, the claimant could then make a further claim for damages.

What information will the solicitor need?

The solicitor will need to meet the claimant, ideally in person at his/her home, to take a detailed statement about how he/she came into contact with asbestos dust, and to obtain a general overview of his/her working history and personal and financial situation. After this meeting, in many cases, contact between the solicitor and client can be limited to phone calls and letters.

How is a claim funded?

If, after an initial free interview, the solicitor thinks that the claim has a reasonably strong chance of succeeding, he/she should offer to act under a “no win-no fee” agreement. This arrangement means that there is no financial risk to the claimant or his/her family if the claim is not successful.

How long will a claim take?

Cases which turn out to be straightforward sometimes settle without court proceedings being issued, within about six months of the solicitor starting work. If an early settlement is not possible and court proceedings are issued (which does not necessarily mean that there will be a trial), these will usually conclude within about a year of issue.

What happens if the claimant dies before the claim is concluded?

The executors or administrators of his/her estate can pursue the claim.

Does the claimant have to appear in court?

This is a possibility, but a very remote one. Nearly all asbestos disease claims conclude with a negotiated settlement before the date of the court hearing. Probably less than 1% are decided at a trial. Even if there is a court hearing, the claimant will be represented by a barrister who will prepare him/her thoroughly for it. The judge will also almost certainly be sympathetic to his/her situation.

What is the time limit for claims?

The law requires court proceedings to be issued within three years of the date that a person was first informed he/she had an asbestos-related disease. The courts have a discretion to allow claims to go ahead even if they are issued outside the three year period, but there can be no guarantee that this will be exercised in any given case. It is, therefore, advisable to contact a solicitor as soon as possible after the diagnosis of an asbestos-related disease.

Should a man or woman with asbestosis or pleural thickening make a will or, if he/she already has one, review this?

Yes. This is especially important if he/she has a partner but is not married.

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