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Case Study

Andrew Morgan secures DMPS award of £107,320.00 after appeal

Fieldfisher's specialist mesothelioma and asbestos solicitor Andrew Morgan has successfully obtained a Diffuse Mesothelioma Payment Scheme award of £107,320.00 for his client, Edward May, in an appeal against the scheme administrator's original decision.

Mr May worked as an electrician, and was exposed to asbestos by three different companies in the 1960s and 1970s, including during work at the Milk Marketing Board premises in Cambourne, Cornwall. On this job, large amounts of asbestos sheeting were removed, asbestos-containing lagging was installed, and asbestos-containing fuses and isolators were replaced. Unfortunately, Mr May was diagnosed with epithelioid malignant mesothelioma in December 2013.

Mesothelioma Act 2014

Under the Mesothelioma Act 2014, which was implemented by the Diffuse Mesothelioma Payment Scheme Regulations 2014, if the victim's disease is diagnosed after 25 July 2012, and was caused by the negligence of an employer against whom the victim is 'unable to bring' a civil claim for damages – for example, because the employer or their insurer no longer exist or are untraceable – the scheme administrator must award a lump sum payment. This amount decreases with age, and was initially 80% of the average civil award, but is now 100% for those diagnosed after 10 February 2015.

Untraceable Employers

The first employer was untraceable, whilst the second had no insurance cover. The third was still trading, but had limited assets which were insufficient to meet even 50% of the full amount claimed, even before other creditors received their shares. Furthermore, there were no records of the company's insurers going back to the relevant time period. Upon application, the claim was twice rejected by the scheme administrators, who argued that Mr May could technically still 'bring' a claim against his employers. However, the First Tier Tribunal decided on appeal that the Act was designed by the government, as evidenced by its preamble, to help people precisely in this situation who cannot get full financial redress in a civil claim. It did not matter that the company was still trading, as a successful civil claim would have made it insolvent, and the phrase 'to bring' must instead mean 'to substantially succeed in'. The administrators have confirmed that they will not appeal the Tribunal's decision, opening the scheme up to many more claimants suffering with the disease.

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