The Bill provides for only a fraction of the compensation that a successful Claimant might obtain at Court, and the new Scheme will apply only to people who are diagnosed as suffering from mesothelioma after 25 July 2012.
For more than 20 years claimants, their lawyers, campaign groups and trades unions have protested that good claims can fail simply because the employer's insurer cannot be traced. There was no central registry of Employer's Liability insurance policies and by the time employees developed industrial diseases such as mesothelioma, industrial deafness or Vibration White Finger the employer had often gone out of business. Although the employers had paid premiums to their insurers in the past, injured claimants had no one to turn to. Current insurers said simply that there was no way they could check their records, or that records had been lost, damages or destroyed over the years so they would not pay out in such cases.
The notion of a Scheme to provide for payments in these circumstances was proposed by the last Labour Government. It was supported by this current Government after they had reached an agreement with the insurance industry that effectively put a cap on the amount of money that the insurers were to contribute. Their original proposal was that payments could be made only in mesothelioma cases, only following workplace exposure and only where the diagnosis was first made on or after 25 July 2012. They proposed that payments be fixed accordingly to the claimant's age and should equate to 70% of the average value of claims that are pursued through the courts successfully.
Because of insurance industry constraints the Government yesterday opposed an amendment that the insurance industry should be compelled to make contributions to a fund for medical research into mesothelioma. That amendment failed and so the Mesothelioma Act, when it comes into force, will not compel the insurance industry to contribute into mesothelioma research.
The original draft of the Bill provided that payments might be made to people who were diagnosed with mesothelioma on or after 25 July 2012. The House of Commons considered an amendment that this "qualification date" be put back to 10 February 2010, when the previous Labour Government began its consultation, so that the Scheme might cover a further 700 people or more but, again, this amendment was unsuccessful. As a result the new Scheme will apply to people who were diagnosed with mesothelioma on or after 25 July 2012 only.
The Scheme provides a "fund of last resort" for those who have a good case but who cannot find an employer with assets to meet their claim and where no insurance can be found. The Scheme will make payments according to a "tariff" which pays a fixed amount to each successful applicant according to their age. The original proposal was that these payments would amount to 70% of the average award that a Claimant might get in a civil compensation claim. Over the past few weeks, in response to considerable pressure from MPs of all political persuasions and from victim support groups and Claimant lawyers, the Association of Personal Injury Lawyers (APIL) and others the Government proposed that this figure should be increased to 75% but the House of Commons considered an amendment to increase that figure still further. After a vote, that amendment failed and the Scheme will therefore make payments equivalent to 75% only of the average Court award.
The Bill does not deal directly with some important aspects of the proposed Scheme. For instance, the Claimant will have to prove to the Scheme that his or her employer was negligent before any payment can be made; the Bill does not say who should run the Scheme and there is concern that the insurance industry, which will fund pay-outs under the Scheme, should not be left to police the Scheme itself. There remain difficult technical issues regarding any appeals or arbitrations that might be needed and regarding the legal fees that applicants might incur in making an application. These details will be left to Regulations which will be introduced in the future, before the Scheme comes into operation in July 2014.
- The Mesothelioma Bill has cleared Parliament and will receive Royal Assent in due course;
- The Mesothelioma Act will set up a Mesothelioma Payment Scheme;
- The Scheme will provide a fund of last resort;
- The Scheme will make payments to mesothelioma sufferers who can prove they were negligently exposed to asbestos in employment provided they were diagnosed on or after 25 July 2012;
- Payments will be fixed according to the Claimant's age;
- Each successful Claimant will receive 75% of the average value of an award that he might receive at Court;
- Important operational details have not yet been resolved;
- The issue as to whether mesothelioma claims should still be exempt from the provisions of the Legal Aid Sentencing & Punishment of Offenders Act (LASPO) have not yet been addressed.
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