An initial meeting
We will have an initial meeting with you to determine whether we think a successful claim is possible. In a clear-cut case, we may be able to advise you straight away whether to pursue your claim by court action. In a complex case, further work may be necessary before we can do this. Usually we prefer to visit you at home for this meeting but it can be anywhere suitable for you and if you would prefer it to be by video conference or other means, this is possible also.
As well as investigating whether you have a claim for an asbestos disease, we will consider the likely amount of compensation a court would award. In many cases, we won't consider this exact amount until the preliminary medical issues have been investigated, but we can give an outline of the main categories of compensation at the beginning of the case. The investigation into the value of your case may take some time and may involve expert evidence in complicated cases.
During your claim we will never expect you to attend appointments outside of your home. We can visit you or telephone and can help you with video conferencing where necessary.
Protecting you against legal expenses
To give you total peace of mind about any fees for our work we will make initial checks to ascertain if you have the benefit of legal expenses insurance through something like your home contents or credit card insurance. If you do not then we will act for you on a no win, no fee basis, which means we will not charge you if the case is lost. We will also take out an insurance policy where necessary, to cover the fees from the other side which you would otherwise need to pay if the case was lost.
If the case is successful, we recover all our fees from the losing defendants, on top of your compensation. The various options on how to fund a claim will be fully explained to you at our first meeting.
Agreeing the type of claim to pursue
Unfortunately, exposure to asbestos dust can generate disease in the present such as diffuse pleural thickening or asbestosis and create the risk of serious asbestos-related diseases in the future. The medical report that we will obtain will outline if there are any such future risks. If this is the case, you are entitled to compensation both for your current condition and for those future risks and the law gives you a choice about how you claim.
Whilst we will advise you of the options and what to consider, it is your choice which type of claim you wish to pursue. The options are between final damages and provisional damages as described below.
If you claim final damages, you will receive one amount of compensation both for your current condition (including any loss of earnings and other expenses) and for future risks. If you do not develop any other asbestos disease and/or your present condition does not worsen, you will still have received a modest amount for those risks. On the other hand, if you do develop any of the specified conditions, you will not be able to claim any further damages and this means that you would ultimately be under-compensated for the further condition
If you choose this type of claim, you will receive compensation only for your current asbestos disease with the proviso that should you develop any of the specified conditions predicted you will be entitled to claim further damages. This means that you would receive the typical amount for the asbestos condition you have now, (without anything in addition for the future risks). However, if you develop a more serious asbestos disease in the future, you will be able to claim full additional damages to compensate you properly.
Generally, the younger the claimant and the more minor the disease, the more reason to claim provisional damages.
What you need to prove
With your assistance, it is our job to gather evidence to prove the essential elements of a claim and these are described below:
Duty of care
As with all claims, it is necessary to show that a duty of care was owed to you, the injured person, by whoever exposed you to asbestos.
If you have been exposed to asbestos in the course of your employment, there is usually no difficulty in showing that you were owed a duty of care.
Sometimes there is also exposure to members of an employee's family, for example as a result of dust carried home on clothing and tools, or you may have lived close to a factory manufacturing asbestos products. In both these circumstances, it is sometimes possible to prove a duty of care.
Breach of the duty of care
We need to show that there was a breach of duty (negligence) in allowing the exposure to occur and doing little or nothing to prevent it.
Often particular duties will be specified in Acts of Parliament, such as the Factories Act, and failure to comply with these will be breaches of statutory duties.
Everything you can tell us about the circumstances in which you were exposed to asbestos will help to prove these breaches of duty. For this reason, it is important for you to give as much information to us as possible at any stage of the claim.
After meeting with you, we will write your statement that details how you were exposed to asbestos by those who owed the duty of care to you and how that duty was breached. The statement is the foundation of your claim and you will need to put as much detail in it as possible as well as check it carefully to ensure it is as accurate as possible. If details come back to mind later, the statement can be updated.
If you know of anyone who can confirm the details of your exposure to asbestos we would want to speak to them also. It makes your claim stronger to have the details corroborated by others.
To assist with dates we will write to HMRC for proof of your employment and if you have any documents at all relating to your jobs you should show them to us at the first opportunity.
If the prospective defendant is a limited company, unless it is already well known to us, we will carry out research on the Companies House Registry to correctly identify it. Thereafter we need to establish if it had insurance at the time you worked there and via the Employers Liability Tracing Office (ELTO) or our own extensive records. It is essential that you can establish the exact name of your employer and any documents you have from them can be useful for this.
This includes the condition or physical injury you have suffered and in order to confirm this we will obtain a medical report for you. You will also be able to claim for other losses and expenses resulting from the asbestos disease such as loss of earnings, help around the home or treatment expenses. These items can be included as other 'heads of damage'. You should tell us of any expense you think is related and keep all receipts.
You must prove that your asbestos disease has at least probably been caused by the party being sued (the defendant). Issues may arise where there has been significant exposure to asbestos elsewhere e.g. during employment by another employer who cannot be sued.
If you wish to claim financial loss, you will need to prove that your losses have probably resulted from the asbestos disease. For example, if you now need gardening help whereas before you did it yourself you can claim the reasonable cost of a gardener.
In the case of lung cancer, which can be caused by various agents including smoking, you need to prove that there has been heavy exposure to asbestos. The link between asbestos inhalation and lung cancer is well reported so if a patient has lung fibrosis and a history of substantial exposure to asbestos dust, this will be readily diagnosed as asbestosis even if they have also been a smoker. The Department for Work and Pensions (DWP) will also award disablement benefit if lung cancer is accompanied by asbestosis.
If a claimant has lung cancer, has been a smoker and has been exposed to asbestos but does not have asbestosis, some courts have held that this is attributable to exposure to asbestos. We have achieved settlements in lung cancer cases where there is no asbestosis, but this remains a difficult legal area.
There is a statutory limitation period of three years within which court action should be commenced. Usually, in asbestos disease cases, the period will run from the date on which you knew you had an asbestos disease. The court has discretionary power to override this limitation period, so it is always worth discussing a claim even if you think you may be outside limitation, but any delay can cause difficulties.
In a fatal case, the three-year limit usually starts at the date of death or on the date when the person bringing the claim on behalf of the deceased first knew of the asbestos disease. It is still important to see a solicitor as soon after the event as possible while memories are fresh.
We will advise if we think that limitation is a problem and will act immediately where necessary to protect your position as far as possible.
Contacting the defendants
Once the facts are gathered and we are ready to proceed, we will contact the defendant and inform them a claim is being made against them. We will write to them outlining the case, detailing any evidence and the impact on you of the exposure to asbestos. The defendant is permitted three months to conduct investigations (sooner in a mesothelioma claim).
Three months after we have contacted the liable party, we can issue proceedings to commence court action (sooner in a mesothelioma case). In a simple case, we aim to issue proceedings as soon as possible after three months.
We issue all asbestos related cases in the High Court specialist asbestos list. (We have particular expertise in this procedure and Fieldfisher helped with the creation of this protocol). This specialist list is known to deal with these cases much more efficiently. The issue of proceedings is the point of us sending the documents to prove your claim to the court, after that the case will follow a timetable set by the Court.
The documents sent to court are compiled with the help of a barrister and medical experts, and they are as follows:
Particulars of Claim
This will set out the facts upon which your claim is based and the allegations of negligence and breaches of statutory duty we intend to pursue.
Schedule of Damages
This will set out the financial losses incurred to date as a result of the asbestos disease. It will also include a broad outline of any likely future losses.
This reports your current condition and prognosis and it is usual for both the schedule of damages and the medical report to be updated as your case proceeds towards trial.
Going to trial
Once proceedings have been served on the Defendant, procedural steps must be followed to progress your case to trial. The court procedural judge sets dates for exchange of witness statements, documents and experts reports and, in many cases, fixes a date for the hearing.
Your case may settle because the defendant makes an acceptable offer of compensation, or it may proceed to trial. If necessary, we will have a conference with your barrister to discuss your claim in full prior to any trial. Because we assess your case carefully most cases settle without the need for a trial and it is not something you should worry about.