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Mesothelioma and asbestos claims process

Below is a guide to give you an indication of how the claims process will work. Please note that this is to show you how a typical asbestos disease case would work, but we will not always follow these steps exactly, dependant on whether your case or circumstances require a different approach.

Step 1: Establishing a valid claim

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.

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 should be able to 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.

Step 2: Agreeing how legal expenses will be paid

The next step is to ascertain whether you have the benefit of legal expenses insurance through your household, car or credit card insurance. If so, we will contact your insurer to ask them to fund the claim. Otherwise, if we consider your case has a good chance of success, 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 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.

Step 3: Agreeing the type of claim to pursue

Unfortunately, exposure to asbestos dust can generate disease in the present and create the risk of serious asbestos-related diseases in the future. These will be indicated in your medical report where appropriate. 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.

We will advise you of the options and what to consider, but it is your choice which type of claim you wish to pursue.

Final damages

If you claim final damages, you will receive 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. If you do develop any of the specified conditions, however, you will not be able to claim any further damages. This means that you would ultimately be under-compensated for any such future risks.

Provisional damages

If you choose this type of claim, you will receive compensation only for your current asbestos disease and you will be entitled to claim further damages in the future if you develop any of the specified future risks. This means that you would receive a smaller amount for the same asbestos disease now than if you were to claim final damages (whereby you do not receive anything for the future risks). However, if you develop a more serious asbestos disease in the future, you will be able to claim additional damages to compensate you fully.

Generally, the younger the claimant and the more minor the disease, the more reason to claim provisional damages. There are fewer compelling reasons to claim provisional damages for older claimants  already suffering significantly from the disease.

Step 4: Gathering evidence

Once we have established that you have a case and agreed the approach to payment, we will then concentrate on gathering evidence to prove the essential elements of a claim.

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 the party who 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 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.

Damage

This is the physical injury you have suffered. 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. These items can be included as other 'heads of damage'.

Causation

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 are unable to work because of your asbestos disease, you can claim for your loss of earnings.

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.

Limitation

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 still 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.

At this stage we will meet you again to take a detailed statement. This includes as much as you can remember about how, where and when you were exposed to asbestos. We understand it is often difficult to remember every detail, but the success of your claim will largely depend on what you can tell us. The statement will also include details of how you found out about your asbestos disease and how it has affected you.

If you are suing an employer, we will write to HM Revenue & Customs to obtain proof of your employment history. Any documents you have to prove this will also help. We will also contact any witnesses and obtain a medical report. If the prospective defendant is a limited company, unless it is already well known to us, we will carry out a company search of the Companies Registry and/or from our own extensive records.

Step 5: 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).

Step 6: Court action

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 will consider whether the case should be issued in the High Court or the County Court. In both cases, with the help of a barrister and medical experts, we will produced the following documents:

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.

Medical Report

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.

Step 7: Going to trial

Once proceedings have been served, 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.

You will probably be invited to attend at least one conference with your barrister and solicitor before the trial to discuss  aspects of the case and the best way to proceed.

Your case may either settle because the defendant makes an acceptable offer of compensation, or it may proceed to trial. The trial length varies depending on the complexity of the case. Some cases are split so that one hearing deals with liability and another deals with the amount of damages.

Contact us

For a free, no obligation call with one of our industrial disease experts, please call 0800 358 3848 or complete our online enquiry form.