Case Studies

The company I worked for has been dissolved. Can I still claim?

Because an asbestos disease is usually not apparent until many years after the exposure to asbestos took place, we find that it is often the case that a potential defendant company has been dissolved by then. However, if the relevant insurers of the company can be traced, it is possible to make an application to the Court to restore the company so that it can be sued. We have been successful in doing this on many occasions. Unfortunately, if those insurers cannot be traced, it will not be possible to pursue your claim against that company.

 

My employer has ceased to trade and their insurers cannot be traced. Do I have any other options?

You can still claim compensation if your employer has ceased to trade. The Department for Work and Pensions administers a scheme called the Pneumoconiosis etc. (Workers’ Compensation) Act 1979 “PWCA” that pays fixed amounts of compensation in cases where the relevant employer has ceased to trade. It is a requirement that an application for industrial injuries disablement benefit is or has been made before payment can be made under this Act.

Payments are made for diffuse pleural thickening, asbestosis, lung cancer if accompanied by asbestosis or diffuse pleural thickening, and for mesothelioma. The amounts are determined by reference to fixed scales according to your age and level of disability. For further information and a guide to compensation levels please see our Guide to Government Lump Sum Payments.

If you have mesothelioma you might become eligible for a substantial payout from the Employers Liability Bureau (ELIB). We expect ELIB to start making payments in 2014 where the diagnosis was made after July 2012.

 

I was not exposed to asbestos in employment. Can I claim under the PWCA above?

No. But if you have mesothelioma you can claim a lump sum under a similar scheme the “2008 Mesothelioma scheme.” Please see our guide to lump sum payments.

 

My disease was caused by exposure to asbestos in military service. Does this affect my claim?

Yes it does. If you have an asbestos disease caused by exposure to asbestos in military service, whether in peace or wartime. You cannot make a compensation claim against the government if the exposure occurred before 1987 because of rules about the armed forces suing the government. You should instead claim a war disablement pension instead of industrial injuries disablement benefit. You can also claim a war pension for an asbestos disease if you were a civilian in HM Armed Forces. We can tell you more about these claims on request.

 

The person affected has now died. Can we still claim?

It is possible for widows and other dependants of people who have died from asbestos diseases to claim compensation against a defendant through the courts. Certain dependants may make claims under the PWCA.

 

What is Industrial Injuries Disablement Benefit?

Most sufferers with an asbestos-related disability caused by employment (but not self employment) after 4 July 1948 will qualify for this benefit. Application is made through the DWP. A medical examination by their Medical Board may be required, except in the case of mesothelioma where it is no longer necessary. Benefit will not be awarded if the Medical Board assesses the level of disability at less than 14%.

 

If I receive Industrial Injuries Disablement Benefit or 1979 Act compensation does this mean that I cannot pursue a case for compensation?

No, but any amounts received may need to be deducted from your subsequent claim and paid back to the DWP.

 

What is the Financial Services Compensation Scheme (FSCS)?

Most successful claims are not paid by the defendants themselves but by their insurers but if the insurance company becomes insolvent, then the defendant will be liable to pay. The FSCS was set up to deal with cases where both the defendant and the insurer have become insolvent and are both unable to meet the claim. In these cases the FSCS will pay:

Where the claim was covered by compulsory insurance (e.g. employers’ liability since 1972), the Scheme will pay 100%.

Where the insurance was non-compulsory (e.g. employers’ liability before 1972), 90% or sometimes slightly more of the remaining amount will be paid.
Where the relevant period of employment was with a nationalised industry, payment will normally be met by the Government.

 

What is an interim payment?

Once court action has begun, and in rare circumstances before then, it may be possible to apply for an interim payment. This is an early payment of part of the damages that the defendants will be liable to pay. It may be substantial in cases where the final damages are likely to be high. It will only be appropriate in cases which are likely to succeed, so that if there is a proper defence to your claim it will probably not be possible to apply for an interim payment.

 

Speak with one of our mesothelioma claims experts

You can also email the team

personalinjury@fieldfisher.com

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