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 if you have a valid claim
Initially we will meet with you to determine whether we think there is a successful claim to be made. In a simple case, we may be able to advise you at an early stage 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 if you have a claim for an asbestos disease, we will consider the likely amount of compensation that a court would award. In many cases we will not seriously consider the amount of compensation until the preliminary medical issues have been investigated, but we will always be able to give a broad outline about 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 accountants’ evidence in complicated cases.
Step 2 – Agreeing how legal expenses will be paid for
The next step is to check to see if you have the benefit of legal expenses insurance through your household, car or credit card insurance. If you do, we will contact your insurers 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 that 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 also 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. However, all of the various options on how to fund the claim will be fully explained to you in more detail at our first meeting.
Step 3 – Agreeing the type of claim to pursue
Unfortunately, exposure to asbestos dust can give rise not only to diseases in the present, but also to the risk of serious asbestos-related diseases in the future. These will be indicated in your medical report if 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 this.
We will advise you of the options and things to take into consideration, but this is your decision to choose which type of claim you wish to pursue.
If you claim final damages, you will receive compensation both for your current condition (including any loss of earnings and other expenses) and for the future risks. If you are fortunate enough not to 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 in respect of any such future risks.
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 (because 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 in respect of that.
In general, the younger the claimant and the more minor the disease, the more reason there is to claim provisional damages. There are fewer compelling reasons to claim provisional damages for older claimants who are already suffering significantly from the disease.
Step 4 – Gathering evidence
Once we have established that you have a claim 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 in those circumstances.
Sometimes there is exposure to members of employees’ families, for example as a result of dust carried home on clothing and tools. Or you may have lived near to a factory manufacturing asbestos products. It is sometimes possible to show a duty of care in these circumstances.
Breach of duty of care
We have to show that there was a breach of duty (negligence) in allowing the exposure to occur and doing little or nothing to prevent this.
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 that you can tell us about the circumstances in which you were exposed to asbestos will help to prove these breaches of duty.
This is the physical injury that 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 a loss of earnings. These items can be included as other “heads of damage”.
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 the losses have probably resulted from the asbestos disease. For example, if you are unable to work because of your asbestos disease then you will be able to make a claim for your loss of earnings.
In the case of lung cancer which can be caused by a variety of agents, the most well-known of which is 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 is still 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 three year limitation period so it is worth discussing a possible claim even if you think you may be outside the period, but any delay can only 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 very important to see a solicitor as soon after the event as possible whilst memories are fresh.
We will give you advice if we think that “limitation” is likely to present a problem, and we will take action, immediately if necessary, to protect your position as far as possible.
At this stage we will meet with you again to obtain a detailed statement. This must include as much as you are able to remember about the circumstances in which you were exposed to asbestos. Often this will mean trying to recall events that happened many years ago. We understand this is difficult 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 the effect this has on you.
If you are suing an employer, we will write to the HM Revenue & Customs at this point to obtain proof of your employment history. Any documents that 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, then unless it is already well known to us, we will carry out a company search at the Companies Registry and/or from our own extensive records.
Step 5 – Contacting the defendants
Once the facts are gathered and we are happy to proceed with the case, we will then contact the defendant, and inform them that a claim is being made against them. We will send them a letter outlining the reasons for bringing the case, detailing any evidence and the effect that the exposure to asbestos has had on you. The defendants are then legally allowed three months to carry out investigations (sooner in a mesothelioma claim).
Step 6 – Court action
Three months after we have contacted the liable party we are entitled to then 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 the three month period.
At this point we will consider whether the case should be issued in the High Court or in the County Court. Whatever the venue we will, with the help of a barrister and the medical experts, draw up 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 which we intend to pursue.
Schedule of Damages
This will set out the financial losses which have been incurred to date as a result of the asbestos disease. It will also include a broad outline of any likely future losses.
A Medical Report
This is on your present 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 have to be followed in order 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 in order to discuss various aspects of the case and the best way to proceed.
The case may either settle because the defendants make 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.
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