The Appeal in May v Scheme Administrator for the Government's Diffuse Mesothelioma Payment Scheme (DMPS)
The decision from a recent appeal has shed light on a grey area of the Diffuse Mesothelioma Payment Scheme (DMPS), by identifying the range of its applicability.
Mr May was exposed to substantial quantities of asbestos when employed by Collins and Day Limited in the early 1960s. In 2014 he became ill and was subsequently diagnosed as suffering from the asbestos disease of mesothelioma. He contacted Andrew Morgan, partner in Fieldfisher's Asbestos Claims Department, for advice.
Andrew told Mr May that he had a strong case and set about tracing the employer to make a claim. He found that the company was still trading but had limited assets and turnover so that it could not meet Mr May's claim without insurance cover. But the company could not trace insurance cover as far back as the 1960s and so was unable to make any meaningful contribution to any award for compensation or legal costs. Andrew therefore made a claim to DMPS on Mr May's behalf.
The DMPS dismissed the claim on the grounds that a solvent employer existed so that the application fell outside the scheme.
Andrew asked the DMPS to review their decision because the employer was rendered insolvent by Mr May's claim but the DMPS again dismissed the application.
Andrew then prepared and submitted an appeal to the First-Tier Tribunal in February 2015.
On appeal, the Tribunal considered the wording of the relevant section of the Mesothelioma Act 2014 which says that an applicant must be "unable to bring an action for damages… against any employer".
The Tribunal Judge said that Mr May's employer was not solvent because it could not pay all its debts and liabilities (including any award of compensation) as they fell due.
The Tribunal Judge decided that the wording must be construed in a way that gives an effective remedy to the class of persons contemplated by the Act, that is, people suffering from mesothelioma. He held that although Mr May could issue proceedings against his employer any such claim would be "fruitless" and that, as a result, Mr May was "unable to bring" an action against his employer. Because of this he was entitled to the DMPS payment of £137,383.
Andrew Morgan says:
This is one of the first formal appeals against a DMPS decision. It shows the Scheme must give practical effect to the wish of Parliament to ensure financial support is available for mesothelioma sufferers. An applicant can bring a successful claim to DMPS even if the employer still exists if there is evidence that the employer does not have the assets to meet a court claim.
What is the DMPS?
The DMPS, set up under the Mesothelioma Act 2014, allows the Secretary of State to set up a scheme to make substantial payments to mesothelioma suffers, providing they satisfy certain criteria:
- The individual must have suffered asbestos exposure in employment due to the employers negligence; and
- The individual must be diagnosed with mesothelioma on or after the 25th July 2012; and
- The individual's relevant employer must be unable to meet the claim (because the employer no longer trades or has become insolvent); and
- No insurer can be traced so that the employer cannot fund a compensation reward
The DMPS provides a "fund of last resort" when a mesothelioma sufferer or their family is unable to bring a civil claim against the employer. It ensures that those who have suffered as a result of their employer's negligence are still able to access a substantial payment for their injury.