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The Mesothelioma Bill: A Fraction of the Justice They Deserve?

About The Author

Lewis Bedford (Former Writer)

Lewis is a third year law student at Newcastle University. Lewis' main interest lies in politically weighted areas of law, in particular regarding conflicts of law and religion. He is also interested in legal philosophy.

The malignant nature of Mesothelioma, and the equally unjust legislation underpinning industrial disease liability has left victims unreservedly welcoming any reform within the sector. However, the 2013 proposals, reviewed last winter, offered little comfort for those in an already uncomfortable position. 

Mesothelioma is a type of cancer most commonly associated with exposure to asbestos. It is fundamentally different from Asbestosis, a disease also caused by exposure to asbestos. Ordinarily, once diagnosed, those affected have only months to live. With few symptoms, harbouring an average latency of thirty to forty years, those counting the days post-diagnosis are left helpless in terms of seeking the justice they deserve.

As with many industrial disease cases, pinpointing the precise moment when the harm first developed poses a number of causative questions. Mesothelioma is not necessarily caused by accumulative exposure to asbestos as with its counterpart Asbestosis, but instead can be caused by one single fibre (see generally, Fairchild v Glenhaven Funeral Service Ltd per Lord Bingham, a leading case on this front). If, as often is the case, those claiming malpractice have worked for a number of employers that have dealings with asbestos, the question of who is truly liable is wholly uncertain. Nevertheless, unprotected exposure does undoubtedly increase the risk of illness. As such, the courts have adopted a similar route to that of the Asbestosis claims running throughout the late twentieth century enabling claimants to jump a number of causative hurdles. Yet, despite this evidential-springboard, Mesothelioma sufferers still face further problems.

A complicated claim for compensation such as those faced by Mesothelioma sufferers can take up to two years to complete. Due to its dormant nature, sufferers often die before their claims have been fully heard.

Making matters worse, those affected routinely struggle to find the employers they believe to have put them at risk. Often, thirty to forty years on, their respective businesses are untraceable. The slow but steady prohibition throughout the last fifty years has no doubt caused a number of businesses to deteriorate into non-existence. Additionally, as Tony Whitston astutely puts it: 

For decades, insurers wantonly destroyed or simply lost records of employers’ liability insurance – insurance which victims of very long latent asbestos diseases, such as mesothelioma, would later come to rely on long after the companies who exposed them to asbestos had ceased trading. Unmoved by the suffering and incalculable loss of life caused by asbestos, insurers persistently refused to accept responsibility for their failure to retain records and turned their backs on dying asbestos victims, who searched in vain for evidence of insurance which might provide some security for the families they would leave behind.

Lord Freud, when reporting on the Bill on the 17th of July 2013, alluded to a similar point:

I think we all agree that we must work not only to support those who have fallen foul of poor record-keeping and tracing in the insurance industry but to correct it and stop it happening in the future.

Bearing all this in mind, the Government set out to tighten up the process. By forcing a levy on insurance companies, the government intended to create a Diffuse Mesothelioma Payment Scheme (DMPS) which would allow those diagnosed who cannot locate employers to quickly claim compensation. Additionally, by creating a Secure Mesothelioma Claims Gateway (SMCG) whereby information could be quickly transferred, and a Mesothelioma Pre Action Protocol (MPAP) establishing a more efficient timescale, the Government hoped to speed up the judicial process. However, on review, these proposals were not welcomed with open arms.

The rationale backing the bill has come under heavy fire. Harminder Bains believed the Association of British Insurers (ABI) were behind the proposals in order to cut costs on the predicted increase in Mesothelioma claims:

The Association of British Insurers (ABI) have realised that incidences of mesothelioma are increasing and epidemiologists have advised that it is yet to peak... The ABI is looking after their stakeholders' interests and attempting to make savings in payments that it makes to mesothelioma sufferers.

Indeed, Whitston also believed insurers were the ones driving change under such  motives:

The payment scheme is the result of two years’ negotiation with insurers held behind closed doors in which insurers drove a hard a bargain, reducing scheme benefits well below the limit of acceptability. With threats of court action and utter intransigence, insurers have bullied and faced down the Government, thereby gaining an overwhelming advantage.

Whitston stated, the ABI outright refused to exceed 3% Gross Written Premium; their intake from the insurance they offer. According to Whitston, the ABI openly admitted any excess exceeding 3% would be passed onto those taking out insurance. In practice, insurers were forcing the government to act in their favour at Mesothelioma sufferers expense. The Bill's payment scheme was set at 70% of the average civil compensation, however, many believed this was grossly undercutting due justice, with those put at risk only capable of receiving a fraction of what they are entitled to:

In the face of such financial loss, not to speak of the loss of life, does fairness lie in mesothelioma sufferers continuing to subsidise insurers

On the other hand, insurers are ultimately running a business. Unfortunately, bargaining in many respects is the backbone of the legal process. Thus, under any claim, the moral and financial grounds supporting both conflicting argument must be balanced against one another. Indeed, Lord Freud was able to increase the bar to 75% despite the ABI's unwillingness. Additionally, the Government clearly understood the financial pressures upon the insurance sector, proposing to gift £17 million and also holding £30 million on loan in order to smooth-out the insurgence of claims, from past and present.  Nevertheless, it must not be forgotten that these unfortunate people have been wrongfully harmed and justice is needed. Whether the 75% cap is justifiable is an important issue that needs to be addressed.

Nonetheless, the Diffuse Mesothelioma Payment Scheme is, on its own, undoubtedly a valuable asset for those who unfortunately have little option. Indeed, something is better than nothing and coupled with the long, cost-ineffective nature of industrial liability, the latter seems unavoidable in a majority of cases. However, it is important to ensure all who desire compensation have the option to seek it and indeed this was the objective of the reform. Arguably, the Mesothelioma Pre Action Protocol would have left victims who have located their past employer in a worse situation.

Harminder Bains elaborated on this, stating that the Pre Action Protocol would ultimately add to the complexity of the already complicated process. Bains states victims would have to take “numerous onerous steps” prior to launching a claim. For those who would struggle to obtain vital expert's reports and witness statement the already lengthy proceedings these victims are faced with would only be extended further. With time unrelentingly ticking away the MPAP offered little comfort.

Thankfully, in the wake of 2014, the Government dropped the Pre Actions proposals in light of the above critique. The Diffuse Mesothelioma Payment Scheme, however, is set for royal assent. Additionally, the Government are currently looking into furthering the idea of an electronic gateway in order to shorten claims, however, as of yet progress looks bleak. For now, however, the system is still critically flawed. Let us hope the future reforms are able to provide justice for all those in need.

Further Reading

Frances Gibb, The Times, What Could the Introduction of the Mesothelioma Pre-Action Protocol Mean in Practice? (September 23rd, 2013)

Lord Freud, House of Lords Report, Mesothelioma Bill, ( July 17th, 2013)

Ministry of Justice, Industrial Disease Victims Central to Changes, (December 4th, 2013)

Tony Whitston, IBAS, The Mesothelioma Bill – A Gift to Insurers, (2013)

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Tagged: Employment Law, Justice, Tort Law

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