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Mesothelioma claims where no insurance can be traced

View profile for Clare Wood
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Global asbestos awareness week 1-7 April 2017

Individuals diagnosed with the asbestos-related lung cancer, mesothelioma, could be entitled to compensation if they believe they were exposed to asbestos in the workplace. In a standard civil damages claim, details are initially submitted to the insurer of the claimant’s previous employer(s). But what if no insurance can be traced? Regretfully, employer’s liability insurance was only made compulsory in 1972 and even following this change in the law, many employers failed to take out cover. In other cases, insurance records have simply been lost due to the passage of time.

When instructing a specialist industrial disease solicitor to investigate a potential claim, something known as an ‘ELTO search’ is carried out. This is a search of an online database of historical insurance details maintained by the Employers’ Liability Tracing Office, a not for profit company operating under the same umbrella as the Motor Insurers’ Bureau (MIB). ELTO searches help the solicitor to confirm whether or not an insurer can be traced. If the search result is negative, further enquiries may be possible. 

If these enquiries are unsuccessful and the company is no longer trading or has insufficient assets, a civil claim wouldn’t be advisable because there is no ‘paymaster’ who can meet the claimant’s damages and costs. All is not lost however, because there is a fund of last resort for mesothelioma sufferers in this country. This is funded by a levy paid by present day insurance companies based on their market share.

Diffuse Mesothelioma Payment Scheme (DMPS)

Launched by the Mesothelioma Act 2014, this is a government compensation scheme under which a lump sum can be paid to sufferers and their dependents. In order to apply, the claimant must meet the following criteria;

  • Their mesothelioma diagnosis was made within the last three years
  • The asbestos exposure took place during the course of the claimant’s employment
  • It is more likely than not that the exposure was as a result of the employer’s negligence and/or breach of statutory duty
  • The claimant is unable to trace insurance for the negligent employer(s)

If the claimant dies before a decision is reached under the scheme, a personal representative can continue with the application (the executor or administrator of their estate). The application can only be made on behalf of their financial dependents i.e. spouse/partner or children.

How much is paid under the scheme?

In November 2018 the government announced that the average payment was £145,000, with a total of more than £133m being awarded to just under 1000 claimants since the scheme was introduced. The tariff is based on the claimant’s age when first diagnosed and payments are made on a sliding scale, from £87,061 for a claimant aged 90 or over, up to £271,120 for a claimant aged 40 or under.

Do I need a solicitor to apply for a lump sum payment?

In our experience, it is invaluable to have the support of a specialist solicitor during both the evidence gathering and claims submission process. We can help ease the administrative burden that individual claimants face, so they can focus on any ongoing treatment and spending quality time with friends and family.  Claimants are required to provide detailed witness statements in support of their applications, along with proof of their employment history and evidence of the efforts made to trace the companies and their insurance policies. A qualified solicitor with proven expertise in handling DMPS applications will guide a claimant through each step of the process and help prevent any avoidable delays in obtaining a payment decision.

Individuals can make their own applications under the scheme, or ask an asbestos victim support group or mesothelioma charity for assistance. Many asbestos victim support groups recommend that legal advice is sought in the first instance.

What if the asbestos exposure didn’t take place at work, or the sufferer was self-employed?

In this scenario, a different application can be made to the Diffuse Mesothelioma Scheme introduced in 2008. This covers what is known as secondary exposure, for example, washing the dusty work clothes of a partner who did work with the material. Unfortunately the tariff of payments under this scheme is lower, ranging from £14,334 for those aged 77 and over to £92,259 where aged 37 and under. Payments to dependents are even lower still and there is also a strict 12 month time limit from the diagnosis date in which to apply.

How can Stephensons help?

Here at Stephensons, we have brought successful claims under the DMPS scheme for our clients. The payments are of huge assistance at what is undoubtedly a very traumatic and stressful time in their lives. Some clients use the money for going on ‘bucket list’ holidays or for paying off debts and mortgages. Others prefer to be able to leave something for loved ones or charities in their will and our wills and probate team can assist with estate planning. We also help our clients with applications to the DWP for other means of financial assistance, such as industrial injuries disablement benefit.

The DMPS lump sum payment itself already includes an allowance of up to £7,000 to pay solicitors’ fees. If a claimant’s legal costs turn out to be less than £7,000, they keep the difference.

If the application is more complex or takes much longer than is typically the case, costs may amount to more than £7,000. A very small number of applications involve an appeal to the scheme’s administrator or even a tribunal hearing. According to government statistics, around one in five applications are unsuccessful, but no breakdown is given as to how many of these were made without the benefit of specialist legal advice. A solicitor will provide the claimant with an estimate of their fees should they exceed the £7,000 allowance.

Given the issues that often arise in tracing insurance, we believe it is time for the insurance industry to provide a similar fund of last resort in other disease types, such as pleural thickening and asbestosis. If you or someone you know might be eligible to make an industrial disease compensation claim of any kind, early legal advice at the point of diagnosis can make all the difference. Please contact our industrial disease team for some free initial advice from our specialists on 0175 321 6399.

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