Asbestos Exposure Claims
As you may have been exposed to asbestos and developed an asbestos related disease such as asbestosis, diffuse pleural thickening, lung cancer or mesothelioma you could be entitled to claim compensation. At Harris Fowler, our specialist lawyers will help you succeed in getting the compensation you deserve. This page will set out the elements of a claim we will need to prove and some hints and tips to help your claim go smoothly.
In order to make a claim for compensation following exposure to asbestos you have to prove three things
- That the organisation/individual that exposed you to asbestos owed you a duty of care
- That the other party fell below the standard of care expected of them
- That their failure to meet the standard of care caused you injury and/or loss
A commonly raised issue in cases of asbestos exposure claims is limitation. The law only allows a period of three years from the date you were first diagnosed with an asbestos related disease to bring a claim. If you have been diagnosed with an asbestos related disease it is important to contact us as soon as possible to begin the process of bringing a claim.
The First Part – Duty of Care
For the most part this is the easiest part of a claim to establish particularly where the company /individual that exposed you was your employer, as the courts have already established that employers owe their employees a duty of care. This duty is to take reasonable care to ensure a person is not exposed to foreseeable harm.
The Second Part – Breach of Duty
The second part of a claim is to show that the other party has failed to take such care as is reasonable in the circumstances either by doing something or failing to do something.
The courts will first consider what a reasonable employer should have done and then whether that standard has been met.
When assessing what the reasonable employer should have done the court will look at the available knowledge at the time of exposure of the risks that asbestos presented. The court will look at any available evidence such as official publications and advisory documents as well as considering the law relating to asbestos use prevailing at the time of exposure.
Knowledge at the time of asbestos exposure is important as the court will only hold the company/individual responsible if it is reasonable that they should have known about the risk presented by asbestos. The reason for this is that any Defendant is only liable for reasonably foreseeable risks; if the risk is not foreseeable at the time of exposure due to a lack of societal knowledge then they may not be liable.
Once it is proven that they should have known about the risks of exposure to asbestos; it will then need to be shown that they have either done something or failed to do something falling below the standard of care they should have provided.
Breach of duty in asbestos exposure claims is often established by showing that an employer has failed to provide personal protective equipment or even identify that asbestos was being worked with.
The complexity of asbestos exposure claims mean it is important to seek the advice of a specialist personal injury lawyer who will be better able to advise you on the facts of your case.
Your solicitor will assess your case and will advise you on the prospects of success; they will help you identify who the responsible party is likely to be.
The Third Part – Breach of Duty Caused Loss
The third and final part of bringing a claim is demonstrating that the employer’s breach of duty is responsible for causing the disease and financial losses being claimed.
Due to the nature of asbestos exposure claims it is often difficult to ascribe the precise cause of an asbestos related disease particularly when exposure will have occurred a long time ago and over a number of years, under different employers and at different work sites.
Because of the complexities in these types of cases the court relies upon the opinion of independent medical experts as to what and who is likely to have caused the disease in question.
Payments from the Government
It is possible to claim lump sum payments from the government (DWP) in cases where mesothelioma has been diagnosed and you are unable to make a civil compensation claim against the employer who exposed you to asbestos either because your previous employer is no longer trading or their insurer is no longer in existence or unable to pay compensation.
Under the 2008 Diffuse Mesothelioma Payments Scheme (2008 Scheme), you will be entitled to claim a one-off payment if you are unable to claim compensation from an employer via a civil claim. For example, if you were self-employed or do not know where you were exposed to asbestos. Another requirement is that you need to be ineligible for a payment under the Pneumoconiosis etc. (Workers Compensation) Act 1979. You must make a claim under the 2008 Diffuse Mesothelioma Payments Scheme within 12 months of diagnosis.
Another claim that can be made is under the Diffuse Mesothelioma Payment Scheme (DMPS). It is worth noting that Diffuse Mesothelioma Payment Scheme claims and 2008 Diffuse Mesothelioma Payments Scheme claims are both different types of claims despite the confusingly similar names.
To claim under the Diffuse Mesothelioma Payment Scheme (DMPS) you must have been diagnosed with mesothelioma on or after 25th July 2012. You must have developed this disease as a result of being exposed to asbestos in the UK. As with the 2008 Scheme, you can only claim if you cannot trace your employer or their insurers and you have not already made a civil compensation claim. Unlike the 2008 scheme, under this scheme you may be able to claim if you were the dependent of a sufferer who has died. This means that if you are either their spouse, or a child under the age of 18, you can make a claim through this scheme. You must make a claim within 3 years of your diagnosis.
Importantly, you can claim for compensation under the DMPS even if you have already claimed under the 2008 Scheme or under the 1979 Pneumoconiosis Act. The amount you previously received will just be deducted from your DMPS payment. You may be able to claim from the 2008 Scheme if your DMPS claim is unsuccessful.
There are a number of state benefits to which you may be entitled if you develop an asbestos related disease, not mesothelioma in particular. An award of Industrial Injuries Disablement Benefit (IIDB), for example, may also lead to entitlement to a payment under the Pneumoconiosis etc. (Workers Compensation) Act 1979 provided that the disease must have been caused by your employment, you cannot or have not taken civil action because your previous employer has stopped trading, you have not brought a court action or received compensation from an employer in respect of the disease and the work which caused your lung disease was more than 20 years ago
Even if an employer – who exposed you to asbestos and may have made a material contribution to you developing an asbestos related disease – is still trading, you may still qualify for a payment. You should apply and allow the Jobcentre Plus to determine your eligibility.
Due to the varying compensation schemes, claim types and time periods for making a claim it is important to obtain proper legal advice. Our experienced personal injury lawyers are always here to help and will advise and guide you through the process of making a claim.
“Harris Fowler are the only ones I would trust. They make everything clear, easy and always deliver total honesty – Thank you to all who worked on my claim.”