Due to the long period between exposure to asbestos and the development of mesothelioma, it can be difficult for mesothelioma sufferers to trace a former employer (or their insurers) who exposed them to asbestos. The Government recognised this difficulty and, as a result, the Mesothelioma Act 2014 was passed on 31 January 2014. The Act establishes a compensation scheme funded by a levy on insurers.
Around 2,000 UK citizens die each year from mesothelioma. Mesothelioma is a rare form of cancer that mainly affects the pleura (the external lining of the lung) and the peritoneum (the lining of the lower digestive tract). Many cases of mesothelioma are diagnosed at an advanced stage because symptoms are non specific and appear late in the development of the disease. It is almost always fatal with most of those affected by the disease dying within twelve months of diagnosis. Mesothelioma has a strong association with exposure to asbestos and current estimates, according to the Health & Safety Executive (HSE), suggest that around 85 per cent of all male mesotheliomas are attributable to occupational exposures, especially in the building industries. Most deaths occurring now are a consequence of the long latency period (ie, the time between initial exposure to asbestos and the manifestation of the disease) which is typically between 30 and 40 years.
The use of asbestos decreased over the past century and was all but banned in 1999. The continuing increase in claims for compensation arising from negligent exposure to asbestos can be explained in part by the time it takes the condition to develop. According to the HSE:
- The number of mesothelioma deaths has fallen from 2,360 in 2010 to 2,291 in 2011 (per Mesothelioma register).
- Despite a fall in the number of mesothelioma deaths in 2011, the annual number is expected to continue to increase in future years before peaking towards the end of this decade.
- The number of new cases of mesothelioma assessed for Industrial Injuries Disablement Benefit has increased from 1,985 in 2011 to 2,125 new cases in 2012 (IIDB).
- Men who worked in the building industry when asbestos was used extensively are now among those most at risk of mesothelioma.
Public awareness generally as well as medical research has contributed to a rise in claims for compensation. Recent court cases have allowed experts to demonstrate that unlike asbestosis or asbestos-related lung cancer, mesothelioma can be caused by extremely low levels of exposure to asbestos. Consequently it is relatively easy to establish a causal link between exposure to asbestos and mesothelioma.
Also, the prospects for recovery are enhanced by virtue of the Compensation Act 2006 which allows a claimant to recover full compensation against one wrongdoer, even if the claimant was exposed to asbestos by a number of parties over a prolonged period of time.
The Mesothelioma Act provides that persons diagnosed with mesothelioma on or after 25 July 2012 who can prove they were negligently exposed to asbestos and who are unable to trace a former employer or their insurer are eligible for compensation. The compensation they are entitled to will be limited to 75 per cent of the average court award for mesothelioma claims. In England & Wales legal costs will be limited to £7,000 and will be deducted from the compensation paid.
The scheme is a fund of last resort and should only pay out if no relevant employer or insurer can be traced. Some commentators, however, have suggested there is a risk that applications to the scheme may be made without a full investigation to identify a relevant employer or insurer. Of course, this will depend to an extent on how strictly the scheme is administered. However, given payments will currently only be 75 per cent of the average compensation paid by courts, there remains an incentive on claimants and their solicitors to try to trace a relevant employer and/or insurer to recover in full. There is even more of an incentive in Scotland where the average mesothelioma award is approximately £60,000 greater than in England and Wales and where legal costs will generally be higher than £7,000 and paid in addition to compensation.