| What is Asbestos? |
| Uses of Asbestos |
| Dangers Caused by Asbestos |
| Benefits |
| Private Claims |
| FAQs |
| Glossary |
FREQUENTLY ASKED QUESTIONS IN ASBESTOS COMPENSATION CLAIMS
Can I still claim if the employer who exposed me to asbestos has gone out of business?
How much compensation will I get?
Will my compensation be adjusted if my illness gets worse?
What happens when a Court proceedings are started?
Can offers to settle be made before a Court hearing?
Do my costs come out of my compensation?
To obtain an award of compensation in a civil case you have to prove that your opponent has been negligent in exposing you to asbestos and failing to take sufficient precautions to prevent you from developing an asbestos related disease or condition. This is known as establishing “liability”.
Usually the exposure to asbestos occurred at work and the claim will be made by against your employer/s. Your employer’s legal duties include obligations to monitor and adequately ventilate the working environment. You should also have been provided with adequate protection from asbestos dust.
Other people may also owe you a legal duty to prevent your exposure to asbestos. For example, the occupier of a building that contain asbestos in its building materials, or suppliers of asbestos products.
Sometimes members of your family can be exposed as a result of exposure to asbestos fibres carried home on work clothing and tools. Claims may also be made in these circumstances but it is always necessary to show that your opponent owed you a duty of care, and a breach of that duty.
The issue of liability is determined on “the balance of probabilities”, that is to say, you must prove that your asbestos disease has at least probably been caused by your opponent. There is usually little difficulty in showing this. However problems can arise where, for example, you have had significant exposure to asbestos elsewhere (for example, with another employer who you cannot find). You must establish that your opponent has made a “material contribution” to your asbestos disease.
You also have to show that you suffered “damage” as a result of your opponent’s lack of care. “Damage” is the physical injury that you have suffered. A medical report will be required to prove that you suffer from an asbestos disease.
We will provide you with our as best an indication of your prospects of success as early as we can. However detailed medical evidence may well have to be obtained before we can give an opinion. For a free assessment of your case click here.
When should I make a claim?There are strict time limits during which a claim for compensation must be made. A person usually only has 3 years to start court proceedings from the date they become aware they are suffering from an asbestos related disease caused by their work or other asbestos exposure.
In some cases the courts may waive this 3-year time limit if you can show that you had a good reason why you did not pursue your claim earlier. So it is worth discussing a possible claim even if you think you may be outside the 3 year claim period (which lawyers refer to as “limitation period”).
As soon as you think that you may be suffering from an asbestos related condition or disease you should seek legal advice immediately!
Can I still claim if the employer who exposed me to asbestos has gone out of business?Yes, if their insurers can be traced it is possible to apply to the court for the company to be “restored” so that it can be sued and compensation obtained.
Where it is impossible to pursue a claim against the employers or their insurers there is a special application that can be made to the UK government for compensation. This is a claim under the provisions of the Pneumoconiosis (Workers Compensation) Act 1979. Fixed scales apply for the compensation based on age and level of disability. It is possible for widows and other dependants of people who have died from asbestos diseases to claim under this scheme.
Can a claim be made by the widow or family of a person who suffered from an asbestos related disease?Yes. It is often possible for relatives and dependants to bring an action on behalf of a deceased's estate and certain dependants may be able to claim for loss of dependency. Suffers from asbestos diseases and their families deserve compensation.
How much compensation will I get?The more severe your medical problems, the more damages you will get. A lot depends on the extent of your disability and whether your condition is likely to progress to a more serious asbestos-related disease.
As a yardstick we consult our extensive library of previous cases to see what compensation the courts have awarded in cases similar to your own. We also look at “Judicial Studies Board Guidelines”. These give an approximate indication of the level of compensation that you will receive for the pain, suffering and disability that you suffer as a result of your condition. This element of your compensation is known as “general damages”.
You may also receive compensation for financial losses and expenses that you have incurred directly, or indirectly as a consequence of your illness. This will include out of pocket expenses such as travel to the hospital, loss of earnings and many other monetary claims that can be quantified. This additional compensation is known as “special damages”. This compensation may be extensive and can include estimates of future expenses (such as future nursing care, and the cost of alterations to your home to help you cope with a disability).
Interest is also payable on your compensation award. On “general damages” interest can be claimed at 2% per year from the date of service of the court claim form. On “special damages” Interest is payable at 3.5% per year.
Whatever asbestos related illness you are suffering from, we will consider all potential types of compensation that you can claim, (referred to as “heads of damages”), and use our expertise to maximise your award.
Will my compensation be adjusted if my illness gets worse?If it is likely that your condition will seriously deteriorate some time in the future then you may be able to get a special type of compensation called “provisional damages”.
For example if you presently have pleural plaques or pleural thickening you can claim, and receive, compensation for only those illnesses. However the medical evidence may suggest that there is a possibility that your condition may deteriorate into a more serious illness such as asbestosis, mesothelioma, or asbestos related lung cancer.
An award of provisional damages allows you to go back to court for more compensation should your disease worsen. The choice of whether to ask for provisional damages or a final set amount of compensation is up to you. A final award can be made under which you will receive compensation both for your current condition and for the risk of a future deterioration in your condition. If you are young and have a minor disease it might be best to ask for provisional damages. However, if you are older and suffering from a serious disease you may prefer to claim a final award based on an estimate of future injury.
How long will my claim take?This depends on:
- whether your employer, or other person who you say exposed you to asbestos, disputes whether they are to blame for your exposure to asbestos (this is known as the issue of “liability”).
- how serious your asbestos related disease is and the extent of your disability.
Generally, for less serious conditions, where liability is admitted, your claim could be concluded in around twelve months from the date we commence work. For serious conditions, or where liability is disputed, the claim may take several years.
Sometimes if is possible to apply for an “Interim payment” after a court action has begun but before the case is finally determined. This is an early payment of part of the damages that your opponent will be liable to pay. However such an award is comparatively rare and usually only made in cases in which the final damages are likely to be high.
How much will my claim cost?If you win we are usually able to recover most, if not all, your legal costs in addition to your compensation. How much of our costs you will pay, and the extent to which you may be liable for costs if you lose, depends on how you fund your claim.
See “Ways to Fund Your Claim” for more details. If your claim is a strong one, it is unlikely that you will have to fund the case out of your own pocket.
Will I have to go to Court?About 90% of all claims for compensation for personal injuries are settled without a formal court hearing. So it is unlikely that you will find yourself in a witness box. However, it may be necessary to “commence Court proceedings”, (that is to say, start a Court case), in to protect your interest. Most of these Court proceedings are dealt with by paperwork and there are set rules laying down the procedure to follow. The great majority of cases settle without the case proceeding to a full hearing.
What happens when a Court proceedings are started?-
Court proceedings are started by filing special documents with the “County Court”. These are a claim form, particulars of the claim, particulars of “special damage” and a medical report. You will be referred to in these papers as “the Claimant”. These papers are then served on your opponent (“the defendant”).
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The defendant must then files a defence (or an admission of the claim) with the court within a set time.
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The Court then sends an “allocation questionnaire” to both parties. This is a form that asks the lawyers questions about how the claim can best be dealt with and which type of procedure should be followed. There are several different “tracks” that can be followed depending on the value of your claim and its complexity. For instance, if your claim is less than £1,000, it is dealt with under the “small claims track” court. No legal costs can be recovered in small claims cases. Claims valued between £1,000 – £15,000 will usually be dealt with as a “fast track”. Claims valued over £15,000, or which involve more complex issues of law, are dealt with under the “multi track”.
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The Court considers the completed allocation questionnaires and will then “issue directions”, that is to say, give binding instructions on how the lawyers should deal with the claim. For instance the directions will say how each side should disclose any relevant documents to each other and say what witness statements that need to be produced.
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Sometimes a “Case Management Conference” may be held to discuss these or other issues and you might possibly be asked to attend.
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If liability is disputed, the court may give permission for a report from an expert to be prepared.
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It is more probable that your opponent may “admit liability” (agree that he or they are at fault) but will argue over the amount (or “quantum”) of compensation that you should receive. The Court will often then give permission for expert medical reports to be submitted and relied upon.
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The Court may order that other expert reports be prepared to help quantify the amount of “special damages” (i.e. expenses incurred because of your illness).
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If matters cannot be agreed between the parties the Court will fix a trial date when the matter will be heard. This will either be a set (“fixed”) date, or the Court may only say that it will occur between certain dates as and when there is spare court time. Setting a court date is referred to as “listing” a hearing. Before the case is listed, your and your opponent’s, lawyers will complete a “listing questionnaire” specifying, for example, dates when all witnesses will be able to attend court.
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Some times there will actually be two hearings. One to make a decision over liability and one for assessment of the amount of compensation to be paid. You will usually be represented by a solicitor, or a specialist barrister, at any trial on liability or hearing for assessment of damages.
Can offers to settle be made before a Court hearing?
Either side can make a formal offer to settle the claim, either before Court proceedings are started, or at any time up to the trail. Some cases settle at the door of the Court room itself.
A formal offer to settle is usually known as a “Part 36” offer or payment. These offers can be made over the issue of liability or the amount or “quantum” of your compensation (“damages”).
Such offers require careful consideration and advice from a lawyer because there are special rules about who pays for the cost of court proceedings that continue after a part 36 offer has been made. If you do carry on with the Court proceedings and do not beat a “Part 36 Offer” then you may be ordered by the Court to pay your opponent’s legal costs.
For more details see “Ways to Fund Your Claim”.
Do my costs come out of my compensation?This will depend on how you fund your claim. Usually you will have to pay a small part of the “Success Fee”. You may also have to pay some of your opponent’s costs if you do not beat a Part 36 Offer (see above).
Partner : Philip C. Thompson
Regulated by the Law Society
Thompson & Co Solicitors
9 Green Terrace
Sunderland
Tyne & Wear
SR1 3PZ
