At first sight, the government’s change of heart on asbestos related disease liability back in March this year was a ray of hope for many people who had discovered that they had developed asbestosis, mesothelioma or some other disease due to their exposure many years ago. In some cases, it would sadly be only the surviving family members who might benefit from the changes in the law.
The essential change in liability was the shift from the time that the disease was first noticed to the time that the disease would have been caused, i.e. when the person had been exposed to the deadly filaments.
This change meant that anybody who had developed the disease could put in a claim against an insurance policy which was in existence at the time of the exposure. In most cases, the symptoms of the diseases involved take many years or decades to manifest themselves in which case most of the victims had already left their jobs and were no longer covered by an insurance policy that would be of benefit.
The decision by the Supreme Court in March led to a significant increase in the number of claimants who were able to claim compensation from their previous employers, the manufacturer of the asbestos product or the company that actually mined it.
However, this is easier said than done and the whole issue has become quite complex, as might be imagined when considering attempting to seek out companies that were operating many years ago.
For a start, the original employer may no longer be operating, but the original insurance company may very well still be in business so a claim can then be lodged with them.
Alternatively, if the insurance company no longer exists, the company that mined or manufactured the product may be involved, or their insurance companies.
In many cases, asbestos mines and manufacturers went out of business in the aftermath of the discovery that asbestos could lead to chronic disease and fatalities. In some cases, the companies were forced to develop funds which were set aside for anybody who developed an asbestos related disease. Where these funds can be utilised, they may be available for a compensation claim today.
Failing these alternatives, the claimant still has recourse to the government’s own funds. The Pneumoconiosis Act 1979 set aside funds which were meant to cover the eventuality that companies that were liable had either gone bankrupt or had closed without any existing funds remaining.
Another possibility is the existence of a parent company that owned the company that employed the asbestos victim when the exposure too place. In this situation, there is no automatic right to claim against the parent company. The Court has to decide whether the parent had a strong enough tie with its subsidiary to establish that it should provide duty of care to the original workforce.
In the worst situation are those people who had exposure to asbestos during their service with the military. Despite the Supreme Court ruling, it does not apply to those in the military. If an asbestos disease victim was exposed prior to 1987, which would probably be true for most cases of those who were in the forces with the disease today, there is no entitlement to a personal injury claim.
The only recourse is an application for a “war pension” or, if the disease developed while in service after 1st April 2005, a claim can be made with the Armed forces Compensation Scheme (AFCS).