Sunday, January 31, 2010

Asbestos: A legal Update.

This (late) post is about the UNISON London “Safety Network” meeting that took place in December. All London UNISON branch health & safety officers are invited to these lunchtime events which take place after the main meeting of the London Health & Safety committee.

We had Lorna Webster as our guest speaker. Lorna is an Asbestos Team Supervisor with Thompson’s solicitors. Here is some of her stuff I thought useful

To be successful in any personal injury claim you have to prove the employer was “negligent” and that the injury was foreseeable. Problem with asbestos is the exposure to harm was on average 40 years. It may be as low as 10 or as high as 60 years. It is the asbestos law at the time of exposure which is relevant not now.

We need to prove that the employers knew (or ought to have known) the risk and should have not have allowed employees to use asbestos or given them adequate protection.

Types of asbestos – Blue “crocidolite” (and the most toxic); Brown “amosite” (bad) and White “chrysotile” (Not as toxic as Blue or Brown but wrongly thought to be “not dangerous”) the most widely used. In 1986 it was estimated that the UK had imported 6 million tonnes of asbestos.

Diseases - different asbestos related diseases. Pleural Plaques (usually symptomless - compensation now stopped); Pleural thickening (range from no symptoms to quite bad); Asbestosis (range from no symptoms but can be fatal); Asbestos Induced Lung Cancer and Mesothelioma (fatal – no known cure).

TUC statistics that 1:100 men born in 1940’s will die of mesothelioma. Currently 1800 asbestos related deaths per year rising to 2000 by 2016.

Dangers of asbestos known since at least 1899. There are a number of regulations and reports throughout the last century. If exposure was before 1965 you have to prove that it was “substantial”.

There are two types of settlements. Traditional “full & final settlement” and “provisional damages” settlement. Thompsons usually advise live members with non-fatal cases against settling on a “full and final basis”. If the member were to develop a more serious related asbestos condition later they or their estate and/or dependants could come back for significantly more compensation.

Members may also be entitled to Industrial Injuries Disablement Benefit (IIDB - if at least 14% disabled due to that condition). Mesothelioma claims are fast tracked by DWP and are awarded 100% disability. For more serious cases there may be also disability care benefits. NB: DWP benefits have to be repaid if personal injury claims are successful. If IIDB successful they may be entitled to one off payment under Pneumoconiosis etc (Workers Compensation) Act 1979.

In some cases someone has mesothelioma not due to work (such as a wife washing husband’s overalls) they are not entitled to IIDB but maybe to care benefits and a one off lump sum under the 2008 “Diffuse Mesothelioma Scheme”.

Current asbestos campaigns include compensation for Plural Plaques; Trigger Issue Test case (some insurers are shamefully refusing to pay claiming they are only liable to the asbestos exposure not the development of the disease – payments have been stopped pending possible appeal to House of Lords) and Employers’ Liability Insurance Bureau (ELIB); One in 20 claims fail because the employers has gone out of business and the insurer is untraced. There should be a similar scheme as the ABI motor insurance scheme that pays compensation to people injured by uninsured drivers and finally the campaign for a National Centre for Asbestos related diseases. The Government does not fund research into asbestos related diseases and Mesothelioma is the least researched of the top 20 cancers.

What to do? If a union rep is approached by a member with an asbestos related condition it is essential that they are referred for legal advice. It would be useful if member could get a short letter from GP confirming diagnosis and date this was confirmed. There is the usual 3 year limitation on claims (the date the member became aware or ought to have been aware of condition related to their work). Advise member they will need their full employment history. Thompsons will then contact them and give advice.

The sadist stories are of wives who died from asbestos inhaled while washing their husband’s work overalls or even children dying after cuddling their father while he was in his work clothes.

Personally, although I appreciate the good work done by trade union lawyers such as Thompsons I think that a far better solution to all work related personal injury cases is that it should be taken out of the civil courts and that decent “no fault” compensation should be paid to all workers who suffer from work related activities, paid for by an industry levy.

1 comment:

John Gray said...

Hi Jessica

I don't accept commerical links. I would also suggest that anyone seeking legal advice should always go to their union first or if you are not a union member check out your local hazard centre.