Yes, if at all possible, as medical specialists have found out that approximately 95%
of all mesothelioma cases are caused by exposure to asbestos (usually in
the workplace) and, more often than not, someone else (be it an employer,
factory owner, or asbestos manufacturer) is to blame. Often people say
“but, no one knew of the risks in those days; it was so long ago”, and put
off the idea of taking legal advice, assuming nothing can be done. In
actual fact, more often than not, there is a legal remedy, even if an
employer has apparently ceased to exist. Therefore, it is unsafe to assume
that no legal action can be taken.
2-Do I need to see a solicitor immediately?
Depending on the treatment you are receiving and how you are feeling, it
is advisable to take legal advice as soon as you possibly can as there are time
limits for all personal injury claims. As a general rule a court action
(“proceedings”) must be started within 3 years of the diagnosis (or from the
time you first suspect that you are suffering from an asbestos related
disease). Although the Court has a discretion to set aside the 3 year
“limitation period” (as it is called), technically your claim would be time
barred if you did not issue proceedings within the 3 years. In any event,
given the poor prognosis, most people do not want to delay taking legal
action. Since the civil justice system was reformed in 1999, claims do not
tend to take as long as they did, but it is still possible to have a claim
“expedited”, if the medical evidence suggests that someone’s life
expectancy is very limited.
3-Can I seek the services of any solicitor?
Most solicitors now tend to specialise; the days of the “general practitioner”lawyers
are long gone. Even so, regrettably, some solicitors who are not
experienced in this particular field do take on mesothelioma claims and
that can have terrible consequences, especially as most employers’
liability insurance companies (on the other side) instruct specialist firms to
defend such claims. In that situation,you will be at a great disadvantage because it would not be a level playing field.
Therefore, it is always sensible to seek out a solicitor who specialises in
asbestos related disease litigation. The Law Society{tel no 0870 606 2555} in london has a list of specialists and so do various victims of asbestos support groups (for example OEDA andClyde
Action on Asbestos). Before instructing a solicitor,you should ask about his/her qualifications and track record. For example, are they a member of the Law Society’s Personal Injury Panel and/or the College of Personal Injury Law (CPIL). How many asbestos related disease cases
have they successfully concluded within the last 3 years? Is the person
you are dealing with a qualified solicitor?
Will it cost me a lot of money?
Although Legal Aid is now rarely available for personal injury claims, the 3
main funding options are:
• Conditional Fee (“no win: no fee”) Agreement
• Trade Union funding
• Legal expenses insurance
As a consequence of changes introduced by the Access to Justice Act
2000, pursuing a personal injury compensation claim should not cost you a
lot of money. Most (good) solicitors offer a free initial interview, even if a
home visit is required (as is often the case). The solicitor should then
discuss the various funding options at the outset, before any claim is
intimated. If you are in a trade union/professional association, or have
legal expenses insurance cover, then you may not have anything to pay,
subject to the terms of the union agreement, or legal expenses insurance
policy. If your solicitor is prepared to take the case on a “no win: no fee”
basis, then you may have to pay a one off insurance premium (which is
recoverable in the event of a successful claim). However, the insurance
cover will protect you against the risk of having to pay the other side’s
costs in the event that the claim is lost or discontinued (provided court
proceedings have been started). If you are successful, then the opposing
party/insurance company will pay the claimant’s basic legal costs and also
a “success fee”* in addition. Following the introduction of the new rules,
relating to costs, claimants are now in a much better position than they
were and you may not have to pay anything at all if the solicitor operates a
“no cost to you” policy. However, be aware that some firms/organisations
offering “no cost” policies/deals may not necessarily have the relevant
expertise, as they mainly deal with “fast track” (low value) personal injury
claims. Industrial disease claims are complex and require skillful handling.
[*This is the lawyers reward for taking the case on and facing the
possibility that he/she will not be paid anything at all if the case is lost] 18
4-Will I have to show up in court?
Most likely not, as most personal injury claims are now settled, either before court
proceedings are commenced, or before the final hearing (trial). A very
small percentage of claims (about 1%) are assessed by a judge (at the
trial stage). Therefore the chances of you appearing in court are slim, but
not impossible. Your solicitor and legal team will explain the court process
to you and, if there is a prospect of you having to give evidence in court,
then you will be well prepared and well supported.
5-I am in a Trade Union/professional association - can they help me?
Very often, yes. It is a legal requirement that all the various funding options
should be explained to you at the outset and, if there is a possibility that
your membership organisation may fund your case, then that option should
be explored. However, many trade unions, for example, are not prepared
to provide legal aid/financial assistance if a person has ceased to be a
member of that trade union, or if the relevant exposure (to asbestos) took
place before they joined the union. Many former trade union members are
therefore disenfranchised to that extent. However, with the advent of
conditional fees, you should not be placed at any disadvantage, provided
you can find a solicitor who is prepared to take on your case on a “no win:
no fee” basis.
5-My relative died recently with mesothelioma - can i still take legal action?
Yes you can as it is not too late as a claim can be brought by the
executors/administrators of your partner’s/relative’s estate. Compensation
can be claimed for your relative’s pain and suffering and any financial
losses which they suffered as a result of their illness, so it is still worth
seeking legal advice. There may also be a claim by the surviving
spouse/partner for bereavement damages and their reliance on the
deceased person’s income and contribution to household maintenance.
6-My partner has mesothelioma and is extremely ill and may die soon.
Can we delay seeing a solicitor?
Although it is very important to obtain an explicit witness statement
from the person who is suffering from mesothelioma, that is not always
possible if the sufferer is extremely ill when the link with asbestos is first
made. If that is the case, then the presence of a solicitor may be
unwelcome. However, any handwritten notes or diary entries, which may
be relevant, ought to be preserved, together with any work records (for
example - deed of apprenticeship/indentures etc). The family can often
give important evidence even though it is “indirect”. However, there is no
real substitute for the direct evidence given by the mesothelioma sufferer,
him/herself. Their recollection of events is likely to be the most accurate. It
is also worth making a note of the names and addresses of any former
work colleagues who may be able to give evidence about the sufferer’s
exposure to asbestos.
7-I have been told that I most likely have mesothelioma and I have
exposed myself to asbestos in the past. Should I see a solicitor even though
the diagnosis is not 100% certain?
Mesothelioma is a notoriously difficult illness to diagnose accurately and
even though there may be a clinical diagnosis, the doctors cannot always
be 100% certain. Civil claims for damages (compensation) only have to be
proved on the balance of probabilities (i.e. more likely than not) and
therefore if the medical evidence states that it is likely that you are
suffering from mesothelioma, then you should see a solicitor who may still
be able to investigate a claim. Remember that the limitation period starts
at the time when someone has a reasonable suspicion that they are
suffering from an asbestos related illness, not from the time when a 100%
diagnosis is made and so, from that point of view, it is wise to take legal
advice promptly and the solicitor should then advise on the appropriate
steps to be taken.
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