Will the new legislation on mesothelioma fit the bill?
The mesothelioma bill is expected to become law
in July this year, after its journey through both the House of Lords and the House of Commons. With the hazardous material asbestos causing health problems such as mesothelioma, pleural plaques and asbestosis, will the bill, fit the bill?
The mesothelioma bill was created to fill a 'gap in justice' for victims of diffuse mesothelioma
, an aggressive and often fatal cancer, almost exclusively caused by inhaling asbestos
Bills becoming Law
The bill was first discussed in the House of Lords, and last week, the mesothelioma bill made its way through its third reading
in the House of Commons.
A bill can begin in either house and undergoes the following stages in each house:
- First reading – The name of the bill is announced
- Second reading – The first debate about the purpose of the bill
- Committee stage – There is a debate about the bill itself, such as how it is written
- Report stage – Amendments to the bill are discussed
- Third reading – Final amendments are made to ensure the bill fulfils the purpose it sets out to
- When both houses have approved each other's amendments, it will go to Royal Assent where the Queen agrees to make the bill into a law
What the Bill sets out to do
The bill offers a lump sum payment for victims of mesothelioma
who are unable to trace the employer who caused the disease or their insurers. A victim or their dependents can make an application to the government run compensation fund
The fund will pay out 75% of the average settlement of compensation
claims relating to mesothelioma. Figures suggest this will mean victims receiving round £115,000.
Does it do this?
The bill definitely improves the position for victims, but when you look at the provision, you can spot some gaps.
You will only be able to make a claim to the fund if you were diagnosed after 25th July 2012
. This cut-off has been widely described as 'arbitrary' by the campaign group Association of Personal Injury Lawyers (APIL)
, as well as e-petitions, law firms, trade unions and bloggers.
On top of this, as a mesothelioma bill, it does not consider those with other asbestos related diseases, such as asbestosis and pleural plaques. The compensation percentage has also taken some heavy criticism
. President of APIL, Matthew Stockwell commented "…now they are to be penalised by losing a quarter of what the courts determine is fair redress. This is not the justice these people deserve."
The Legal Perspective
Emma Costin, Head of Industrial Disease at Simpson Millar LLP, a leading trade union claimant's law firm comments:
"For many years, those of us on the claimant side have campaigned for a fund of last resort
, similar to the MIB, to pay compensation to victims of accident or disease where no insurer or solvent defendant can be traced. "
"Employers Liability Insurance has been compulsory in England and Wales since 1972, yet in excess of 50% of cases where a search is made an insurer cannot be traced. This is a particular problem with “long tail” diseases
such as mesothelioma and asbestos lung cancer, asbestosis or diffuse pleural thickening. This is because symptoms, typically, first develop a long time after exposure, in that time the employer may well have ceased trading and/or perhaps more surprisingly, all records of the insurer records have been long since 'lost'."
What the new Bill will do, is enable a proportion of claimants (those diagnosed with mesothelioma after July 2012) who face this situation to recover a proportion (75%) of the fair compensation that is properly due
The Bill falls short of providing an equivalent to the MIB for victims of accident or disease in a number of ways
- The cut-off date of 25.7.12 is arbitrary
- The Bill offers nothing to victims of asbestos lung cancer, asbestosis or diffuse pleural thickening or other accident or disease where a solvent Defendant or Insurer cannot be traced
- The victims who qualify for payment under the Bill will only recover 75% of their “full” compensation
It is difficult to justify such a high a deduction, except that this will inevitably save insurer's shareholders' money
at the expense of men and women dying from mesothelioma and indeed their families.
Whilst clearly the Bill is a step in the right direction, we maintain that an opportunity to provide proper justice to all victims
of asbestos, as well as victims of other diseases and 'no fault' accidents where an insurer cannot be traced, has been lost and yet again it is the hard working claimant who must subsidise the insurance industry
We are suspicious of the high proportion of instances where all details of an insurer are lost, fearing that the 25% shortfall in compensation
will apply where an insurance policy cannot be traced. This will be a strong disincentive to the insurance industry to improve their record keeping.
We continue to campaign for the rights of victims
and fully support the efforts of APIL in this regard.