Essential elements for a successful claim

Duty of care

As with all personal injury claims, it is necessary to show that a duty of care was owed to you, the injured person, by the party who exposed you to asbestos.

If you have been exposed to asbestos as an employee in the course of your employment by an employer, there is usually no difficulty in showing that you were owed a duty of care in those circumstances.

Sometimes there is exposure to members of employees’ families, for example as a result of dust carried home on clothing and tools. Or you may have lived near to a factory manufacturing asbestos products. It is possible to show a duty of care in many such cases, but not always.

Breach of duty of care

It is usually possible to show that there was a breach of duty (negligence) in allowing the exposure to occur and doing little or nothing to prevent this.

Often particular duties will be specified in Acts of Parliament such as the Factories Act and failure to comply with these will show breaches of statutory duties.

Everything that you can tell us about the circumstances in which you were exposed to asbestos will help to establish the nature of these breaches of duty.

Damage

This is the physical injury that you have suffered. You will need to prove that you suffer from an asbestos disease and a medical report will be obtained to confirm this. You may also wish to claim for other losses and expenses resulting from the asbestos disease such as loss of earnings. These items can be included as other “heads of damage”.

Causation

You must prove that your asbestos disease has at least probably been caused by the party being sued (the defendant). Usually there is no difficulty about this but problems may arise where there has been significant exposure to asbestos elsewhere e.g. another employer who cannot be sued. You must satisfy the Court that the defendant has made a ‘ material contribution’ to your asbestos disease.

If you wish to claim financial loss, you will need to prove that the losses have probably resulted from the asbestos disease. For example, if you are unable to work because of another unrelated medical condition you will not be able to claim loss of earnings as a result of the asbestos disease.

Limitation

There is a statutory limitation period of 3 years in which court action should be commenced. Usually, in asbestos disease cases, the period will run from the date on which you knew you had an asbestos disease. The court has discretionary power to override this 3 year limitation period so it is worth discussing a possible claim even if you think you may be outside the period.

In a fatal case, the 3 year limit starts at the date of death or the date when the person bringing the claim on behalf of the deceased first knew of the asbestos disease. It is still very important to see a solicitor as soon after the event as possible whilst memories are fresh.

We will give you advice, if we think that limitation is likely to present a problem, and we will take action immediately if necessary, to protect your position as far as possible.

What we will do

In some cases, we cannot say initially whether or not there will be a successful claim but we will indicate if your case warrants further investigation. Our considerable experience of asbestos claims means that we are familiar with most of the thermal insulation companies, asbestos manufacturers, shipping lines and other employers who have been successfully sued in the past.

No win no fee agreements

Most cases are now funded by “no win no fee” agreements. If we think your case has reasonable chance of success, we will act for you under a “No win no fee” agreement. This means we are able to deal with most cases with no financial risk to clients.

The way in which we are able to do this is fairly complex. It does give our client financial protection and peace of mind.

Preliminary Investigations

Initially, we will concentrate on gathering evidence to prove the essential elements mentioned above.

• We will see you to obtain a detailed statement. This must include as much as you are able to remember about the circumstances in which you were exposed to asbestos. Often this will mean trying to recall events that happened many years ago. We understand this is difficult but the success of your claim will largely depend on what you can tell us. The statement will also include details of how you found out about your asbestos disease and the effect this has on you.
• If you are suing an employer, we will write to the Inland Revenue to obtain proof of your employment history. Any documents that you have to prove this will also help.
• We will contact any witnesses.
• We will obtain a medical report.
• If the prospective defendant is a limited company, then unless it is already well known to us we will carry out a company search at the Companies Registry and/or in our own extensive records.

What happens next?

In a simple case, we may be able to advise you whether to pursue your claim by court proceedings. In a complex case, further work may be necessary before this can be done.

As well as investigating whether you have a claim for an asbestos disease, we will also consider the likely amount of damages that a court would award (quantum).

In many cases we will not seriously consider quantum of damages until the preliminary medical issues have been investigated, but we will always be able to give a broad outline advice giving you the “heads of damage” at the beginning of the case.

The investigation into the amount of compensation may take some time and involve expert accountants’ evidence in complicated cases.

Once a decision has been taken by you to issue proceedings, certain steps must be taken in order to comply with court rules. The rules also place certain duties on you as well as on us, especially regarding documents and statements of truth. The main steps and duties are set out at the end of this guide. Please take time to read these carefully.

Commencing Court Action

In a simple case, we aim to issue proceedings as soon as possible after the 3 month period allowed to the defendants to carry out investigations (sooner in a mesothelioma case). In a complex case, it may take 12 to 18 months before the court action can be started.

We will consider whether the case should be issued in the High Court or in the County Court. Whatever the venue we will, with the help of a barrister and the medical experts, draw up the following documents:

• particulars of claim - this will set out the facts upon which your claim is based and the allegations of negligence and breaches of duty which we intend to pursue in court on your behalf.
• schedule of damages - this will set out the calculable money losses which have been incurred to date as a result of the asbestos disease. It will also include a broad outline of any likely future losses.
• a medical report on your present condition and prognosis.

It is usual for both the schedule of damages and the medical report to be updated as your case proceeds towards trial.

Interim payments

Once a court action has begun, and in rare circumstances before then, it may be possible to apply for an interim payment. This is an early payment of part of the damages that the defendants will be liable to pay. It may be substantial in cases where the final damages are likely to be high.

It will only be appropriate in cases which are likely to succeed, so that if there is a proper defence to your claim it will probably not be possible to apply for an interim payment.

Timetable of events

Once proceedings have been served, a timetable of events begins in order to progress your case to trial. The timetable varies slightly depending on whether your case is allocated to the “fast track” or the “multi track” by the court.

There is usually at least one meeting with your barrister and solicitor before the trial intended to discuss various aspects of the case and the best way to proceed.

The case may either settle because the defendants make an acceptable offer of compensation or it may proceed to trial. The trial length varies depending on the complexity of the case. Some cases are split so that one hearing deals with liability and another deals with the amount of damages.

Before court action

What we must do

• Get a medical report.
• Collect evidence about any financial losses and/or expenses.
• Take a full statement from you.
• Obtain proof of your employment(in a claim against employers).
• Contact witnesses.
• Notify your claim to the other side and allow them 3 months to investigate (often less in mesothelioma cases).
• Advise you of any offer in settlement.
• Prepare the court documents to issue court proceedings if no acceptable offer is made.

What you must do

• Sign forms giving access to your medical records.
• Keep all receipts, P60s, accounts,etc. Sign consent for information about earnings and pensions.
• Check this carefully and tell us if it is not correct, sign the statement of truth (only) if it is correct.
• Keep any documents proving your employment history. Sign forms of consent for the Inland Revenue and/or DSS.
• Provide names and addresses to us.
• Inform us of any changes in your medical condition or financial circumstances which might affect the value of your claim.
• Give us your instructions reasonably promptly.
• Read the claim form and particulars of claim carefully to check the facts (we will check the legal breaches of statute, etc.)

During court action

What we must do

• Advise you on any specific allegations or requests for further information.
• Prepare a formal list of all documents in your (or our) possession relevant to your claim including the sort of documents mentioned above.
• Advise you on the contents of any expert’s report.
• Advise you on any offer to settle or payment into court.
• Inform you of the trial date and place.

What you must do

• Let us have your instructions promptly.
• Check the list and sign it (only ) if it is true. Send us all relevant documents which you still have.
• Inform us of any change in your medical condition or other matter relevant to the content of the report
• Inform us of any change in your circumstances which might affect the value of your claim (medical or financial). Give us your instructions reasonably promptly.
• Confirm that you will be able to attend.

Dissolved companies

As an asbestos disease is usually not apparent until many years after the exposure to asbestos, it is often the case that a potential defendant company has been dissolved. This means that the company no longer exists and cannot be sued.

If the relevant insurers of the company can be traced, it is possible to make an application to the Court to restore the company so that it can be sued. We have been successful in doing this for many companies. Unfortunately, if those insurers cannot be traced, it will not be possible to bring any proceedings against that company to recover damages for your asbestos disease.

Pneumoconiosis etc. ( Workers’ Compensation) Act 1979

The Department for Work and Pensions administers a scheme that pays fixed amounts of compensation in cases where the relevant employer has ceased to trade. It is a requirement that an application for industrial injuries disablement benefit is or has been made before payment can be made under this Act.

Payments are made for diffuse pleural thickening, asbestosis, lung cancer accompanied by asbestosis or diffuse pleural thickening and mesothelioma.

The amounts are determined by reference to fixed scales according to the 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. If you are paid another benefit related to the income you receive such as Income Support, the amount you or your partner get may be affected if you receive a payment under this Act. Most other benefits you get will not be affected.

Industrial Injuries Disablement Benefit

Most sufferers of asbestos disease caused by employment after 4 July 1948 will qualify for this benefit. Application is made through the Benefits Agency and a medical examination by their Medical Board is required.

It will not be awarded for diffuse pleural thickening if the Medical Board assesses the level of disability at less than 14%. Such an assessment does not necessarily mean that you cannot issue proceedings for an asbestos disease, or that you will not qualify for a payment under the 1979 Act. If you are paid another benefit related to the income you receive such as Income Support, the amount you or your partner get may be affected if you receive industrial injuries disablement benefit. National Insurance benefits you get, e.g. incapacity benefit, will not be affected.

War Disablement Pension

If you have an asbestos disease caused by military service, whether in peace or wartime, you should claim a war disablement pension instead of industrial injuries disablement benefit. You can also claim a war pension for an asbestos disease if you were a civilian in HM Armed Forces.

Who we are

We are a large London firm with extensive experience and resources. With a realistic approach, we take great care to put our clients first and to leave “no stone unturned” in investigating claims for asbestos diseases. We have experience in working with many leading medico-legal experts and are in constant touch with organisations such as OEDA, which we strongly support. Members of the team regularly publish books and articles and lecture on the subject.

FFW's Asbestos Team comprises:-

Rodney Nelson-Jones, Partner

Email: rodney.nelson-jones@ffw.com

Rodney is head of the group. He has specialised in asbestos disease claims for 25 years. A leading legal directory commented that Rodney has "achieved a fantastic amount for people with occupational diseases". In 2002, he received the Association of Personal Injury Lawyers' annual Award for Outstanding Achievement.

Peter Williams, Partner

Email: peter.williams@ffw.com

Peter has specialised in asbestos-related disease claims since he joined the team in 1993. He also advises the department on conditional fee (no win, no fee) agreements and costs. He is a member of the Law Society Personal Injury Panel.

Andrew Morgan, Solicitor

Email: andrew.morgan@ffw.com

Andrew qualified as a solicitor in January 1993 and joined FFW in 1995. He specialises in cases involving industrial diseases including asbestos diseases. He is Coordinator of the Occupational Health SIG of the Association of Personal Injury Lawyers. He advises the Parliamentary Sub-Committee on Asbestos. Andrew is a member of the Editorial Board of the Personal and Medical Injuries Law Letter.

Michael Osborne, Solicitor

Email: michael.osborne@ffw.com

Michael has specialised in personal injury claims since he qualified in 1993. He has acted solely on behalf of sufferers of asbestos diseases and their families since joining the firm in March 1996. Michael is author of "Asbestos Disease Claims: A Guide for Doctors and Health Care Professionals". He speaks French and Spanish.

Harminder Bains, Legal Executive

Email: harminder.bains@ffw.com

Harminder joined the group in 1998 and has over 15 years’ experience in conducting claimant personal injury actions. She specialises in asbestos disease claims. She is a member of the Association of Personal Injury Lawyers. Her cases have featured in the law reports.

For further information, or to discuss a claim, please contact:

Field Fisher Waterhouse LLP
35 Vine Street
London EC3N 2AA

Tel: +44 (0)207 861 4000
Fax: +44 (0)207 488 0084

This guide is intended to give you a broad outline about asbestos disease cases. It is not a substitute for specific advice about your case. Please do not hesitate to ask the person dealing with your case for advice on any aspect of your claim and keep this note for further reference. © Copyright Field Fisher Waterhouse LLP 2004. All rights reserved.