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Asbestos Disease Compensation: Everything you need to know

Posted on April 18th 2018

In March, James Cameron, a Solicitor and Associate Director within our Industrial Disease department, spoke at length about asbestos compensation claims in a radio interview.

The interview provided a good introduction to asbestos compensation claims and answered many of the questions people often have relating to legal cases.

As such, we have transcribed the interview below, in the hope that it will be a helpful source of information for people affected by asbestos-related disease. The show was hosted by Gavin Matthews and aired on Chester-based Dee 106.3. The transcript has been edited for clarity.

You can use the links below to jump ahead to specific sections of the interview:

GAVIN: It’s our legal hour with Oliver & Co. I’m very pleased to say our guest this month is James Cameron. You’re the asbestos specialist at Oliver & Co – tell us about your role.

JAMES: I qualified as a solicitor in 2006, working for Oliver & Co since September of that year. I’ve specialised in asbestos disease cases pretty much ever since that time. I’ve been working on these cases now for eleven years. Over that period I’ve settled hundreds of cases for sufferers and their families, people who have been affected by these terrible conditions, which cause debilitating, life-changing respiratory symptoms. It’s pretty serious stuff really, but it’s something that I’ve really got stuck into and I’ve enjoyed helping people.

GAVIN: Do you think we’re at the point now where cases have peaked? Because asbestos, of course, is not being used anymore, and a lot of it that was used previously in the sixties and seventies has been removed.

JAMES: To be honest, this changes every year. Every year there is a new set of data which says that cases won’t peak until 2020, and then the next year they’ll say 2023. The main thing that changes the peak date is that people are living longer, so the chance of people developing these conditions has increased.

It’s quite rare now to see claims for certain asbestos related conditions, the ones that can only really develop after really heavy exposure, because the industries that would have resulted in people developing those complaints, such as asbestosis or asbestos related lung cancer, are pretty much defunct these days. Mesothelioma is still unfortunately very prevalent, as is pleural-thickening.

GAVIN: People my age, and certainly older, will remember the bike sheds in schools. Almost certainly they had an asbestos roof – that sort of corrugated stuff. Goodness knows what else was in the walls and ceilings of some of these buildings.

JAMES: It will have been corrugated asbestos sheets.

GAVIN: Do we need to worry about that?

JAMES: I think it’s a worry if it has been knocked about when you’re nearby, and no safety precautions have been taken. Certainly, it’s only dangerous when it becomes airborne. If you’re close to an area where asbestos is present, if it has not been knocked about or manipulated, then it is highly unlikely that you will be in any danger of developing a complaint.

GAVIN: When it has been knocked about the small fibres become airborne. Breathing in these fibres is what causes the problem, isn’t it?

JAMES: That’s right, the fibres become lodged in the lung. The problem with these conditions is there’s no way of knowing after exposure whether you’re going to be misfortunate enough to develop an asbestos related condition in later life. The conditions usually affect people between 10 and 50 years after the exposure has occurred, so it’s very difficult to anticipate who is going to develop it and who is not.

GAVIN: I’m sure I remember hearing that just one fibre can be enough to trigger a condition?

JAMES: That’s right, for mesothelioma – the asbestos related cancer that can only be caused by asbestos exposure – it only takes one fibre to cause that condition. There’s about 2000 people in the UK that are sadly diagnosed with that condition every year, and we represent some of those people and their families.

GAVIN: That’s a lot, that’s 6 people a day – 6 people today will have found out that they are suffering from mesothelioma, for which there is no cure.

JAMES: It’s horrendous, there’s no known cure. There have been a lot of trials going on recently in relation to immunotherapy drugs. I’ve actually represented somebody who received that immunotherapy treatment on a private paying basis. Whilst that assisted in shrinking his tumour, he still has the condition. There is no known cure unfortunately.

GAVIN: So there’s no way of getting yourself checked out to see whether you might develop an asbestos-related illness in the future?

JAMES: Not at this stage. I think that they’re looking at ways of trying to detect it early. Currently, the problem with these conditions is that, once the fibres have become lodged in your lung, by the time it’s caught, the tumour is far too developed and there is no way of curing the condition.

GAVIN: Ok, well if you do find yourself in this awful predicament, there is recourse to the law for compensation and we’ll be speaking about that with James Cameron from Oliver & Co in a few minutes time.

[SONG]

It’s the legal hour with James Cameron from Oliver & Co and we’re talking about asbestos, and the fact that you can get some very nasty conditions if, unfortunately, you are exposed to airborne asbestos. You sort of mentioned before that song, James, that it can be anything up to fifty years between exposure and the realisation of symptoms.

JAMES: That’s right, I think the longest period would be around 50-60 years, but people can develop it after short periods. I’ve represented people in the past who have developed conditions only 10 years following exposure. Any exposure that occurs prior to a 10 year period, prior to the diagnosis, would not be seen to be contributory to the condition itself. The medical experts always say that the window is between 10 and 50 to 60 years.

GAVIN: Ok, well, one problem comes immediately to mind, with regards to that. If it’s say, thirty years since you worked somewhere, where you were exposed to asbestos, there’s every chance that the business may not be trading anymore. How would you pursue a compensation claim in that case?

JAMES: It’s a worry that we’re used to hearing really, but it’s a misconception that just because the company is no longer trading there’s no form of recourse. You can claim against that company’s insurers. If you’re able to trace the insurance policy that was in place when that person was being exposed to asbestos, then you claim against that insurance policy. A lot of our work at Oliver & Co involved tracing the insurers that were on record at the time of exposure.

GAVIN: So that’s something you would do then? You would trace down the insurance policy for you know, ‘JOE BLOGGS LIMITED’ in 1976?

JAMES: That’s right, my team and I would look into that. We would delve into the insurance records and we’d carry out insurance searches through an ELTO search – employer’s liability tracing office search. We’ve also got a database of companies that we’ve pursued in the past. This details all of their insurers for relative periods. So it can be done, even if a company no longer trades.

GAVIN: How would you pinpoint the cause of mesothelioma if a person who is suffering may have worked in half a dozen places where they could have been exposed to asbestos?

JAMES: Mesothelioma is known as an ‘indivisible’ condition. There is no way of knowing which fibre, or which particular period of exposure, caused the condition to develop. In those circumstances the courts have decided that if you prove blame against one party that exposed you to asbestos, it doesn’t matter whether you were exposed with other companies that are now defunct.  The traced company or their insurers would be responsible for paying 100% of the compensation to the sufferer and their family. So there’s no worries there, there’s no need to pursue multiple defendants. If you prove your claim against one party, they pay for the whole thing and 100% of the compensation.

GAVIN: Ok James, we will come back in a few minutes and talk about the information you need to press for a successful claim.

[SONG]

So I guess it’s time to talk about the information you need to gather, James, to be able to run a successful claim for a client.

JAMES: What is absolutely key, is to take a very detailed statement from the sufferer. Making sure that you document:

  • Where they were working.
  • Names of colleagues.
  • Where the asbestos was present.
  • How the asbestos was removed.
  • How dusty the conditions where they were working were.

That’s absolutely vital. In many cases we will go out to meet our clients, face-to-face, to take that detail down from them. We find it often helps to take this information down over a cup of tea really, in an informal environment.

The client is going through enough as it is. We go out to see them, obtain the statement, document how they were exposed in as much detail as possible and obtain their work history from the Inland Revenue. The work history is key and will document all of the employers that they have worked for, dating back as far as 1961. My input comes in next when I’m looking at medical records. Whilst I’m not medically qualified, I need to have a degree of medical knowledge to determine whether my clients have a case and to assess whether there are reasonable prospects of their claim succeeded. Overall, I’d say the statement is the most important aspect because it tells the person’s story.

GAVIN: Once you have all that information, what happens next? When you contact the insurance company of the business that you think exposed your client to asbestos, they’re not going to say, “OK how much do we owe you,” are they?

JAMES: Sometimes they will come back to us quite quickly and acknowledge that they exposed somebody negligently to harmful amounts of asbestos dust.

GAVIN: Oh, so that can happen?

JAMES: That can happen quite quickly. After that, we need to prove that the exposure has actually caused the condition, so we need to obtain a medical report. So the length of time these cases take varies really, depending on how the other side behaves. Sometimes you can turn around these cases for clients within two to three months of receiving instructions. Other times it can take longer. For example, if there’s a fight on your hands, if they’re raising issues about somebody’s exposure, or they deny that it was asbestos being used, then the case can be elongated.

GAVIN: Once you’ve been diagnosed with mesothelioma, sadly it’s not very long before you start deteriorating, so is time really of the essence?

JAMES: Time is of the essence. Particularly in cases where people don’t have family – they don’t have a wife or a husband. In those cases one element of the value of the claim is what’s called the ‘lost years’ claim. It’s based on the value of the income claim for the client. You look at the income and you then multiply it by the number of years that the client is going to be robbed by (usually detailed in the medical report). If the claim isn’t settled within that person’s lifetime, then that element disappears with them. It’s a very important element that we try to preserve in these cases.

GAVIN: Would that not make insurance companies drag their feet then?

JAMES: That does happen from time to time. It’s our job to make sure that they don’t do that. If we get the feeling that they’re delaying, or using stalling tactics, then we can issue court proceedings in a specialist fast-track High Court in London. There are judges there that make sure that these cases are dealt with very quickly. It will proceed to a hearing at court that the client doesn’t need to attend. A barrister or I will represent the client and make representations about the exposure. Then it is up to the defendant to come up with a defence to the claim. If they don’t do that, you win the claim at that juncture. An interim payment of asbestos compensation is then payable to the client within 14 days of that hearing. So if they start to go down that route and they sometimes do, we adopt those tactics to help combat that.

GAVIN: So that’s quicker than I thought – so, it doesn’t necessarily mean that it’s going to take years and years?

JAMES: Absolutely not. The problem is that the clients don’t have years and years. The courts understand that, the government understands that. There are governmental schemes in place to give people some of their money early, so we can apply for those. We assist people in applying for state benefits and lump sum payments as well, through these governmental schemes, to give them a bit of money upfront to help with their care needs whilst they’re suffering.  Cases can be turned around within a very short time frame. I’ve settled many cases within two to three months of receiving instructions.

GAVIN: Oh, that quick? That is a surprise!

JAMES: People often worry that they’ve got enough on their plate suffering with the condition without a case being very long-winded, dragging on and on through the court process. I have to reassure people that it can be done quite quickly if you have a strong case and the other side aren’t taking issue with the exposure. It is quite rare that you’ll have insurers raising issues on mesothelioma cases, for example. It does happen from time to time. If that does arise, we then take the step of involving the court very quickly.

[SONG]

GAVIN: We’re talking about asbestos, and the awful conditions that people could contract if they’ve had any exposure to airborne asbestos. We’ve started talking about what a compensation claim would comprise, but it’s more than just getting money for the years that you’ve been robbed of, isn’t it?

JAMES: That’s right, it’s split up into various elements. There will be a claim for the person’s condition – the pain and suffering they have to endure because of the condition. There will be a claim for the care and assistance provided to them by family members, or friends. There will also be a claim for aids and equipment, potentially, if they need adaptations to their house.

These conditions can have such a devastating effect on people, that it is quite often the case that they would need house adaptations. Travelling expenses and miscellaneous expenses would also need to be claimed. In circumstances where somebody has sadly passed away there would be a bereavement award, and there would also be what’s called a dependency claim pursued by the surviving widow. That would compensate the widow for losing out on all the services that their husband provided. For example, DIY, gardening, or whatever else it may have been. It’s all very bleak really but it’s all things that you need to include within the claim to maximise the level of compensation for the client.

GAVIN: Where on earth would a judge begin in calculating an amount that is due? How do you put a pound sign on that?

JAMES: We would put it together in the form of a schedule, we obviously plead that as high as possible. A judge would then consult a set of guidelines that are used by the court to decipher the value of the claim for the condition. So they would look at the person’s length and period of suffering, the extent of their symptoms, whether they underwent any treatment etc. They piece it all together and attribute a value that they believe is reasonable, taking their experience into account, and taking those guidelines into account.

GAVIN: Ok, once you agree, or you recommend to your client that you agree with the amount on offer, is it too late to go back a little bit later and say, ‘you know, we’ve incurred more costs than we thought, we’ve lived a little bit longer and therefore we have more care costs?’

JAMES: There are different ways of settling cases. Some cases are settled on a provisional damages basis, so if somebody has one of the less serious conditions – pleural thickening or pleural plaques – a claim could be settled on a provisional damages basis, which would leave the door open to claim further compensation. However, I’ve had a recent case which has settled on a full and final basis, so the door was closed to being able to claim further compensation for most elements, apart from one. That element is to claim for future, private immunotherapy treatment, if he requires that. In that case , my client was sadly suffering from mesothelioma. It was recommended that he undergo this private immunotherapy treatment, but at considerable cost to himself. Thankfully, we were able to recover those costs back from the defendant insurers, and we’ve left the door open for him to return and claim further funds if that treatment is deemed to still be appropriate for him. He’s undergoing radiotherapy at the moment, so he’s been through the mill to say the least. That was a particularly satisfying result for us, because I could see the torment that this was causing, not only mentally and physically, but financially. He was having to pay for this treatment out of his own pocket, as well. It was a big pressure on him and his family – his daughter assisted him with paying for the treatment. It gave him a degree of peace of mind when we settled the case, because he knows now that he is going to be able to continue to receive that treatment, because of the work we put in on that case.

GAVIN: Amazing peace of mind that you’ve achieved for that client there.

JAMES: It is, it means a lot. It is quite rewarding, but at the same time it’s frustrating because it doesn’t matter how hard I work, nothing is going to correct what has happened to my client. You get very close to the clients that you represent, you’re speaking to them every day. All you can do is try and secure a sense of justice and try and recover as much money as possible for them. Certainly, in that case, it went a little bit further because you feel as though you have recovered this money to give them best possible opportunity of living a longer life.

GAVIN: Ok James – just a couple more questions to go before we finish, is that ok? We’ll do that after this song.

[SONG]

GAVIN: Just a couple more things to mention on the subject of asbestos and the illnesses that it can give you. We’ve spoken a lot about people who have worked in industries and so on, where they’ve contracted – for example- mesothelioma. But you don’t just represent people who have contracted it through work, do you?

JAMES: No, unfortunately not, these conditions can affect many other people. I had a terrible case, a few years back now, where I represented a mother who had lost her son due to mesothelioma. He was exposed to asbestos when he was a baby, at about 18 months old, when his father was working with asbestos on a construction site for Tarmac. I remember it well, it was a horrendous case, because he passed away at the tender age of 22. In that case the other side actually fought the claim because they were disputing that his dad worked for the company. It was particularly difficult, emotions running very high. We were speaking to his mum every day, we wanted to get a degree of justice for him. Certainly, a very difficult case to run because on his dad’s work history, there was no mention of this company employing him. He was paid on a cheque basis really. Whilst he wasn’t self-employed, he didn’t seem to be on the books with HMRC. We managed to track down his dad, who actually left the family home when his son was 18 months old and he provided a helpful statement, talking about how he was paid regularly. We also spoke to people who knew the family at the time, and how his dad would come back covered in asbestos – white asbestos dust – after being near to others who were cutting up this material and removing it from houses.

GAVIN: It’s incredible to hear that.

JAMES: That’s the most horrible thing, it doesn’t discriminate between employees and a child. Anybody can develop these conditions.

GAVIN: Tragic, tragic. There are treatments available – not everybody chooses to take them though.

JAMES: That’s right. What we find is that sometimes the treatments can have their own side effects. Some people decide that if they’ve got a limited time left they don’t want to be adversely effected by the symptoms that are going to be caused by chemotherapy or radical surgery so they may not go down that route. They may decide to refrain from undergoing any recommended treatment and try and enjoy the time that they have left. It’s always a very difficult decision to reach.

GAVIN: I suppose it’s a very personal decision – you don’t need a lawyer’s advice on that.

JAMES: Not at all, not at all.

GAVIN: It’s down to the person, how they feel. I am out of time, but I have a whole load of trustpilot reviews of what you’ve done for people. There are some quite moving compliments to you here. All of them five stars, I notice, James!

JAMES: That’s right, and it does make you feel proud, when you receive those reviews. However, you’re often left feeling a bit frustrated that they’re still having to go through what they’re going through. Anybody that is interested in taking a look at the reviews just check out our website www.asbestosjustice.co.uk You’ll see on there that we’ve been working very closely with Macmillan over the years, we’ve actually raised over £32,000 for Macmillan out of the work that we do, because we value the service that they provide to our clients and their families.

GAVIN: And if there’s anybody that sadly needs to seek your services for the reasons we’ve been discussing, they can contact you Monday to Friday at Oliver & Co?

JAMES: They can do, yes. They can call me on my direct dial number: 01244 354663. All of these cases are dealt with on a no win, no fee basis, and I’d be happy to have a chat.

GAVIN: Thank you, James, nice to meet you. James Cameron, from Oliver & Co, on our legal hour.

[END]

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