The UK  Government has announced in the Queen’s Speech its intention to bring forward legislation to create the long awaited Employers Liability Insurance Bureau for victims of mesothelioma who cannot trace their employer or employer’s insurance company.

CAA welcome the scheme which will pay compensation in cases where employers’ liability insurance cannot be traced.The new scheme means mesothelioma victims who were unable to claim compensation because they could not trace a liable employer or employer’s liability insurer, will get a share of approximately £300 million in payments in the first ten years.

However, we do still  have reservations concerning the scheme as it will only apply to those who suffer from mesothelioma and will exclude those who suffer from other asbestos related conditions who are also unable to trace a relevant insurer.  We asked senior solicitor Laura Blane from Thompsons, Scotland for her perspective on the scheme:

Laura_BlaneLaura Blane, Solicitor & Partner, Thompsons, Scotland.

The Mesothelioma Bill was announced in the Queen’s Speech on 8th May 2013.  The Bill seeks to establish a scheme of last resort for the victims of asbestos related disease whose employers are no longer in existence and for whom no employers’ liability insurance has been traced.

Employers’ liability insurance was not compulsory until the 1st January 1972 and many small to medium sized firms did not take out the insurance cover prior to that date.  Indeed, many did not take out insurance cover even once it was compulsory.  Moreover, insurance companies were not required to keep records of their policies and where they did then the record keeping has been inconsistent and often inaccurate.

Given the nature of asbestos related diseases which take decades to come to light, the majority of victims are still looking for recompense against companies in relation to employment before 1972 and before any acceptable system of record keeping came in to play.  Significant numbers of people with asbestos related disease are told each year that their claim cannot be pursued because of the absence of insurance or that their claim will be devalued because insurance cannot be traced for one or more of their employers.

The proposed scheme seeks to address some of these difficulties.  The problem with the scheme is, however, that it is very restricted in those who will be able to apply and it is still very unclear as to what lengths individuals will have to go to to exhaust their remedies through the Courts before being eligible to make claims to the scheme.

The scheme will be restricted to those with Mesothelioma only.  Not only that, but it will be restricted to those who have been diagnosed with Mesothelioma after 25th July 2012.  This will automatically exclude hundreds of people who have been diagnosed prior to that date and in particular those who were diagnosed between the Government announcing the scheme in February 2010 and the apparent arbitrary date of 25th July 2012.

The scheme will also only pay approximately 70% of the damages which a person might have received had there been insurance in place.  The 70% figure does not take into account the value of Mesothelioma claims in Scotland which tends on the whole to be higher than that in England, particularly because family members are entitled to claim.  Rather than family members having individual claims following the death of an individual from Mesothelioma as is the case in the civil Court system, family members will have to share a single “pot” of compensation payable under the scheme in terms of English values.

The scheme only covers employers’ liability insurance. This means that it will exclude all those who have been exposed to asbestos on what is known as a secondary basis.  For example, this will include the wives of men who have been exposed to asbestos and brought the dust home on their overalls for their wives to wash.

Any benefits which have been received by an individual before applying to the scheme will fall to be deducted from any payments made under the scheme, even though the scheme is not paying out at 100%.

It is far from clear as to what extent an individual will have to explore the possibility of a civil claim through the Courts before being considered eligible for the scheme.

It is therefore with a degree of caution that I welcome this development.  Anything which aims to provide compensation to victims who would not possibly have had any payment without it must be considered to be a good thing, however, I do have my concerns that hundreds of deserving victims will be excluded from a scheme which at first promised so much.  The devil will be in the detail and I trust that the Westminster Government will listen to the views of asbestos lobby groups and victims and ensure that this scheme can do the best possible for the victims and their families.

 

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