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Dec 7, 2016

Asbestosis Claims: Provisional Award For Pleural Thickening Leaves The Door Open

 
 
 

“Will my asbestosis claim be successful?” is a question often asked by a victim or anxious family members when exposure to the fibre dust, decades earlier, is suspected of being responsible for causing pleural thickening.

Pleural thickening is a fibrosis and scarring of the outer lining of the lung. While considered non-malignant, the condition is almost always an indication of exposure to asbestos and is present in patients with asbestos-related diseases.

A claimant who can clearly show that asbestos exposure was responsible for a confirmed diagnosis of pleural thickening can be entitled to asbestos compensation for the “proportion of respiratory disability caused”.

In one recent case, it was shown that pleural thickening was responsible for a third (15 per cent) of a claimant’s respiratory disability from of a total of 60 per cent. The victim then needed to decide if they wished to settle the case on the basis of a “provisional award” or on a “full and final” basis. Making the right choice at this stage is crucial to financial safeguarding against a future worsening of the condition.

Departure from the accepted view by the courts

The prospects for a victim suffering with breathing problems caused by pleural thickening have improved in recent years. A claim for this type of asbestos-related condition once posed a difficulty in being accepted in court. Victims were only considered to be at an increased risk of developing an asbestos-related disease as a “direct result of their exposure to asbestos” rather than because of the existence of asbestosis symptoms, themselves.

However, there was a departure from the accepted view when the courts did allow a claim to proceed when it was held that a respiratory disability of between 1 and 3 per cent caused by pleural thickening was “significant”.

An independent medical assessment will usually determine the level of disability and the “lifetime risk” a claimant is likely to face as result of their asbestos exposure. A victim suffering with 20 per cent level of respiratory disability caused by pleural thickening may also face a lifetime risk of 20 per cent of his condition deteriorating – and the possibility of developing the fatal and incurable mesothelioma cancer.

A majority of victims will not suffer a further deterioration in their health. However, in an estimated one in four of pleural thickening cases, the level of disability caused by a worsening of the condition will increase, on and off, in the first ten years after diagnosis. There is also still the potential to develop mesothelioma or asbestos related lung cancer.

In the current pleural thickening case, the victim was identified as being at-risk of the condition deteriorating during the remaining years of his life, which would invariably cause him to suffer increased and severe breathing problems.

Compensation can now be substantial

Asbestosis disease is generally accepted as “potentially progressive” and compensation can now be substantial if there is more than a ten per cent disability, which causes increasing breathing problems. Thus, the option of whether a victim should settle their claim on a full and final basis or accept provisional damages must be carefully considered.

In a standard civil action for “full and final” damages, only one claim is allowed to be entered. Full and final damages includes a payment for the possibility of deterioration in the claimant’s future condition, or the development of an asbestos-related cancer. However, it’s important to be aware that the payment will be significantly less than the award for damages if a more serious or malignant asbestos disease later develops.

In other words, if at the outset a victim accepts full and final damages, there is a chance that they will not obtain a higher amount of compensation, which is possible when receiving “provisional damages”. Here the provisional amount awarded is made only for the claimant’s current condition and leaves the door open for a victim to seek a further award of compensation at a later date.

In the current case, the pleural thickening claimant opted to settle for provisional damages, which does allow him to return to claim further asbestos compensation if his condition was to show a deterioration.

Claimant responsible for making the decision

It is also vital to know that it is the claimant – and not the defendant – who is responsible for making the decision to enter a provisional claim or accept a full and final settlement. The court will then determine whether provisional damages are appropriate and decide the terms by which the victim may return to seek a further award of compensation.

Under the Civil Procedure Rules for a provisional damages order, asbestosis lawyers are required to follow the set guidelines, such as the amount to be paid to the victim and the timeline, within which, an application for further damages must be made.

The concern over the continuing level of asbestos-related cases does not just impact those victims diagnosed with mesothelioma.

The number of pleural thickening victims has been seen to have risen in the last two decades with an annual average of 430 new pleural thickening cases reported in just a ten year period, according to the Health and Safety Executive. The number of diffuse pleural thickening cases newly assessed by the Industrial Injuries Disablement Scheme (IIDB) has also substantially risen, tripling from just 150 cases in 1991 to 425 in 2014.

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