From considering a claim for mesothelioma compensation to definitely going ahead is not always an easy decision to make. In the first days following a confirmed diagnosis of mesothelioma or asbestosis disease, a victim and their family will still be trying to come to terms with the devastating news. In some cases, the victim may only be expected to live another 6 to 12 months.
In the short time left, the urgency to find out how and why the exposure to asbestos occurred will lead victim and family on a determined journey to seek answers by trying to bring former employers to account. The role of the asbestosis lawyer is crucial from day one as each part of the process is bound to look to the family like there’s a mountain to climb.
A key task for an experienced mesothelioma solicitor is to clearly explain to the victim and their family exactly what the law requires as evidence to be presented at court so that they may obtain an early success.
Permission to gain access to medical and employment records
The process will start with the solicitor asking the claimant to sign a form which gives their permission for the solicitor to gain access to the victim’s medical records from their GP and consultant. In addition, it will be necessary to obtain a confirmed mesothelioma diagnosis from an independent, specialist consultant. The next step is for the solicitor to apply to HMRC for the claimant’s full employment records. Together with the victim’s witness statement, the solicitor will use the records to trace the relevant employers and/or insurance companies.
When victims start to recall their time at different workplaces, a strikingly similar pattern related to historical occupational exposure, almost always emerges. Time and time again, victims recount that the company employers failed to warn their workforce or protect them against the potential health risk caused by the presence of asbestos. The dangers can occur either from the direct handling of the materials or simply being inside a premises where asbestos insulation was part of the building fabric.
Legislation for all workplaces from the late 1960s and early 70s required employers to comply with a duty of care to protect their staff from exposure. However, the lack of asbestos awareness or deliberate neglect could still continue even after the first asbestos ban in the mid 1980s. However, the facts of every case will be different and a defendant will often vigorously deny responsibility and argue the extent of the liability.
Often not enough to be diagnosed with mesothelioma
The details of the facts may appear extraordinarily complicated to the claimant. At the outset, an experienced and expert solicitor should explain carefully to the victim that it’s often not enough to be diagnosed with mesothelioma and then point to a specific time and place when the exposure is strongly believed to have occurred.
The success of a claim will require to show, for example, that the level of asbestos dust inhaled was above the regulatory level in operation at the time of the exposure. In other case types, it will be required to determine the percentage level of an exposure believed to have occurred at each of a number of different workplaces in a claimant’s lifetime. A defendant may dispute that an exposure at their workplace, which occurred later in a claimant’s employment history had materially contributed in any significant way to the development of mesothelioma. The hearing can in some instances, lead to a first and even a second appeal, which will prolong the case for up to a year or more.
Cases rarely extend to a full trial
Tragically, some victims lose their life to the fatal cancer before a verdict is reached, and it is left to the family and the solicitor to continue fighting their case. Fortunately, cases rarely extend to a full trial unless the evidence or circumstances are particularly complex involving multiple claims and defendants, or a disputed point of law or evidence. Once the former employer – or if they are no longer in business – their insurer has been traced, a solicitor will aim to try and settle the claim out of court within four to six months, but can occur at any stage from the first contact with former employers or insurance companies.
In recent years, the government has brought in several changes to different aspects of personal injury claims, which have affected the mesothelioma claims process itself, and led to further reverses of policy. It’s not surprising that some victims may feel confused by the likely financial outcome. The hope is always that their immediate care and treatment needs can be taken care of in the time that they have left, and their spouse and any dependants will be financially secure.
An asbestosis lawyer usually provides their legal services under a conditional fee agreement (CFA), more popularly known as a ‘no win no fee’ agreement, and a claimant will be awarded 100 per cent of the compensation claim if successful. Mesothelioma cases are also exempt from the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012, which means that a solicitor can recover his or her fees and after-the-event insurance from the employer defendant or the insurer.