Compensation from your employer
Civil Compensation Employers, owners of premises, manufacturers, and others, all have a general duty of care to people who work and to those that may be affected by their operations. If you were exposed to asbestos as an employee and suffer an asbestos disease or if you have been affected as a non-employee by the activities of others, you may be able to claim compensation through the courts. If you sue someone for negligence you do so through the civil courts. You will ask for compensation because you have suffered harm as a result of their negligence. Civil courts cannot punish any one who is guilty of negligence by fining them or sending them to prison, they can only order them to pay compensation. If you have worked in a job where you were exposed to asbestos you will have to explain where and how you were exposed to it. You will also have to explain how your employer failed to protect you from asbestos dust. Sometimes this can be difficult since it may be many years since you worked with or came into contact with asbestos, and it can take many years for an asbestos disease to develop. However, until well into the 1970s, employers generally failed to protect their employees from asbestos dust. Even today some employers fail to adequately protect their employees and members of the public from exposure to asbestos dust. Suing your employer for negligence Although you may successfully sue your employer for negligence, it is your employer’s insurance company that will actually pay compensation. If your employer has gone out of business it might still be possible to sue if the insurance company can be traced. If that is possible, then a solicitor can ‘bring the company back to life’ for the purposes of claiming compensation. Most cases do not actually go to court, although the case might continue right up to the day of the court appearance. Because asbestos cases can be complex it is essential that you have a solicitor who specialises in asbestos cases. GMAVSG can give you information about solicitors who are experts in asbestos claims. Since it is no longer possible to get Legal Aid for personal injury cases you will have to get a solicitor to take on your case on a ‘no-win-no-fee’ basis. This is called a ‘conditional fee agreement’. If you are a member of a Trade Union you should ask for legal representation as it will mean that you will not have to pay any money up front. Conditional Fee Agreement Before you sign an agreement It is usual for a solicitor to make preliminary enquiries to see if you have a good case before a conditional fee agreement is offered. This should not take a long time. Your solicitor should be able to tell you if you have a case within about two weeks, although sometimes it may take longer. It is possible that you will be charged some money for these enquiries that may include getting work, insurance or hospital records. Make sure that your solicitor makes very clear to you what you might have to pay for these enquiries. How the conditional fee agreement works You take out an insurance policy so that in the event of you dropping or losing your case you will not have to pay the other side’s legal charges or your own solicitor’s charges or money your solicitor has laid out to others (“disbursements”) during the case – these will be covered by your insurance policy. If you win, your solicitor claims his/her charges, money laid out to others and the cost of buying insurance for you, from the other side. Also, if you win, your solicitor may be entitled to a “success fee” for taking on the risk of your case which will be paid by the other side, not by you. The Insurance Policy You purchase an insurance policy. The cost of the policy will vary depending on the complexity of your case. Your solicitor may pay this for you and recover the cost from the other side if you win. Solicitors on GMAVSG’s panel of solicitors will ensure that your inability to pay for the insurance policy does not prevent you from taking legal action. If, for any reason, you are unable to pursue a claim because you cannot afford the insurance policy let GMAVSG know. Court fees and experts fees Once court action has started court fees have to be paid and it is likely that experts’ reports will also have to be paid for. Money paid to others, such as court fees and experts’ reports are called ‘disbursements’. These can cost a lot of money that may be difficult for you to pay. Your solicitor should pay these fees for you. If you win, your solicitor claims them back from the other side and if you lose your insurance policy will pay them. Make sure you ask your solicitor who is responsible for paying court fees and for experts’ reports. It is possible that some of these expenses may not be fully recoverable. Your solicitor must explain this to you and let you know how much you may have to pay. They should be able to quote you a figure. If you think it is too much, speak to another solicitor or contact the asbestos support group. The success fee Your solicitor will charge a success fee if you win. The success fee is now no longer taken out of your compensation, but is paid by the other side. Compensation Compensation is paid for the damage you have suffered because you have an asbestos disease, e.g. loss of earnings, pain and suffering etc. These damages are put in categories called ‘heads of compensation’. You can be paid compensation under the following heads: · Pain and suffering · Loss of earnings · Care for you by someone else · Medical expenses · Special equipment · Loss of pension Provisional compensation It is possible to claim compensation for some asbestos diseases, but reserve the right to apply again to the court for further compensation if your disease gets worse or you get a more serious disease. The damages you receive are then called ‘provisional damages’. You may decide to take a final settlement which will be greater than a provisional one but you will not be able to seek further damages. Time limits You must start legal proceedings to claim compensation within three years from the date that you could be expected to know that you have an asbestos disease. Do not assume it is too late after 3 years. Get advice about this because judges have in many cases allowed cases to be brought after more than 3 years. Compensation Recovery Money paid by the DWP in benefits is recoverable from your compensation. This money cannot be recovered from compensation paid to you for pain and suffering. If you receive compensation for loss of earnings, mobility, cost of care, the corresponding DWP benefits under these ‘heads of compensation’ will have to be repaid. If the benefits you have been paid, say for mobility, are more than the compensation you have received for mobility, your compensation for other ‘heads of damages’ cannot be reduced to make up the short fall. Here is an example: An injured person is awarded £12,000 compensation for past loss of earnings and £10,000 for pain and suffering. The person has previously received £15,000 of Incapacity Benefit and £5,000 Disability Living Allowance (care) from the DWP – a total of £20,000 of recoverable benefits. In this case the injured person’s compensation for loss of earnings will be reduced to NIL, but they will receive the full £10,000 compensation for pain and suffering. It is up to the person paying the compensation to make up the full £20,000 of benefits. Clawback of benefits stops on settlement of the case. It is therefore very important to have a solicitor with sufficient experience to conclude cases at the earliest date possible. Choosing a Solicitor It is very important to chose a solicitor who has experience of personal injury claims. GMAVSG has prepared a panel of specialist asbestos solicitors. We have asked all solicitors who wish to be included on the panel to complete a questionnaire. All the solicitors that successfully complete the questionnaire will have shown that they not only have years of experience in asbestos cases, but also provide the most favourable financial advice and help. They must also show that they are committed to fighting for a better deal for asbestos victims. We do not have any special relationship with any of the solicitors on the panel. We are a completely independent, voluntary organisation. Please let us know how you are treated by any solicitor you choose from our panel to help us review their performance. When choosing a solicitor be careful not to use ‘claim handlers’ or similar organisations who advertise on TV and radio who may have thousands of clients and will not give you a personal service. They are sometimes more interested in doing a deal with the insurer rather than getting the best deal for you. Questions you should ask your solicitor If you do not choose a specialist solicitor from the GMAVSG panel of solicitors, you should ask any solicitor you chose the following questions to make sure that they have the expertise to manage your case: · Does the solicitor specialise in asbestos cases? · How many asbestos cases has the solicitor handled? · Is a conditional fee agreement being offered and what is the success fee? · Will the solicitor pay for your insurance policy, or at least help you find ways to pay for it? · Will the solicitor pay for all the court costs and experts’ fees for you? (The solicitor can claim these back). · Is the solicitor a member of the Law Society’s Personal Injury Panel? · How soon does the solicitor expect to start a court action? This should be done quickly to put pressure on the insurance company. Inquests and Coroners Courts Deaths which may be caused by an industrial disease, such as asbestos related diseases, must be referred to a Coroner. The main reason for this is to provide information to Government on the number of people who die from such diseases. The incidence of death due to industrial diseases is an important public policy issue. Families who have been affected by a work related disease generally want this fact to be publicly acknowledged and recognised. The Inquest When an asbestos-related death is reported to the Coroner, the Coroner’s Officer will visit the family in order to ask about the deceased’s work history and exposure to asbestos. This information will assist the Coroner in deciding whether to hold an Inquest. The Inquest is to establish the cause of death. For many families the Inquest will answer a vital question: what caused their loved one’s death. The Coroner’s Officer will give the family a booklet about Coroner’s Inquests and answer any questions they may have. The Post Mortem In order to establish the cause of death the Coroner may decide to hold a post mortem. In some cases the Coroner will insist on a post mortem if that is the only way to establish the cause of death. It may, however, be possible to decide on the cause of death without a post mortem and the Coroner may be sensitive to a family’s wishes. As well as determining the cause of death, a post mortem may also provide information that will help to decide whether a claim for compensation is a possibility. So it is important for a family to consider carefully whether a post mortem should be carried out as it will not be possible, at a later date, to provide evidence that only a post mortem can give. Interim Death Certificate An Interim Death Certificate will be issued by the Coroner so that the funeral is not delayed if an Inquest is necessary. This Interim Certificate will also help families to claim appropriate benefits. On completion of the Inquest a full certificate will be provided. The Inquest Procedure Although the Coroner’s Inquest can be very beneficial to a family it occurs during a very stressful time and the prospect of an Inquest can be daunting and frightening. Ask the Coroner’s Officer about the Inquest so that you know what to expect and talk to us at GMAVSG if you want support at the Inquest. There will be a jury at an Inquest if the person who died was currently working for an employer. In most cases, sufferers of asbestos diseases will have retired from work as it can take so long for the disease to develop. Representation at the Inquest Your solicitor is permitted to attend the Inquest on your behalf and to ask witnesses questions, in accordance with the rules, to assist in determining the cause of death. If you do not have a solicitor, the Coroner may allow a representative to ask questions of witnesses. The main purpose of the Inquest is to establish the cause of death and the Coroner will give a ‘conclusion’ or verdict on the cause of death. This verdict does not however imply that anyone is guilty of an offence and does not suggest the criminal or civil liability of any person. Although the conclusion or verdict given by the Coroner is not binding on any other authority, it is, inevitably, very important to the family of a person who has died of an asbestos-related disease. ‘Death by Industrial Disease’ is the usual verdict in the case of an asbestos-related disease. This verdict provides some comfort to a family when the fact that the cause of the death is industrially related is publicly acknowledged. Unfortunately, there are occasions when the deceased’s work history and exposure to asbestos is not taken fully into account and undue reliance is placed on asbestos fibre counts. In these cases there is an understandable feeling of injustice if the verdict is not ‘Death by Industrial Disease’. It is therefore important for the Coroner to have a full work history. If you have a solicitor then a statement can be provided to the Coroner. If you do not have a solicitor try and make sure that the Coroner has as much information as possible about the work history and exposure to asbestos. Generally, Coroners apply a low burden of proof in cases of industrial disease and families will leave an Inquest feeling that there has been a proper and thorough inquest into the death of a family member. The conclusion of an Inquest is usually the end of the formalities to do with a death and hopefully a time when families feel that the truth has been established as to the cause of death. Civil Compensation If a Coroner does not give a verdict of ‘Death by Industrial disease’ this does NOT mean that you are unable to claim compensation through the courts. The Home Office Guide which the Coroner’s Officer will give you explains that evidence given at an Inquest may assist in a claim for compensation and advises that you may want to consider seeking legal advice before the inquest. This is important advice. If possible, you should talk to a solicitor who specialises in asbestos cases so that you have proper representation at an Inquest.