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Mesothelioma Bill will help thousands - but thousands more are left out
The new Mesothelioma Bill announced in the Queen’s Speech to Parliament this week will lead to thousands of industrial disease victims finally receiving the compensation to which they are entitled – but will leave still thousands more unable to make a claim.
Bridget Collier, head of the Industrial Disease team at Fentons Solicitors LLP, said that while the bill included in the government-written speech would enable those diagnosed with mesothelioma since 25 July 2012 to make a claim if their employer’s insurer could not be traced, it related only to those who suffered specifically from that one asbestos-related cancer and discounted the many thousands of victims who were diagnosed before that date.
“This bill has been a long time coming, but is really nothing more than a starting-off point as far as I’m concerned,” said Bridget, a senior litigator with the Association of Personal Injury Lawyers (APIL), who has specialised in industrial disease cases for more than 16 years. “When this was first announced as a ‘proposed scheme’ by the government back in August last year, we were amongst those campaigners who criticised it for simply not going far enough,” she said. “Unfortunately the bill as it stands is still woefully inadequate.”
The purpose of the bill is to ensure victims of mesothelioma are able to claim compensation in those cases where a liable employer or insurer cannot be traced. It should allow around 3,500 sufferers to claim approximately £355 million from an insurance industry fund over the next decade, in cases where no policy can be found or where insurers have failed to keep adequate records.
However Bridget, who for many years has seen first-hand the devastating impact of mesothelioma and other asbestos-related illnesses, said the bill falls down on a number of points – not least the fact that the proposal is to offer victims a payout set at 70% of the average compensation paid out by insurers to those not using the scheme.
“To cap the payout at 70% of an average is not just arbitrary but massively unfair,” she said. “The range of compensation awarded in mesothelioma cases covers two extremes, particularly when it includes victims who settle early, without seeking legal advice, in order to ensure they receive any money at a time they need it for bills and care,” she said. “To take an ‘average’ and then cap payments at 70% of that average just adds insult to injury.”
She also said the bill would mean that the proposed fund would not be of any benefit to many thousands of industrial disease victims who needed help right now.
“On the face of it the bill is obviously welcome news for those who have been diagnosed with mesothelioma on or after 25 July last year in cases where an insurer cannot be traced,” she said. “But it brings nothing in the way of help for victims diagnosed before that date and who also cannot trace their employer’s insurer. Is the government saying that their claim is not as valid or worthy, simply because they were diagnosed before – in some cases possibly just days before - an arbitrary date that this scheme was finally announced?”
Bridget, a partner with the firm, said another concern was that the bill only applied to those workers who developed mesothelioma. “Mesothelioma is a particularly cruel and insidious disease, but while the scheme brings some hope of securing compensation to the thousands of people expected to be diagnosed in the coming years, it also brings yet more heartache for those who are diagnosed with other asbestos-related diseases - such as lung cancer, asbestosis or pleural thickening - who have been summarily excluded.”
She said there was no reason whatsoever to prevent people with other asbestos-related diseases from also being able to claim from such a fund. “For more than a decade, we have been calling for insurers to set up a ‘fund of last resort’ for those cases where someone develops an industrial disease but is unable to claim simply because their employer’s insurance policy cannot be traced,” said Bridget.
“The consultation process over a proposed Employers’ Liability Insurers’ Bureau, which would be funded by insurers to enable those who are unable to trace their insurer to still receive the compensation they deserve, began under the previous government. Unfortunately this new bill falls a long way short of what the proposed ELIB would have been.
“When campaigners called for an ELIB, the idea was that it would mirror the work of the Motor Insurers’ Bureau - which acts as a fund of last resort for anyone injured or affected by the actions of any uninsured or untraced driver,” said Bridget. “The MIB does not stipulate that a victim can only claim if they have been affected by a certain type of uninsured driver, or injured by someone driving a certain type of untraced vehicle. To set the qualification criteria for this new scheme so as to differentiate between - and squeeze out - groups who face a similarly painful future, seems to be at best unfairly disproportionate, at worst just cruel and thoughtless.
“We have already seen campaigners and action groups calling on Members of Parliament to vote with their consciences and make several amendments to the bill before it is passed,” said Bridget, “and I would add my own voice that call. This Bill is not what campaigners have called for nor what is needed, and there are a great many fundamental points that need to be thoroughly re-examined and amended before it is passed as legislation,” she said.
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