The Mesothelioma Bill*
'One has also to bear in mind that, typically, the worst symptoms of pain, suffering and loss of amenity occur in the last weeks and days of the disease's progress and that the death… is a horrible one.' (Senior Master Whitaker: Smith v Bolton Copper Limited: Unreported 10 July 2007 QBD)
Can we truly understand what it is like to be without hope? Those sinners who approached the gates of Dante's Hell were told to abandon hope, but this was their punishment for a life of selfish gratification. Every year the lives of about 2,000 people in the UK effectively end with the news that they suffer from mesothelioma – a fatal cancer of the lining of the lung or abdominal cavity.
In most instances, their exposure to the microscopic fibres occurred in their workplaces during the 1940s-1970s, when asbestos (from the Greek word meaning 'inextinguishable') was widely used in construction, shipbuilding, engineering and power plants. The public was ignorant of the risks but the dangers were known, and the first asbestos-specific regulations were enacted in 1931.
The life-expectancy of a mesothelioma sufferer is unpredictable but death will be inevitable and imminent. One can undergo crippling invasive surgery, nausea-inducing drug therapy and draining radiotherapy, but the outcome will rarely extend life beyond 12 months from diagnosis. Most sufferers are men in their 60s-80s who, in a manner typical of their generation, make no case for themselves but only ask for the comfort of the knowledge that their spouse will be financially secure after they have gone; a small flicker of light in their darkness.
In the last decade, the insurance industry has made various attempts to deflect responsibility for the harm their insured have caused by fighting a series of cases in the higher courts on causation (for example, Fairchild and Barker) and more recently on breach of duty (for example, Williams, Sienkiewicz). Then there was the 'trigger litigation' which achieved nothing more than delaying the award of damages to those dying from mesothelioma by more than two years (see expected life-expectancy, above).
Most mesothelioma claimants succeed in claims for damages. They were exposed by employers to levels of fibres which were foreseeably likely to increase the risk of them contracting the condition. Some, however, struggle to find an insurer for the long ago dissolved business of their former employer. It is these people that the bill seeks to assist. The bill developed from the government's consultation on accessing compensation, which closed in May 2010. It is a scheme of last resort, designed to provide a means of payment for mesothelioma where the insurer is untraceable. The proposed payment was recently increased from 70% to 75% of the average payment (based on age) recoverable in civil claims. For example, a 70-year-old man will receive £106,355.
However, from this sum will be deducted payments under the Pneumoconiosis Act 1979 and the Child Maintenance and other Payments Act 2008, both of which make lump-sum awards to mesothelioma sufferers. It seems churlish to criticise the intention of the bill. But, for the following reasons, it merits such criticism.
- It only applies to the condition of mesothelioma. In 2010, it was estimated that there were 4,000 deaths from asbestos-related conditions in the UK. Of those only 2,347 were mesothelioma-related; 400 were caused by asbestosis and the remainder lung cancers linked to asbestos exposure.
- The bill excludes all those diagnosed before 25 July 2012. Why? The consultation closed on 5 May 2010. Surely all diagnoses beyond that date should be entitled to recover.
- The average payment will be reduced by 25%. Why? The victims merit a full award. Most would doubtless have strong claims against their former employers. They will die within months. Their claim is readily calculable in a mathematical sense. There is no rationale for an arbitrary reduction. As has been pointed out in the House of Lords, even the Financial Services Compensation Scheme pays 90%.
- The reduction of the award by payments made to the victim by the government schemes (that is the taxpayer) is in full. This is inconsistent with the victim only recovering 75% of the full civil damages.
- The reduction in the payment by 25% of the average damages recovered in a civil claim is a disincentive to insurers to properly trace the insurance history as, perversely, the payment made to the victim/the estate of the victim will be less if no insurance record is found.
- It is estimated that the cost of the scheme will be in the region of £350m over 10 years. Full payments would, perhaps, increase this sum to almost £425m, which is modest when one considers that in 2012 the cost to the British insurance industry of the flood reparations was over £1bn.
While the British death rate from mesothelioma is now the highest in the world (one in 40 of all male cancer deaths below 80 years of age), the reduction in asbestos usage since the mid-70s has resulted in a rapid fall in death rates for those aged 35-49. Therefore, this is, thankfully and finally, a diminishing problem.
In Fairchild, Lord Hoffmann said that: '… there is a strong policy argument in favour of compensating those who have suffered grave harm…' He thought it 'morally wrong' to find for the defendants in that case. I propose that the same sentiment should apply to the artificial limitations set out above. There is no break in the clouds for a mesothelioma sufferer.
Only sorrow bears down on him. Often, when one looks in their eyes one sees a limitless depth of desperation for a glimmer of hope which I defy anyone not to find both overwhelmingly heartbreaking and intensely anger-inducing. I have heard it said that the government could have fully paid out to those to whom this bill will apply many times over, if they had not bailed out the bankers. This is irrelevant. Comparison between a society's moral obligation to its sick and dying members and propping up the banking industry insults the former.
I believe society must do what is right. Parliamentary debate about what percentage of the full award a dying man should receive, while inexorably and painfully his cancer progresses, diminishes us all.
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*This article first appeared in the July 29, 2013 issue of The Law Society Gazette. It is being reproduced with the author's permission. Simon Allen can be contacted by email at: JSmythe@slatergordon.co.uk
