Anyone who develops asbestos related lung cancer or mesothelioma faces a problem. They will have been exposed over a number of years by a number of employers, and some of those employers and their insurers will have disappeared over that time. So how does the claimant get compensated in full?
If he has mesothelioma that will not be a problem as long as at least one defendant is still around, either with the money to compensate him or an insurer willing to do so. This is because the Compensation Act makes that employer liable for the whole of his damages rather than just the proportion reflecting the period of that employer's negligent exposure.
However, the Court of Appeal's decision in Heneghan means that if the claimant has developed lung cancer instead of mesothelioma he can only recover damages against each defendant for the proportion of their individual periods of exposure. Unless a claimant achieves a full house of defendants and insurers they will go uncompensated for the missing periods.
The legal reasoning is impeccable but the outcome is unlikely to stand for long. An amendment to the Compensation Act cannot be far from the statute books. Lung cancer is no inherently less deserving than mesothelioma.
What should you do?
If you have any cases that you can settle now then it would be a good idea to do so quickly - the window is not likely to remain open for long.