Following on from our posts on this subject on 19 March 2014 and 19 February 2014, we can now report that the Diffuse Mesothelioma Payment Scheme (the “Scheme”), established under the Mesothelioma Act 2014, opened in late April to applications by eligible victims of mesothelioma.

The purpose of the Scheme is to assist those victims of mesothelioma and their dependants who cannot access compensation elsewhere, usually because they cannot trace their employer or their employer’s insurer.

The disease

Mesothelioma is a signature asbestos related disease.  It is a rare cancer of the mesothelium, the tissue which lines most of the body’s internal organs.  Mesothelioma is most commonly found in the lining of the lungs (the pleura) or the peritoneum (lining of the abdominal cavity).  It is a terminal disease which, after a latency period of up to 40 years, usually sees the victim die a painful death within two years of diagnosis.

The ongoing asbestos problem

Most mesothelioma sufferers will have been occupationally exposed to asbestos because of the nature of their job (construction or shipyard workers, pipefitters, boiler workers etc).  But the dangers of asbestos and the risk of mesothelioma are not confined to industrial sites and to those who worked on them.  According to the WHO and other leading medical bodies, there is no safe level of asbestos exposure and mesothelioma can be caused by very limited exposure to asbestos (particularly to the more dangerous crocidolite (blue) and amosite (brown) fibres).  Although there are identifiable  geographic ‘hotspots’ for mesothelioma, such as dockyards in Barrow-in-Furness and Glasgow, asbestos is an ongoing national problem.  Nearly every category of private and public building in the UK, particularly in the post WW2 redevelopment era, used asbestos for its thermal insulation and fireproofing qualities.  It is not just workers at industrial plants or dockyards who have been potentially exposed.  Post WW2 hospitals, airports, schools, theatres and cinemas still have large  quantities of asbestos.  When that asbestos is disturbed for renovation purposes, for example, fibres are released and workers and bystanders potentially exposed.

Given the huge numbers of people exposed over decades and the long latency period of mesothelioma and other asbestos related diseases, asbestos losses are expected to develop for many years to come and ultimate industry loss estimates continue to rise (A.M. Best revised its estimate of insurance asbestos losses upwards from $75 billion to $85 billion in December 2012).

Employers’ liability

Unlike the US, where product liability is the vehicle through which victims of asbestos related diseases are compensated, in the UK it is employers liability which is responsive.

In the UK, most people who were exposed to asbestos at work have been able to prove their employers  were liable.  Insurance is compulsory for employers in the UK and has been since the early 1970s.

But what happens when the victim is unable  to trace their employer or employer’s insurer? How are they to be compensated?  It is this gap which the Scheme is designed to address.

The Scheme

The Scheme will compensate mesothelioma sufferers (or their dependants if the sufferer has died) who were exposed to asbestos either negligently or in breach of a statutory duty by their employers and who are unable to bring a claim for compensation against their employer or their insurer.  The applicant will need to prove the victim had mesothelioma, that he was exposed to asbestos in his employment as a result of negligence and that he has tried to locate his employer and employer’s insurer.  Unlike the existing 2008 scheme and Pneumoconiosis etc. (Workers Compensation) Act 1979, where negligence is not required, the Scheme is not a “no fault” arrangement.  The sums available under the Scheme are however considerably higher than those available under the previous arrangements with eligible applicants expected to receive an average payment of £123,000.

Applications can now be made to the Government appointed scheme administrators, with the first payments expected by late Summer.  The insurance sector, after some wrangling with government and victim support groups, is contributing £350 million to the Scheme (in essence a levy) over the next decade, with the assistance of some initial funding by the Government.

How many applicants will there be?

That’s the big unanswered question. Mesothelioma victims have to effectively choose between making an application for compensation under the Scheme or going through the 1979 Act/2008 scheme. Although the compensation values available under the Scheme are higher, the level of evidence required, including the requirement to demonstrate negligence on the part of employers, is stricter under the Scheme than under the 1979 Act/2008 scheme.  Mesothelioma sufferers and their legal advisers will need to consider their particular circumstances with some care before electing which route to go down.  If establishing the required negligence is going to be difficult, victims may be better off ignoring the temptation of higher compensation values under the Scheme and ‘playing safe’ by instead seeking compensation through the “no fault” 1979 Act /2008 scheme.