Yesterday (19 July) the House of Lords, as the Upper Chamber of
Parliament, approved the Government's proposed amendment to the
Compensation Bill to allow for full compensation for victims and
their families bringing mesothelioma claims. The amended bill
passed through the House of Lords without opposition following the
unopposed Third Reading of the Compensation Bill in the House of
Commons on Monday, 17 July.
On 3 May 2006, barely 10 weeks ago, the Judicial Committee of
the House of Lords (the most senior Court in the UK) ruled (in
Barker v Corus) that a mesothelioma Claimant was not
entitled to recover full compensation from any single employer that
exposed him to asbestos, as had been the law since the case of
Fairchild in 2002. Instead they ruled that mesothelioma Claimants
could only recover a proportion of damages from each employer. Many
employers who exposed their workers in the past have since gone out
of business. Because their insurers cannot be traced, the Judgment
had the effect of reducing the compensation payable to mesothelioma
victims and their families. It also had the effect of prolonging
cases whilst extensive searches were made for the insurers of
long-dissolved companies. As a result of the ensuing outcry from
MPs, victim support groups and others, the Government moved swiftly
to try to reverse that decision, by tabling amendments to the
Compensation Bill that was already passing through Parliament.
On Monday 17 July the House of Commons approved amendments to
the bill which would:
- give back to mesothelioma Claimants their right to obtain full
compensation from any single negligent employer
- entitle employers and insurers to seek contributions from other
employers and insurers when available
- enable employers and insurers to obtain contributions from the
FSCS (Financial Services Compensation Scheme) in cases involving
dissolved employers who have no effective insurance.
The Minister, the Rt Hon Bridget Prentice MP, said the amendment
would also stop insurers arguing that they were only responsible
for a proportion of the liability of the insured employer.
Now that the House of Lords has passed the amendment the Act may
become law before the end of July and will affect all mesothelioma
claims that are settled or come to trial after that date. However,
the amendment contains an additional, novel, proposal that all
mesothelioma claims that have been settled or tried since the
Barker decision could be re-opened.
Andrew Morgan, Partner in the
Asbestos Claims Department of Field Fisher
Waterhouse LLP, says:
"This is an extraordinary reversal of fortune for victims and
families bringing mesothelioma claims. Barely 10 weeks ago we were
faced with the prospect of having to tell our clients that
suddenly, as a result of the Barker Judgment, they would
only recover a fraction, in some cases a small fraction, of the
compensation to which they were entitled. They were faced with the
task of having to pursue individual insurers much more vigorously
or else lose compensation.
In most mesothelioma claims timely payment of compensation
reassures the victim that his family will be provided for when he
is gone or gives his widow and dependent children a measure of
financial security after his death. Anything that threatens the
speed of obtaining compensation or the amount of compensation that
is payable in mesothelioma claims is very serious indeed.
The Government has also taken the opportunity to allow for
reform of the FSCS. Up to now the inclusion of the FSCS as the fund
representing insolvent insurers has led to sometimes very
substantial delay in the settlement of mesothelioma claims because
the "lead" insurers have been prevented from settling the claim
early. The amendment to the bill will allow the lead insurer to
settle the claim early and in full to get a contribution from the
FSCS. That should greatly speed up the settlement of affected
mesothelioma claims.
The fact that the Act will be retrospective, as far back as 3
May of this year, is something that was much sought after by victim
support groups - it will complete the picture for mesothelioma
claims for the present".
Field Fisher Waterhouse LLP is one of the country’s leading
asbestos disease claims firms. Over twenty-five years Rodney Nelson-Jones and his team have recovered
more than £100M in over 1,750 successful cases.
For more details or comment please contact Andrew Morgan (020 7861 4036) or Peter Williams (020 7861 4825), partners in the
Asbestos Claims Department of Field Fisher
Waterhouse LLP.