On 25 July 2006 the Compensation Act came into force. The Act
ensures mesothelioma claimants can more easily recover the full
100% of compensation that is due to them by overturning the
decision of the House of Lords in Barker v Corus. The House of
Lords said that each employer should only pay a fraction of the
compensation, according to period of asbestos exposure for which
they were responsible. This threatened to delay and also to reduce
compensation payments to mesothelioma victims. The Compensation Act
instead says that each employer must pay compensation in full.
Employers can ask for contributions from other employers but it is
the employers and their insurers, not the mesothelioma victims, who
bear any shortfall.
The Act makes further improvements. Before the Act the Financial
Services Compensation Scheme (FSCS) could sometimes make payments
to mesothelioma victims, reducing the amount that employers and
their insurers pay. The FSCS would only make payments where one of
the relevant insurers was insolvent and where no one had yet paid
full compensation to the mesothelioma claimant. This had the effect
of causing great delay in some case. The effect of the Compensation
Act is to allow insurers to pay compensation to mesothelioma
victims first and then to claim a repayment from the FSCS
afterwards. The Government hopes that this small change will remove
one further obstacle in achieving speedy payments in mesothelioma claims.
The Treasury and the Financial Services Authority (FSA) today
(22 September) began their joint consultation on the rules that are
needed to bring this change into force by holding a meeting with a
number of interested groups. The consultation process is due to end
on 6 October.
Andrew Morgan, Partner in the
Asbestos Claims Department of Field Fisher
Waterhouse LLP, attended the meeting. He called for full
compensation for mesothelioma victims, saying:
"This meeting marks the beginning of an intense process of
consultation to improve the way that mesothelioma claims are
resolved. Today's meeting dealt with a very narrow issue: do the
proposed rules achieve the desired effect of removing one
particular stumbling block. With some very minor amendment, I think
they do. But this was also an opportunity for us, who represent
mesothelioma claimants, to meet and find some common ground with
the insurers who ultimately pay the compensation. There was
considerable agreement, for instance, that the FSCS should pay its
share of compensation in full, rather than paying only 90% as at
present. For the insurers there is very little benefit in the
present arrangement, if any, but for the victims that shortfall is
unfair and unjust."
The Government is presently consulting on a range of issues
relating to mesothelioma claims. Andrew Morgan says:
"Field Fisher Waterhouse LLP will be taking an active part in
shaping the future for the handling of mesothelioma claims, as we
have done in the past. We will continue to help the Association of
Personal Injury Lawyers (APIL) and we will bringing our own
considerable expertise to bear to help articulate the voice of the
victims."
For more information contact Andrew
Morgan (020 7861 4036) Field Fisher Waterhouse LLP
You can find out more information about our Personal Injury
Practice, please visit our personal injury
section. You can also read more about our expertise in asbestos disease claims.