Opinion
Handling asbestos-related claims in England
11th Nov 2021
In 1945, the Chifley Government introduced the assisted passage migration scheme in an effort to increase the white Australian population. This ‘populate or perish’ policy resulted in the migration to Australia of one million British people. As there was an emphasis on attracting tradesmen to help develop Australia’s burgeoning industries, many of these new residents had been exposed to asbestos at work in the UK and carried the risk of developing asbestos-related diseases decades later due to the lengthy latency periods of such illnesses.
In these circumstances, jurisdictional issues arise when workers have been exposed to asbestos in England/Wales yet their asbestos-related illness has developed in Australia. In order to achieve the best outcome for such clients, consideration of the level of damages and expediency are both key, along with issues such as preferential legal costs, procedural convenience and potential to fund life-saving treatment. In this article, we briefly consider a few relevant factors for advising clients.
Specialist asbestos claim court system
England has a specialist court system for dealing with asbestos claims. Although the procedural time frames cannot always compete with those of some states and territories in Australia, there are a number of features of the specialist court system that significantly benefit claimants. The UK’s asbestos ‘fast track’ procedure aims to resolve liability early so that damages can be assessed on a full-liability basis, without the need to account for litigation risks. Interim damages can also be recovered at an early stage. Further, using English courts to determine matters of English law may avoid jurisdictional arguments or dealing with defendants applying to strike out, or transfer the proceedings to the UK on forum non conveniens grounds.
Damages and medical treatment costs
While damages can only properly be assessed on a case-by-case basis, a notable difference in England is that there is no requirement to issue proceedings within the claimant’s lifetime to preserve heads of loss.
In mesothelioma claims, rather than estimating medical costs at settlement, English courts also allow the resolution of cases with future medical expenses to be left open, enabling claimants to seek recovery of private medical costs and associated expenses at a later date. With innovative mesothelioma treatments (such as immunotherapy) becoming more common, we are seeing claims in England with ongoing costs of up to hundreds of thousands of pounds – all paid for by defendants – where a claim originally settled many months before.
Protective costs package
Both UK and Australian jurisdictions enjoy the benefit of ‘no win, no fee’ funding, but with legislative protection for mesothelioma victims in England, clients can be offered a protective package which ensures recovery of all reasonably incurred costs from the defendant (if successful) or payment of all liabilities via ‘after the event’ (ATE) insurance (if unsuccessful). Claimant lawyers are entitled to recover both the ATE insurance premium and a costs uplift from the defendant. A well-drafted agreement between English and Australian firms working together ensures that both firms can benefit from the ATE insurance and a costs uplift, while client damages are fully preserved.
Limitation
Limitation is 3 years from the date of knowledge of an ‘actionable’ illness (causing a measurable disability). With only one cause of action for all asbestos diseases, an earlier diagnosis of an asbestos-related disease can impact on the ability to claim for mesothelioma later. Claims for benign diseases can be pursued on a provisional basis to provide for the award of early damages, and the right to claim for malignant illnesses is preserved.
In fatal claims, limitation is 3 years from the date of death and the period is reset on death where the date of knowledge was within 3 years of death.
Practice points and potential pitfalls
Investigations into the defendant’s insurance are crucial, together with advice on the Diffuse Mesothelioma Payment Scheme (DMPS),[1] a fund of last resort for untraced defendants/insurance which has differing statutory rules that are often more restrictive than for civil claims.
The English Coronial system mandates consideration of an autopsy which presents complex evidential questions. Steps should therefore be taken to preserve evidence on death, sometimes requiring careful advice on the need for post-mortem analysis.
It is important to note that, if exposure took place in Scotland or Northern Ireland, specialist advice will be needed from lawyers in those jurisdictions as they have their own legal systems with significant differences.[2]
Asbestos litigation is complex and jurisdictional issues risk muddying the water further. Where cases involve foreign exposure, it is sensible to seek early expert advice to ensure that clients can be fully advised and to maximise recovery.
Daniel Easton and Kevin Johnson are Partners at Leigh Day Solicitors in England.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
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