Post by nickd on Mar 30, 2012 20:38:11 GMT 1
Recently there has been some developments which will hopefully go some small way to helping mesothelioma sufferers seek legal redress - but you need to act now in order to keep key amendments made in the House of Lords to the legal aid bill (LASPO). Experts say that about 2,000 people in the UK are diagnosed with mesothelioma each year, with numbers rising. It can also take up around 30 - 40 years before it is diagnosed. More people die of it than they do in road traffic accidents so the experts say.
These concern a key ruling in the Supreme Court in which Insurers lost their case, two key amendments were also voted for in the House of Lords in what we call 'LASPO' - but these amendments could be overturned by the House of Commons who say it is more important to reduce expenditure; - they do not see mesothelioma sufferers as a special case.
These developments are both very relevant to mesothelioma sufferers. The amendments were passed in the legal aid, sentencing & punishment of offender's bill (LASPO) but you do not need to be receiving legal aid to be affected by the bill as it covers other areas of legal reform as well.
To find out more about mesothelioma use this link
www.nhs.uk/conditions/mesothelioma/Pages/Definition.aspx
(1) What the Supreme Court said in their recent judgement.
The Supreme Court dismisses insurers’ appeal in Supreme Court in case involving Mesothelioma
28 March 2012
PRESS SUMMARY
Employers’ Liability Insurance “Trigger” Litigation: BAI (Run Off) Limited (In Scheme of Arrangement) and others v Durham and others [2012]
UKSC 14
On appeal from [2010] EWCA Civ 1096
JUSTICES: Lord Phillips (President); Lord Mance; Lord Kerr; Lord Clarke; Lord Dyson
BACKGROUND TO THE APPEALS
These appeals concern the obligations of insurance companies under various contracts of employers’ liability (“EL”) insurance. In particular, the appeals concern the scope of the insurers’ obligations to indemnify employers against their liabilities towards employees who have contracted mesothelioma following exposure to asbestos.
Mesothelioma has an unusually long gestation period, which can be in excess of 40 years between exposure to asbestos and manifestation of the disease. The insurers maintain that the EL policies only cover
mesothelioma which manifested as a disease at some point during the relevant policy period. In contrast, the employers submit that the insurance policies respond to mesothelioma caused by exposure to asbestos during the relevant policy period but which develops and manifests itself sometime later.
The usual rule in negligence cases is that the claimant must establish on the balance of probabilities that the defendant’s negligence caused his injury or disease. In Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 and Barker v Corus UK Ltd [2006] UKHL 20 the House of Lords developed an exception to this general principle in cases involving mesothelioma caused by exposure to asbestos. The effect of this special rule is that an employer is liable where exposure to asbestos contributed to the risk that the employee would suffer mesothelioma and where the employee in fact develops the disease. The insurers submit that the
special rule in Fairchild/Barker is not applicable when deciding, for the purposes of an EL insurance policy, whether an employee’s mesothelioma was caused by exposure to asbestos during a particular policy year.
At first instance Burton J held that the policies should all be interpreted as having a “causation wording”. He therefore held that the liability “trigger” under the EL policy was when the employee inhaled the
asbestos and not the date when the malignant lesion developed.
A majority of the Court of Appeal (Rix and Stanley Burnton LJJ) upheld the judge in relation to some of the EL insurance policies (particularly those covering disease “contracted” during the relevant insurance
period); however they concluded that other policies (particularly those covering disease “sustained” during the insurance period) responded only on an occurrence or manifestation basis.
These appeals to the Supreme Court raise two issues: (i) On the correct construction of the EL policies, is mesothelioma “sustained” or “contracted” at the moment when the employee is wrongfully exposed to asbestos or at the moment when the disease subsequently manifests in the employee’s body? (ii) Does the special rule in Fairchild/Barker apply when determining whether, for the purposes of the EL policies, an
employee “sustained” or “contracted” mesothelioma during a particular policy period?
JUDGMENT
The Supreme Court dismisses the insurers’ appeal by a 4-1 majority. Read the ruling in full here
www.supremecourt.gov.uk/docs/UKSC_2011_0031_ps.pdf
Here's a good article on how the ruling will affect sufferers not just in the UK but in other countries too
blog.kazanlaw.com/index.php/2011/03/10/major-asbestos-litigation-in-both-u-s-and-uk/
(2) The implications upon victims as a result of the 'LASPO' amendments passed by the House of Lords
The LASPO amendments make justice a bit more accessible for victims and sufferers of "Such sad news"
"I heard of 2 lovely friends who lost their battle with cancer yesterday, Both had fought the disease so hard and both are so inspirational and give me the strength to fight my own illness. My thoughts are with the families of Rob and Margaret. I had the pleasure of meeting them both and could see the courageousness and bravery shining out of them. I am doing the survivors walk today in memory of these 2 wonderful people. Love and strength to both families as they come to terms with the loss of their angels."
Read more victims real life accounts here
mesotheliomaandme.blogspot.co.uk/2011_05_01_archive.html
Here's how "mesothelioma and me" report the LASPO amendments
Asbestos related claims exempt from no win no fee litigation.
Anyone claiming on the no win no fee basis who has an asbestos related disease have today been told their claims won't be affected by the new litigation rules.
"Peers in the House of Lords have voted for sufferers of asbestos-related disease to be exempt from reforms to no win, no fee litigation.
The House of Lords yesterday agreed two amendments to the Legal Aid, Sentencing and Punishment of Offenders bill, allowing claimants continued access to conditional fee agreements.
An amendment for damages claims for respiratory disease arising from industrial exposure to a harmful substance to be exempt from the government’s proposed reforms, was passed by 189 votes to 158. A further amendment, to exempt claimants with a disease, condition or illness resulting from a breach of duty at work, scraped through by five votes.
Under the proposals, claimants would keep 100% of their damages whilst defendants cover their after-the-event insurance premium and lawyer’s success fee.
Crossbencher Lord Alton of Liverpool, who moved the first amendment, explained that without recoverable insurance premiums, these cases would not be able to proceed.
He said: ‘It is simply fallacious to argue that making claimants pay costs will mean that they will shop around for the best deal. Dying asbestos victims have already invested enough, and, given their pitiable condition, it is risible to suggest that they will shop around.
‘Terminally ill and dying people will simply not have the energy, and they have other things on their mind than looking for a lawyer to give them a better rate.’
Plaid Cymru’s Lord Wigley said: ‘The only people who will be squeezed as a result of these changes are those who are already suffering from fatal diseases and their families. That does not sound like justice to me.’
Government minister Lord McNally said it was wrong to create ‘classes of claimants’ in the pursuit of a fairer overall system, and he urged peers to accept LASPO reforms in full.
The Association of Personal Injury Lawyers (APIL) welcomed the amendment but said it does not go far enough.
'This is obviously good news for victims of industrial disease and it is imperative that the government does not overturn these important amendments when the debate returns to the House of Commons,' said Deborah Evans, chief executive of APIL.
'It is still, however, a devastating blow for justice that the same degree of consideration was not given to the proposals for other innocent victims of injury, whose lives may also have been shattered through no fault of their own.'
The amendments, following a series of government defeats on the provision of legal aid last week, will be returned to the House of Commons for further consideration. But the two votes were the only victories for opponents of part 2 of LASPO, which focuses on civil litigation reforms based on the Jackson report of 2010.
Read more here
mesotheliomaandme.blogspot.co.uk/2012/03/asbestos-related-claims-exempt-from-no.html
(3) The two relevant amendments put forward by the Lords which resulted in government being defeated.
The words of Lord Alton who proposed amendment 132AA and won..
"There was no debate about this issue when it was before the House of Commons; there was no Division in the House of Commons. Your Lordships will be doing your job in scrutinising legislation by supporting these amendments this evening, because Members of the House of Commons will now, I think, welcome the opportunity to return to this question. I am told by my noble friend Lady Finlay of Llandaff, whom I spoke to earlier about this, that very small numbers of people other than mesothelioma victims would actually be caught by this amendment. However, if it should be that this is slightly extended from this exceptional group of people who are terminally ill and dying to one or two other groups, let us make this more generic and extend it to people who are terminally ill. That is the difference; that is why I disagree with the noble Lord, Lord McNally, when he says that this would be giving this category of people an advantage over others. This is a group of people who are entitled to an advantage. If you are diagnosed as terminally ill-if you are told that you only have nine months to a year to live-then you are not in the same category as others, and we have to do all we can to help."
The word of Lord McNally who opposed Lord Alton's amendment and lost..
"The Government are determined to see more proportionate costs in civil litigation, with greater fairness in the risk borne by parties. Without our reforms, high and disproportionate costs in civil litigation will continue. Access to justice would not become more meaningful for all parties. If these amendments were accepted, claimants in these particular cases would have an advantage over others who may be suffering from equally debilitating conditions."
Here are the two amendments which the majority of Lords voted for
Amendment 132AA
Moved by Lord Alton of Liverpool
132AA: Before Clause 43, insert the following new Clause-
"Exception in respiratory (industrial disease or illness) cases
The changes made by sections 43, 45 and 46 of this Act do not apply in relation to proceedings which include a claim for damages for respiratory disease or illness (whether or not resulting in death) arising from industrial exposure to harmful substance."
Division on Amendment 132AA
Contents 189; Not-Contents 158.
Amendment 132AA agreed (Government lost) [/b]
Amendment 132AB
Moved by Lord Bach
132AB: Before Clause 43, insert the following new Clause-"Exception for industrial disease cases
The changes made by sections 43, 45 and 46 of this Act do not apply in relation to proceedings which include a claim for damages for a disease, condition or illness (whether or not resulting in death) resulting from any breach of duty owed by an employer to an employee."
Division on Amendment 132AB
Contents 168; Not-Contents 163.
Amendment 132AB agreed (government lost). [/b]
(4) Some points to consider and what you need to do.
(1) Many people think that once the House of Lords vote for an amendment, it will be drafted in to the bill and go on to become law. Lord McNally is on the side of a government which wants to keep LASPO as it is without these amendments.
(2) The House of Commons next debate this on the 17th April and could well go on to overturn the House of Lords, this would have the effect of cancelling out these two key amendments put forward by Lord Alton and Lord Bach.
(3) Lord McNally has argued that Mesothelioma should not be treated as a special case. These two particular amendments are not directly associated with legal aid, but they are part of legal aid, sentencing & punishment of offender's bill (LASPO). He has argued that costs are the real issue & says it is wrong to give sufferers of Mesothelioma an advantage over others.
(4) The Supreme Court ruling shows how insurers rely on the small print; - the Court ruled against them.
(5) Surely what matters above all else is doing all we can to improve access to justice for those who suffer so greatly?
People really need to ask their MP's to keep the amendments & not allow government to overturn them; - you need to act fast as the next debate is the 17th April 2012.
Campaign links
www.asbestossupport.co.uk/
www.thompsonstradeunionlaw.co.uk/about-thompsons/local-campaigns.htm
mesothelioma-advice.co.uk/
www.rjw.co.uk/legal-services/unions-federations-charities/unions-associations/prospect/asbestos-register/roger-lowe-asbestos-mesothelioma-campaign/#axzz1qdnLbqX0
Parliamentary record of the LASPO debate
www.publications.parliament.uk/pa/ld201212/ldhansrd/text/120314-0002.htm
News items
www.epolitix.com/latestnews/article-detail/newsarticle/government-scapegoating-terminally-ill-asbestos-victims/