2 Mesothelioma: a special case?
9. Mesothelioma is a debilitating, painful and inexorable
disease, and the life expectancy of sufferers following diagnosis
is short, usually between 10 and 24 months.[13]
In 2011 there were 2,291 deaths in Great Britain from mesothelioma,
and the number of cases each year is expected to rise before peaking
towards the end of this decade.[14]
In their evidence to us the Asbestos Victims Support Groups Forum
UK (AVSGF UK) argued that mesothelioma was "the worst ever
occupational-related health disaster: A Very Special Case".[15]
The Government, while acknowledging the tragic nature of the disease,
put forward in its consultation response the counter-argument
that the LASPO reforms already applied to other very serious and
life-changing cases.[16]
In oral evidence Lord Faulks said that mesothelioma cases were
special because of the short life expectancy involved and the
consequent need to avoid delay in dealing with them, but he otherwise
saw no conceptual difference between mesothelioma cases and other
serious personal injury cases.[17]
10. Mesothelioma compensation claims are subject
to a number of specific legislative provisions or litigation processes,
including of course the initial exemption from Part 2 of LASPO.
AVSGF UK in their written evidence enumerated a number of ways
in which the treatment of mesothelioma cases differs from other
personal injury cases, and they also highlighted statements by
the Government and others recognizing the uniqueness of mesothelioma.[18]
Mesothelioma claims are notably subject to a fast-track process
in the courts, involving a specific Practice Direction and a Royal
Courts of Justice specialist fast track list, described by Unison
as "highly successful and efficient".[19]
In addition, under the Compensation Act 2006, claimants in mesothelioma
cases who have had more than one potentially liable employer are
not required to trace them all: a claim for the full amount of
damages need only be brought against one employer, who is then
responsible for tracing other liable employers to obtain contributions
from them. These arrangements do not apply in relation to other
personal injury cases, including those involving other asbestos-induced
diseases.
11. There is little dispute about the factual position
in relation to existing statutory and non-statutory distinctions
between mesothelioma claims and other cases. However, the two
sides of the argument over the commencement of sections 44 and
46 draw different conclusions from this pattern of distinction.
Opponents of the Government's decision, broadly comprising claimant
lawyers and victims' representatives, including trades unions,
conclude that the special treatment accorded to mesothelioma claims
in various other respects strengthens the case for the LASPO exemption
to be maintained. Supporters of the Government's decision, defendant
lawyers and insurers, argue that the various ways in which mesothelioma
claims are already subject to different treatment reduce the force
of the case for maintaining another difference in the form of
the LASPO exemption. Lord Faulks summarised this argument:
most of the hurdles, legally speaking, have been
eroded, quite rightly in most people's view, such as the difficulties
in causation, which were substantial. The recent legislation has
helped in terms of untraced employers. So, sadly, I am afraid
I am still not satisfied that these cases are in a separate category.[20]
We note, however, that the issue of difficulties
in causation is distinct from the issue of untraced employers.
13 Association of Personal Injury Lawyers (MSC0001) Back
14
Mesothelioma in Great Britain 2013, Health and Safety Executive. Back
15 Asbestos
Victims Support Groups Forum UK (MSC0008) Back
16
Reforming mesothelioma claims: The Government response to consultation on proposals to speed up the settlement of mesothelioma claims in England and Wales,
Ministry of Justice, 6 March 2014. Back
17
Qq 79-81 Back
18
Asbestos Victims Support Groups Forum UK, (MSC0008), paras 9-18.
Back
19
Unison (MSC0018) Back
20
Q 80 Back
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