Lawford Kidd's Blog

New compensation rules are now in place that will enable asbestos-related cancer sufferers to receive up to £54,000.

Under new rules for the Government’s Diffuse Mesothelioma Payment Scheme, compensation will rise to match 100% of average civil claims, up from the current 80% – which could mean an increase of up to £54,000 a person.

Diffuse mesothelioma is a cancer of the lining of internal organs, such as the lungs, and almost always arises from exposure to asbestos. It takes a long time to develop - typically 15 to 40 years – but life expectancy from diagnosis is only between eight and nine months on average.

More than £15 million has been paid out so far in the first seven months of a new compensation scheme for victims of diffuse mesothelioma.

However, the Department for Work and Pensions says there are hundreds more victims who may be eligible for compensation and is calling for them to come forward, estimating that £32 million could be paid out by the end of March 2015.

Diffuse mesothelioma is a cancer of the lining of internal organs, such as the lungs, and almost always arises from exposure to asbestos. Life expectancy from diagnosis is eight to nine months on average.

Two recent cases have marked a distinct increase in the amount of compensatory damages awarded in fatal cases.  

Both cases concerned section 4(3)(b) of the Damages (Scotland) Act 2011, which allows family members to claim damages for distress and anxiety, grief and sorrow, and loss of society and guidance following the death of their loved one.  

In the first case, Margaret Anne Gallagher & Others v SC Cheadle Hulme Ltd & Others, the widower received £80,000 and adult children £35,000. Importantly, a distinction was made between grandchildren - two grandchildren were awarded £35,000 each while the others were awarded £12,000 each, calculated on the basis of the closeness of relationship of the grandchildren with the deceased.  

Scotland has a long, proud industrial history: our shipyards, coal mines and steel works have shaped our nation's economy and society over the years.

Unfortunately for the people of Scotland, much of that industry has gone and left behind a legacy of asbestos-related disease. Even more unfortunate is that the most common asbestos-related disease, mesothelioma, is particularly aggressive, difficult to detect and doesn't receive anywhere near as much research funding or attention as some other types of cancer.

The dangers of asbestos were previously unknown, since effects or symptoms of asbestos-related disease often don't appear until decades after exposure to the deadly dust. As a result, Scotland is now experiencing an asbestos epidemic.

In the recent case of Joseph McCarn and Others v The Secretary of State for Business, Innovation and Skills [2014] CSOH 121, the Court of Session has provided guidance on fatal awards in Scotland.

The children of the late Mr McCarn, who died in 2009, aged 69, from mesothelioma due to asbestos exposure during the course of his employment in the shipbuilding industry raised a claim under section 4(3)(b) of the Damages (Scotland) Act 2011 - which allows for compensation to be awarded to relatives for loss of financial support, distress and anxiety, grief and sorrow, and loss of ‘society and guidance’.

In making the decision, Lord Bannatyne referred to the case of Hamilton v Ferguson Transport, but disagreed with the proposition made in that case that there must be a pattern in jury awards before a judge can attach weight them. Instead, Lord Bannatyne considered the unreported case of Kelly v UCS from 29 July 2012, a decision that was reached using a completely different approach to other recent cases.