The Importance Of Provisional Damages In Asbestos Disease Claims
Types of settlement
Most compensation claims for a personal injury are settled on a full and final basis. This means the injured person receives compensation for the injury they have sustained, together with the financial losses and expenses caused by the injury, so as to put them back into the same position (as far as possible) as if the injury hadn’t occurred.
A full and final settlement takes into account all the injury consequences that have happened to date and all the actual financial losses and expenses incurred to date, as well as the anticipated injury consequences and financial consequences likely to occur in the future. It is a “full and final” settlement of all likely outcomes of the injury giving rise to the claim.
An alternative basis of settlement is a “provisional damages settlement”. This type of settlement can only be used in particular circumstances but is an option available to certain asbestos disease sufferers and is a settlement we regularly use to settle cases for some of our clients.
A provisional damages settlement is when the sufferer receives compensation for the asbestos disease they currently have, together with the financial expenses incurred as a direct result of that current asbestos disease. However, they also retain the right to return to Court to seek further compensation should specific circumstances occur in the future. In other words, it is not a “full and final” settlement of the consequences of negligent exposure to asbestos dust but it instead leaves the door open for a further claim to be made.
When will a Provisional Damages Settlement be used?
A provisional damages settlement is usually used when the sufferer has a relatively minor asbestos related condition. We know the individual has been exposed to asbestos dust by virtue of the fact they have developed an asbestos condition. However, the past exposure means they have the potential to develop a further asbestos related disease at some point during the rest of their life. If that should happen and if they have settled the minor condition on a provisional damages basis, then the provisional settlement can be re-activated and there will be a Court Order in place confirming key information already proven and agreed between the parties.
Asbestos Related Conditions
There are six recognised asbestos diseases:
- Pleural plaques;
- Asbestos related pleural thickening;
- Asbestos related pleural effusions;
- Asbestos related lung cancer;
Compensation for pleural plaques can only be pursued in very specific circumstances and, in reality, such claims are rare nowadays under English/Welsh law.
Mesothelioma claims are usually settled on a full and final basis.
Compensation claims for asbestos related pleural thickening, asbestos related pleural effusions, asbestosis and some asbestos related lung cancers can potentially be settled on a provisional damages basis.
The legal requirements
It has been specified by the Courts that in order to seek a provisional damages settlement in an asbestos disease claim, there must be more than a “fanciful” chance of a further asbestos disease developing or the current disease significantly worsening. We will always obtain specialist medical evidence that sets out in percentage terms the risks the individual client has of developing another asbestos related disease in the future and the risks of their current asbestos disease worsening.
The Court rules require specific information to be put into a Court Order when a provisional damages settlement is to be made. This includes specifying:
- The new disease or type of deterioration the Court Order is to cover;
- The period within which a further application for compensation can be made for each new disease or type of deterioration.
By way of example, for someone suffering from asbestos related pleural thickening, the “new disease” will often be the development of asbestosis or asbestos related lung cancer or mesothelioma. The “type or deterioration” will typically be a worsening of the existing pleural thickening condition, causing significant further respiratory disability.
The “period within which a further application for compensation can be made” will normally be within the client’s lifetime or within three years of their death.
It is essential that anyone with a minor asbestos related condition settling their compensation claim is protected for all future consequences of being exposed to asbestos dust. A provisional damages Order is not an automatic right and such an Order must be specifically applied for and approved by a Judge. As such, it is very important that a specialist and hugely experienced law firm such as Hodge Jones & Allen is instructed to deal with asbestos disease claims. When we settle your current asbestos related disease claim, we will ensure you are legally protected in relation to the potential future consequences of being exposed to asbestos dust in the past
A further claim
Should a specified new asbestos disease develop or a significant worsening of the current asbestos disease occur as set out in the provisional damages Order wording, then the sufferer can rely on that Court Order and seek further compensation for that new condition or worsening, together with the further financial losses and expenses incurred.
The Court Rules set out very specific requirements as to how a further claim must be made and failure to follow the Rules can lead to the claim being lost. Therefore, it is again essential that someone making a further claim under a provisional damages Order receives legal help from specialist solicitors such as Hodge Jones & Allen.
There is no requirement for the same firm of solicitors who obtained the provisional damages Order to deal with a further claim under a provisional damages Order – the asbestos disease sufferer can therefore instruct our dedicated Asbestos Team at Hodge Jones & Allen to activate any provisional damages Order they have obtained in the past via any other firm of solicitors.
The service we offer in any asbestos related disease claim is at no financial risk to the asbestos disease sufferer or their family.
At Hodge Jones & Allen, we have a dedicated Asbestos Team with many decades of experience between them of dealing with asbestos disease claims, including securing new and activating old provisional damages Orders. We know what to do and what is required, meaning you are in expert hands when you instruct us.