Mesothelioma claims: the difference between a living client claim and a fatal claim
Posted on 27th July 2020
We regularly are settling mesothelioma claims within the specialist asbestos team at Hodge Jones & Allen Solicitors. Many of those settlements are for the mesothelioma sufferer but some are for their loved ones left behind after the victim has passed away. There are differences in the settlements of a living client claim and a fatal claim and information about this is set out below.
The details set out below are a general guide only for successful claims where an insurance company is paying the compensation. Your dedicated lawyer will discuss your individual circumstances with you to ensure you recover all that you are entitled to.
Settlement for the mesothelioma sufferer
For a living client, the compensation in a successful mesothelioma claim will typically include the items set out below. The compensation is assessed on the basis of asking:
- What financial loss has been incurred to date and
- What financial loss will be incurred in the future?
- a) Compensation for Pain, Suffering and Loss of Amenity. This is compensation for the mesothelioma condition itself. The amount of compensation will take into account various factors including the person’s age, symptoms caused by the mesothelioma, treatment received and the anticipated loss of life (which is based on expert medical evidence we will obtain).
The compensation is also intended to cover “loss of amenity”. This is typically how the mesothelioma condition affects someone in a non-financial way, on a day to day basis in going about their life and their inability to enjoy hobbies or socialising.
When assessing the amount of compensation someone should receive, reference is made to the Judicial College Guidelines and to the sums awarded by Judges in previous similar cases. The Judicial College Guidelines contain brackets of suggested compensation levels for all types of personal injuries, including asbestos related conditions.
- b) Care and Assistance. Someone who is suffering from mesothelioma will require care and assistance and compensation can be recovered for that help.
The level of care required will be a very individual matter for each client and we always discuss that with our clients to find out what their care needs are. Factors which may affect the amount of compensation recovered will include whether the care is provided by a family member or a professional carer and over what period of time the care is needed.
In addition to care being provided at home, it may be the mesothelioma sufferer receives hospice care. If so, we can also include a claim on behalf of the hospice for the cost of the care provided.
- c) Aids and Appliances. There are many aids and appliances that can make life easier for a mesothelioma sufferer. These can vary from a walking stick, grab rails around the home, an adjustable bed, a mobility scooter or a stair lift. Again, this is a very individual issue that we discuss with each client. For example, someone who lives in a house without a downstairs toilet may require a stair lift to be fitted whereas someone who lives in a bungalow will obviously not require such equipment. As long as the only reason the aids and equipment are required is because of the mesothelioma condition and they are a reasonably incurred expense, the cost will be recoverable.
- d) Services. This is compensation to acknowledge the fact that the mesothelioma sufferer may not be able to do things around the home and garden which they could do before the mesothelioma symptoms developed. This could include housework, decorating, maintenance, repairs, window cleaning and gardening.
- e) Loss of Earnings. If the mesothelioma sufferer is working at the time of diagnosis, they may incur a loss of earnings as a result of absence from work or from being medically retired. Compensation to cover any past and future loss of earnings can be claimed.
- f) Future Income Loss. Unfortunately, the life expectancy of a mesothelioma sufferer will be reduced because of the disease. As such, they will lose out on the benefit of future income such a pensions. Particular calculations are carried out by our specialist asbestos team to calculate the financial loss each client will lose and that then forms part of the compensation.
- g) Miscellaneous Expenses. These can include most expenses as long as they are reasonably incurred and are only incurred as a direct result of the mesothelioma condition. Such expenses could include travel and parking costs in attending for medical appointments, medication, new clothing required perhaps due to weight loss and private medical treatment.
- h) Future Private Medical Treatment. There is currently no cure for mesothelioma but there are treatment options available. Some treatment is available via the NHS but some treatment, such as immunotherapy, is only available to mesothelioma sufferers on a private basis. The costs of such treatment can run into tens of thousands of pounds.
Our specialist mesothelioma lawyers will insist that any settlement for a mesothelioma sufferer will include an agreement by the insurance company paying the compensation that they will cover the cost of private medical treatment the treating doctors may recommend in the future. This gives our clients peace of mind knowing they can access private treatment their doctors believe may help them but which they could perhaps not otherwise afford.
Settlement when the mesothelioma sufferer has passed away
Even though someone has passed away from mesothelioma, a compensation claim can still be pursued.
- The claim in a fatal matter is split into two parts:
- On behalf of the victim’s Estate and
- On behalf of their dependants.
The Estate: A claim on behalf of the Estate will typically include:
- a) Compensation for Pain, Suffering and Loss of Amenity. An assessment is made as to what the mesothelioma victim would have received, using the same considerations mentioned above, and that amount is then paid to the victim’s Estate.
- b) Care and Assistance. Again, an assessment is carried out as to how much compensation would have been paid to the victim for the assistance they required. That amount is then paid to their Estate.
A claim for a hospice can also be included.
- c) Aids and Equipment. Compensation can again be recovered for aids and equipment purchased to help the mesothelioma victim.
- d) Loss of Earnings. Any loss of earnings the mesothelioma victim incurred because of the disease can be claimed.
- e) Miscellaneous Expenses. Similar items to those mentioned above in a living claim can be recovered within a fatal matter. As a general rule, any reasonable expense the mesothelioma victim incurred as a direct result of the asbestos disease can be recovered.
- f) Funeral Expenses. The funeral costs can be claimed as part of the compensation in a fatal matter. There are restrictions on what can be claimed but our specialist team will advise about that.
The items set out below are claims which can be made by those who depended upon the mesothelioma victim, typically their spouse/partner or children. There are strict rules about who is a “dependant” but our expert mesothelioma lawyers deal with this issue every day so will be able to advise you.
- a) Bereavement. This is a set amount of money paid as a bereavement award after someone has passed away. In a mesothelioma claim, it will usually be the husband or wife left behind who receives this.
- b) Loss of Financial Dependency. If someone financially depends upon the mesothelioma victim, they may be entitled to bring a financial dependency claim. This will normally be the partner left behind who used to receive the benefit of part of the mesothelioma victim’s income.
Particular calculations are carried out to assess the correct amount for past and future financial losses. The amount received can vary hugely from one family to another, depending on their income.
- c) Non-Financial Dependency. If someone depended upon the mesothelioma victim to do certain things, typically around the home or garden, they can claim for the cost of that lost benefit.
- d) Loss of Companion. The partner left behind who had the benefit of the mesothelioma victim carrying out work around the home and garden will need to find someone else to do those works now. A claim for the inconvenience of this can be made.
The amount of compensation recovered in a successful mesothelioma claim varies considerably from one case to another because the compensation is assessed on factors which are very specific to the individual or their dependants.
There are differences between the items that can be claimed for a living mesothelioma client and for their Estate/dependants. Sometimes, the amount of compensation received will be similar whether the case settles for the mesothelioma victim or those left behind but in some cases the value could be significantly higher or lower in one claim. Whatever the circumstances, our expert mesothelioma lawyers will always treat every claim individually and will advise accordingly.