Category Archives: Asbestos Compensation

Mesothelioma Compensation After Death

Asbestos Related Mesothelioma, Lung Cancer, Asbestosis Claims

A Family Guide 2019 for victims of mesothelioma after death and other asbestos related conditions to support those who have lost a loved one following asbestos exposure at work.

Mesothelioma compensation after death guide for families; Often arises when dealing with this asbestos related claims. Death is caused in the is a form of asbestos related lung cancer that is related to the inhalation of asbestos fibres, which once diagnosed, will often result in death in just a few months.Usually a compensation claim is made on behalf of the deceased’s family members by solicitors acting on their behalf through the courts.

The three main causes of death for an asbestos related condition due to work in the United Kingdom are:

  • Mesothelioma
  • Asbestos Related Lung Cancer
  • Asbestosis

The majority of mesothelioma cases affect the lungs.  In cases of asbestos-related lung cancer, the fibers from asbestos become lodged in the lung tissue causing irritation and scarring over time. This irritation and scarring can then also develop into tumors. But in the case of malignant mesothelioma, the asbestos fibers scar and lead to tumors in the lining of the lungs (the mesothelium).

R James Hutcheon Solicitors Experts in dealing with Asbestos Claims

 

Research according to the Health and Safety Government Website concerning asbestos related deaths there were about 2,500 deaths resulting from asbestos-related mesothelioma in 2015. Such deaths are recorded as the inhalation of asbestos fibres that can cause cancer such as mesothelioma, lung cancer, asbestosis and pleural thickening.

The statistics may however be more complex than that suggested when considering lung cancer in particular were exposure to asbestos and smoking collaborate significantly to increase the risk of lung cancer. This then translates into the fact that a lot of cases of lung cancer will result from both smoking and asbestos exposure, rather than by one of these factors.

 

Mesothelioma Asbestos Compensation Amounts After Death

The courts in the UK consider various factors before deciding on the compensation claim payout for an asbestos related disease. The following actors are will be considered.  It must be remembered that every case will be decided on its own particular facts.

Elderly man with lung cancer lying in a hospital bed and coughing
  • The type of asbestos related disease – mesothelioma, lung cancer, asbestosis?
  • The age of the deceased (or living victim). The younger the person the greater the compensation.
  • The length of suffering – the longer the pain and suffering the court will award more damages. In many studies of workers exposed to asbestos, asbestos-fiber Inhalation is currently proven to lead to an increased risk of lung cancer. In general therefore, longer exposure to asbestos puts an individual at higher risk of developing lung cancer. Most medical cases of asbestos-related lung disease in workers occurs at least after 15 years of first asbestos exposure.
  • The courts will take in to account the level of smoking the victim had consumed if lung cancer is diagnosed where there has been exposure to asbestos at work.
  • The average life expectancy for a mesothelioma victim is just 12 -21 months, but some may survive by up to 5 years.

Mesothelioma Compensation for Asbestos Related Disease

As a general guide, the courts will award the compensation to the worker according to the severity of the disease.  The greater the suffering the more compensation will be awarded.  Most compensation is awarded to the severe forms of the disease such as mesothelioma, lung cancer and asbestosis.  Mesothelioma once diagnosed is a death sentence often within months.  Asbestos related lung cancer and asbestosis often take a longer period before it if fatal.  All  asbestos claims including fatal compensation claims are handled by only our experienced GRADE A Solicitors with a minimum of 15 years experience in disease and asbestos related compensation payout claims.

 

Compensation for Asbestos Related Diseases

Mesothelioma Compensation Payouts for Asbestos Deaths UK

  • Mesothelioma, Serious disability leading to premature death; up to £105,000. Please note that some asbestos related lung cancers and asbestosis may also be awarded compensation at this level.
  • Lung cancer, usually older person and fatal, symptoms not generally as painful as mesothelioma; to £86,000.
  • Asbestosis, (pleural thickening of the lungs). Disability, shortness of breath, prolonged coughing, sleep disturbance, restriction of mobility.  The top level award will be for victims where the disease is progressive, showing a significant impact on quality of life; to £95,000.
  • Asbestosis and pleural thickening where Breathlessness, frequent use of inhaler, unable to tolerate smokey environment to £35,000. 

The above figures are for general guidance.  In addition to the above asbestos compensation claims payouts there other heads of damages that expert asbestos solicitor can claim on behalf of the victim and their family.

Asbestos compensation after death – real payouts by the Courts

Below are a selection of real compensation payouts for asbestos claims decided by UK Courts.

McCarn v Secretary of State 2014 [Scottish Case]

Under the Damages (Scotland) Act 2011 s 4(3)(b) close family members of the deceased can claim compensation. In this case the father of the five adult children who were making a claim received £35,000 each for the death of their father who died from mesothelioma caused by exposure to asbestos whilst working for a Ship Building Company.  The damages awarded reflected the fact that their mother had died of cancer earlier and as a result were all particularly close to their father, who as a very fit man before the disease too over.  There is no similar law to compensate victims in England and Wales for bereavement compensation under the Fatal Accidents Act 1976.

Knauer v Ministry of Justice [2014] £642.972.51 (46 years old)

The deceased was only 46 years old when she died of mesothelioma.  She was employed as an administrator at a Dorset. The prison included many old buildings to she was required to go in the course of her job. Many of these buildings contained asbestos which resulted in her untimely death.

The general guidance for asbestos related compensation (see above) at the time the Court was deciding on the amount to be awarded was between £51,500 and £92,500.

In determining the amount, the court reflected on the pain and suffering she had to endure before death. Mesothelioma causing both severe pain and impairment of both function and quality of life. This may be of the pleura (the lung lining) or of the peritoneum (the lining of the abdominal cavity); the latter being typically more painful. There are a large number of factors which will affect the level of award within the bracket. These include but are not limited to duration of pain and suffering, extent and effects of invasive investigations, extent and effects of radical surgery, chemotherapy and radiotherapy, whether the mesothelioma is peritoneal or pleural, the extent to which the tumour has spread to encase the lungs and where other organs become involved causing additional pain and/or breathlessness, the level of the symptoms, domestic circumstances, age, level of activity and previous state of health.”

Asbestos compensation after death awarded was £80,000 (for the injury, pain and suffering only). The full award after death for the asbestos claim was £642,972.51, this award was mainly for the family of the deceased under the Fatal Accidents Act 1976.

Zambarda v Shipbreaking (Queenborough) Ltd. Total Award: £98,723 (75 years)

In this case a very experienced judge decided in 2013, that the pain and suffering of a male worker due to mesothelioma was valued at £75,500 for the suffering he went through before death. He suffered slightly longer in duration compared to Kauer above, (seven months from first symptoms,six months from diagnosis), but he was a lot older, 70 when he died.

The compensation payment was broken down as follows:

Past care and assistance £ 4,406
Past case management £ 3,674
Inability to provide services to others £ 3,656
Miscellaneous expenses £ 750
Bereavement damages £11,907
Funeral expenses £ 3,801
Loss of dependency on Income (past and future) £70,529
Overall total compensation payment: £98,723

Wolff v John Moulds (Kilmarnock) Ltd 2012 – £104,500

In this case it is reported that the deceased died from mesothelioma aged 67 in 2007. The awards made by the Judge in 2011 under section 1(4) of the 1976 Act were as follows:

  • £50,000 to the widow;
  • £15,000 to each of two adult daughters who lived away from home but had regular contact with the deceased;
  • £18,000 to the youngest daughter aged 32 who lived at home and had relied on the deceased to a much greater extent than her siblings; and
  • £6,500 to the granddaughter, on the basis that the bond between a grandchild and grandparent was less strong than the bond between child and parent.
  • Total award asbestos compensation payout £135,000

McGregor v Genco (FC) Ltd [2014] £135,000

A case decided in the Manchester County Court.  The asbestos victim was diagnosed with malignant mesothelioma of the pleura. A claim was brought against her former employer for damages for personal injury, alleging that she had contracted the illness due to asbestos exposure during her the course of employment.

The claimant’s was aged 58, developed she malignant mesothelioma of the pleura. She began suffering with symptoms of mesothelioma in May 2012 with shortness of breath and lethargy and was diagnosed in August. The prognosis was poor.

Total award for the asbestos compensation after death £135,000

International Energy Group Ltd v Zurich Insurance plc UK Branch £250,000

A case that involved death due to exposure to asbestos causing mesothelioma where the employee inhaled asbestos fibers in course of employment over many years.

The employee retired in April 2008, but he did not enjoy a long retirement.  In the same year, July 2008 he was diagnosed as suffering from mesothelioma and he died within about a year from diagnosis.

Before he died his solicitor took legal action for compensation for his asbestos-related condition. he claimed his illness was caused by its negligence and breach of statutory duty in exposing him to asbestos dust and fibres.

The claim was settled for £250,000 plus solicitors legal costs.

Passmore v Evan Cook Ltd 2012 – (£192,437)

The employee contracted mesothelioma, due to exposure to asbestos at work. He was diagnosed in February 2011 by the presence of a large right pleural effusion and pleural plaques, from exposure to asbestos during his employment. He had a life expectancy of six months, with a likely range of three to nine months, from September 2012.

The employee claimed damages for mesothelioma, which he alleged was caused by negligent exposure to asbestos in the course of his employment by the defendant. Between 1961/1962 and 1981, the claimant was employed and responsible for the supervision of the packing, removal and installation of industrial plant and equipment. In 2011, the claimant was diagnosed with mesothelioma.

The claimant’s evidence was that while employed by the defendant, he had been exposed to asbestos dust from the dismantling of pipework from factory equipment.

At court his health had deteriorated and towards the end of the one hour questioning he required morphine as pain control. From time to time he lost concentration. Under cross-examination, some of the claimant’s answers to questions suggested that exposure to asbestos during the relevant period of time could not be demonstrated.

Whilst the defendant submitted to the court that his evidence was unreliable, the Judge dismissed the claims and found in, fact, he was a reliable witness and established to the satisfaction of the court relevant exposure levels and working environment to prove a case. He was truthful and a careful witness and therefore liability was proven against his employers.

Asbestos compensation after death was agreed between the solicitors at £168,000.

Eric Ward, the Widower and Executor of the Estate of Valerie Ward v RWE Npower PLC and Associated Electrical Industries Ltd [2012] £113,000 (80 years old)

The Deceased first experienced symptoms in July 2007 he sadly died in April 2011, shortly after being diagnosed in March 2011. The Deceased contracted mesothelioma as a result of ‘secondary’ exposure. The Deceased washed her husband and son’s overalls, which were covered in asbestos dust and fibres because of their work at the Aberthaw Power Station. Proceedings were issued and the matter settled.

The case was ‘Fast Tracked’ due to her condition under the mesothelioma scheme.  Her family were awarded compensation in the sum of £113,000.

Baker v Tate & Lyle PLC [2012] –  £205,000

The Employee’s symptoms began in January 2011. At the time of the Trial, he was dying of mesothelioma as a result of exposure to asbestos with a life expectancy of 2 to 6 months. He was 65 years old at the time when at court. He was only in his teenage working years when he was exposed to the deadly dust fibers.

The judge found that under Regulation 1 of the Asbestos Industry Regulations 1931 and section 29 (1) of the Factories Act 1961 imposed a duty upon the Defendant as occupier.  The Defendant company did not come up with any evidence to suggest they supplied their employee with effective breathing apparatus and effective mechanical ventilation, so as not to expose the Claimant to asbestos.

As the Defendant failed to provide this evidence, Judgment was entered and the case settled in the sum of £205,000, with £80,000 allowed for general damages (that is for the asbestos related condition alone, pain and suffering).  The additional about of £125,000 was paid in accordance with the Fatal Accidents Act 1976, for the dependents of the deceased.

Ball v Secretary of State for Energy and Climate Change [2012] £73,980/ £58,920.38 (pain and suffering)

Malignant mesothelioma of the pleura was diagnosed.

The employee was alive when the case came to court. Often quite unusual for a mesothelioma case, as often the victim of asbestos exposure has sadly died.

Between 1967 and 1985 the claimant was exposed to asbestos dust in the course of his employment with the National Coal Board. He started to experience chest symptoms in January 2011. His condition deteriorated and he was diagnosed as suffering from a malignant mesothelioma in March 2011.

In September 2011 the claimant’s estimated life expectancy as a result of the malignant mesothelioma was between one to five months.
Facts

In April 2011 a left thoracoscopy was performed to remove the pleural effusion and to relieve the claimant’s breathlessness.

The prognosis was for inevitable deterioration probably with worsening pain, increasing breathlessness, loss of appetite and weight and progressive debility.

It was likely the claimant would become completely incapacitated and in need of constant nursing care towards the end of his life.

Had it not been for the mesothelioma his life expectancy would have been 2.9 years.

Damages for pain suffering and loss of amenity were awarded at £50,000.

Asbestos compensation after death – here the Court awarded damages for lost years were agreed at £19,376 and care and miscellaneous expenses were agreed at a further £4,179.16.

Further reading on asbestos related lung cancers.

Mesothelioma on Wikipedia

Fatal Accidents Act 1976

Fatal Accidents Claims Guide

Compensation Calculator

Dependency Claim

Asbestos Related Deaths in the UK

The fraction of cancer attributable to known risk factors in England, Wales, Scotland, Northern Ireland, and the UK overall in 2015. British Journal of Cancer 2018.

List of Classifications by cancer sites with sufficient or limited evidence in humans, Volumes 1 to 116*.

Continuous Update Project Findings & Reports. Accessed October 2016.

Research into Asbestos Fibres Causing Mesothelioma

Cancer Research UK on Mesothelioma have provided some information on the asbestos mineral likely to cause this condition:

Erionite

A mineral similar to asbestos, as a cause of mesothelioma. Evidence comes almost exclusively from one region in Turkey, where erionite is used as a building material, and mesothelioma rates are extremely high.  Because erionite occurs elsewhere in the world (notably parts of the US) without similarly high mesothelioma rates, it has been argued that the situation in Turkey indicates genetic susceptibility to erionite-associated mesothelioma in this population,[3] however evidence for this is weak.

Mineral Wool and Silica

Occupational exposure to asbestos and other fibres or particles could modify the carcinogenicity of asbestos with regard to pleural mesothelioma – NCBI

The most common types of asbestos fibres are:

Chrysotile (white asbestos).

Amosite (brown asbestos)

Crocidolite (blue asbestos).

Compensation Mesothelioma after Death

Compensation payouts for death following the inhalation of asbestos dust at work is very much after the event symptoms of the disease has a very long latent period, often over 30 years from first being exposed to the deadly dust.

Often, most asbestos victim suffers who seek legal advice are in their 60’s and 70’s.  They are concerned for their loved ones as they are usually a carer for their partner who need support.

No amount of compensation will ever replace the tragic loss, but it will provide some financial support, help pay for bills and expenses and even care for loved ones left behind.

There will also be a sense of justice that someone has paid for the hurt, pain and suffering that has been endured before death.

As specialist asbestos solicitors in this area we will consider all claims for mesothelioma compensation after death sympathetically and expertly.  In fact all asbestos related claims will be considered.

Please contact us now to discuss a possible claim but remember there is a limited period to make a claim which is three years from the date of death or within three  years from when the worker who was exposed to the dust knew that it was related to his/her work place.

 

Fight for dignified death

Fight for dignified death

Whilst we are experts in fatal accident claims there are moments when the law affect other aspects of our lives.  The right to die, has been brought into the court once again when a campaigner who is terminally ill requires the court to determined when he can die with ‘dignity’ rather than being ‘entombed’ by his illness.

Fatal Accident Claim Advice

The High Court will determine the fate of Noel Conway, 67 years of age, a retired lecturer who is suffering from the debilitating motor neuron disease.

It is reported that he has less than one year to live and Mr Conway would like to control his end of life wishes.  When he has less than 6 months to live and has mental capacity to make the decision, he wishes to bring about a ‘peaceful’ death with professional help from doctors.

No medical professional can intentionally accelerate death otherwise, under the Suicide Act 1961, a doctor (or family member/friend) may face up to 14 years imprisonment.

Fatal Accident Claims

Mr Conway requires a declaration that the Suicide Act is incompatible with the Article 8 of the European Convention of Human Rights which relates to respect for private and family life and Article 14, which protects against discrimination.

However the right to die has to be balanced the possibility of family members putting pressure on the patient to end their life.  It is a difficult case.  The Justice Secretary is opposing the case and the trial continues.

Why did the courts get it wrongful over many years? (Part 3)

Why Did The Courts Got It Wrong Over Many Years?

The Ogden Tables were used to compensate future awards of compensation for fatal accident dependents and victims of life changing injuries.  The Ogden Tables use what are called ‘multipliers’ that is a calculation to apply a fixed lump sum award the claimant would received today and ‘discount’ the compensation lump sum due to the fact that the claimant would get the money now rather than piece meal over what can be many years into the future.

In fatal accident claims, however, the Courts in the 1970’s (see case of Cookson v Knowles [1979] in particular where Lord Fraser stated:

‘In a personal injury case, if the injured person has survived until the date of trial, that is a known fact…But in a fatal accident case, the multiplier must be selected once and for all as at the date of death because everything that might have happened to the deceased after that date remains uncertain…’

Fatal Accident Claim Advice

Thus to calculate the future compensation for dependants from the date of death rather than the date of trial (which happens as a matter of routine in life changing injury claims) has the effect of under-compensating the dependants of the deceased.  Why?  This is because the Odgen Tables used to calculate the future awards were designed to calculate the ‘multiplier’ from the date of trial not the date of death.

So if there is a long delay between the date of death and date of trial or settlement this will lead to injustice and under-compensation to the dependents.  This has been a known fact for many years but the Courts have done nothing about it until the decision in Knauer v MOJ 2016.  The mis-use by the Courts of the Ogden Tables was considered in White v ESAB Group (UK) Ltd [2012] and Aths v Ms [2002] EWCA Civ 972 and criticised in Corbett v Braking HA [1991].

Just one good fatal accident decision in many years has taken place where the Supreme Court in the case of Knauer v MOJ 2016 decided to change the law so that the multiplier must run from the date of trial, not the date of death.  This can add thousands of pounds for bereaved families who have been under-compensated and let down the the Government and the Judiciary.

[Author Ronnie Hutcheon – fatal accident claim specialist – Principal Solicitor in the Firm of R James Hutcheon Solicitors]

But the Courts thought they were bound by the past judgement and thus the law could not be changed without the Government changing the law.

Even the Law Commission Report entitled Claims for Wrongful Death suggested to the Government that the law should be changed (among other issues) so that compensation for fatal accident claims for future awards should be used the same way as lift changing injury claim, that is The Ogden Tables for future awards for compensation should be from the date of trial not the date of death.

Fatal Injury Law Commission Report – [Click to View]

Common sense has played a part here with practical know how of the change in times but lest not forget the injustice to victims in the past whose fatal accident claims have been vastly under compensated by the slow changing pace of the Judiciary and the constant strength and lobbing of Government by insurance companies who  continue to influence the Government.  The losers are the victims.  Help us change the law and sign our Government E-Petition on bereavement awards.

Further reading

Fatal Accident Compensation – Calculate Future Awards (Part 1)

Fatal Accident Compensation – Calculate Future Awards (Part 2)

Fatal Accident Compensation – Calculate Future Awards (Part 3)

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Fatal Accident Compensation – Calculate Future Awards (Part 2)

Fatal Accident Compensation – Calculate Future Award (Part 2)

In Part 1 fatal accident solicitors considered the general complex issues of how calculating future awards for lump sum compensation for a fatal accident or fatal disease can be complex.  Needless to say, once again, as fatal accident solicitors specialising in this area in addition to serious life changing injury claims, the future calculation for compensation leaves the victims, in our view under compensated.

Fatal Accident Claims and Probate

Why?  It is all down to how the large discount is applied to future lump sum compensation awards for a fatal accident or serious life changing injuries.  The discount applied applies on the award of the compensation so as not to ‘over compensate’ the dependents or victim of a life changing injury claim.  Thus to use an similar example, if the dependents or personal injury victim sustaining serious injury claim is valued at say £100,000 over a period of 10 years, if that amount was put into stocks and shares over a period of 10 years, there is a chance that the investment will grow over time and thus the net value would be more than the £100,000.  This is unfair and has been attacked as the returns may not be significant or at all as there is a chance there could be heavy losses.

‘Victims and families whose loved one have been killed in a fatal accident or sustained a serious life changing injury have been under compensated for years…’ 

[Author Ronnie Hutcheon, Principal Solicitor of R James Hutcheon Solicitors]

Fatal Injury Bereavement Award

Thus the dependents compensation for a fatal accident or the victim of a serious life changing injury claim are being under-compensated and have been over many years.  Further the Conservative Government has also since April 2013 not only reduced solicitor costs if they win a compensation claim for fatal accident or injury but now solicitors are forced to take up to 25% of the victim’s compensation award.  Thus to say that the aim of compensation is to put the claimant victim in the same financial position but for the death or accident is a misnomer.

Uee of the Ogden Table To Compensate Fatal Accident Claimants

The Ogden Tables are used by fatal accident solicitor and personal injury solicitor who specialise in life changing injuries where the future awards of compensation have to be considered.  Here we will discuss only fatal accident compensation claims due to the recent important case of Knauer v MOJ by the Supreme Court in 2016 increased compenstion following the unalwful killing of a person in an accident by just using the Ogden Tables in the way they were intended.  Had the Courts used the Tables correctly it would have stopped thousands of bereaved families whose fatal accident compensation claims were settled by their Solicitor or the Courts over many years.

See Also

Fatal Accident Compensation – Calculate Future Awards (Part 1)

Fatal Accident Compensation – Calculate Future Awards (Part 2)

Fatal Accident Compensation – Calculate Future Awards (Part 3)

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Fatal Accidents Claims & Grant of Probate

Fatal Accidents Claims & Grant of Probate

Fatal Accident Claims and Probate


Introduction


The law relating to a Grant of Probate following the death of a loved one in a fatal accident at work or fatal road accident can be found in the Fatal Accidents Act 1976.

It is an archaic piece of legislation, in our view that is in desperate need of updating. The law is unjust and unfair and does not take into account modern family living. The law as it stands primarily under the Fatal Accidents Act 1976, protects insurance companies who are duty bound to pay reasonable compensation but instead the Conservative Government intends to make it difficult for bereaved families to gain access to justice by increasing court fees, cutting fatal accident solicitors costs and making bereaved families pay up to 25% of their compensation to the solicitors. At a time of need, the law lets down bereaved families.

There are two types of people who will apply for the Grant of probate (if one is required in a fatal accident act claim) but before we consider this, it is necessary at this stage just to explain what a Grant of Probate is, in simple terms.

What is a Grant of Probate?

A Grant of Probate is simply a formal document issued by the Court to enable (usually the next of kin) to deal with the financial affairs of the deceased. It ‘grants’ them authority to deal with the sale of assets such as the house, get access to bank accounts etc. The Grant informs the Court who the beneficiaries are and those entitled under the deceased estate.


Did the Deceased Leave A Will?


The beneficiaries of the deceased estate (usually the ‘next of kin’) will be set out in any Will the deceased may have left. The application for the Grant will then have a copy of the will attached to the Court documents to confirm the deceased wishes and who will benefit from the deceased estate. The person(s) who then have authority to deal with the deceased estate under the Grant are called ‘executors.’

If there is no will, those person(s) entitled will be followed by a strict laws of ‘intestacy’ again this is most commonly known as the ‘next of kin.’ Thus if a husband dies, the Wife will be the next person entitled to the late husband’s estate. Another example is that if a single parent dies, the parent’s estate will then belong to the child(ren). A person(s) who then applies for the Grant is called the ‘administrator.’ If a child is the next of kin, (a child in law is a person under the age of 18 years) then an adult can be appointed to act of the child’s behalf.

Timing of obtaining the Grant of Probate


The Fatal Accidents Act 1976, provides that an executor (if there is a will) or administrator (if there is no will) should apply within 6 months from the date of death.* If no application is made, then a dependent of the deceased can apply and issue court proceedings. A dependent is usually, again, the next of kin of the deceased.

*Section 2 of the Fatal Accidents Act 1976

Do You Need To Apply For A Grant Of Probate Following A Fatal Accident Claim?

If Death was instantaneous – no compensation:-

A dependant making a claim under the Fatal Accidents Act 1976 cannot recover any losses or expenses priory to death. If death or for the any pain and suffering of the deceased prior to death. Thus if the fatal accident was such that death was immediate or virtually instantaneous the Fatal Accidents Act 1976 does not make any provision for compensation. This is so even if the deceased was in a coma before death. To us, the fatal accident claim solicitors this is just another unjust element of the law that needs changing. A life, the quality of life of the deceased and the traumatic experience of family and friends are all affected.

If Death was not instantaneous – compensation payable: –

If death was not instantaneous for instance there there was a period of pain and suffering prior to death such as suffering from an asbestos related condition, a claim can be brought under the Law Reform (Miscellaneous Provisions) Act 1934. As compensation payable is for the pain and suffering of the deceased, it means that this will form part of the deceased ‘estate’ and thus forms part of the deceased ‘assets,’ just like a house, investments and money in a bank account. In this case, the fatal accident claim solicitors will need to apply under the 1934 Act to obtain the Grand of Probate or Letters of Administration (if there is no will).

Funeral Expenses – These can be claimed under the 1934 Act or under the Fatal Accidents Act 1976 under section 3(5). If both Acts are being pursued by the fatal injury solicitors, then double recovery is not allowed.

 

Can the Costs of The Grant of Probate Be Recovered As Compensation?

 

Once again, an unfortunate fatal accident decision against bereaved families can be found in the case of Mosson v Spousal (London) Ltd (2015) EWHC 53 (QB) where the High Court was of the view that the cost of probate under the 1934 Act does not make any provision to recover those expenses. It was discussed that in many instances there may be other reasons to obtain a Grant of Probate other than taking court action (this is an unjust comment in our view as had it not been for the fatal injury, probate would not have been required in any event). Further, in fatal accident claims where the compensation is relatively low to the estate (that is where the death was not instantaneous but there was only a limited period of pain and suffering) the costs of obtaining the Grant of Probate plus solicitors costs and the increase in court fees, the probate costs may be disproportion and not financially worth pursuing. Once again an unjust area of the law when one considers fatal accident claims.

Thus a death with a few hours to a few weeks of pain and suffering following the fatal accident only attracts a few hundred to a few thousand pounds. It is not enough and this area of the law will have to change in so far as the compensation award. But to add insult to the bereaved families, the limited amount of fatal accident compensation payable for the suffering prior to death may not be financial worth pursuing due to the fact that the family will have to apply for probate to recover the compensation under the 1934 Act and such fees are not recoverable according to the judge in Mosson. It is hoped that this judgement is overturned by another Judge or Higher Court.

Cost of Applying for Probate

The Conservative Government has dramatically curtailed access to justice for personal injury claims that include a claim for a fatal injury. The Government has cut the costs that solicitors can charge the guilty party if they win the case making it difficult to undertake all necessary work without cost penalties. In addition, fatal accident solicitors now are forced to take a cut of the bereaved families compensation due to the restriction of costs.

In addition to the cost cutting exercise designed to save insurance companies money (but leaving devastated families out of pocket) the Conservative Government has also drastically increased the court fees bereaved families have to pay for a Grant of Probate.

Thus as at 2015 and at the time of writing 2016, the fee for the Grant of Probate are as follows:

• If an fatal accident claim solicitor is instructed, the Grant will cost £155 (increased from £45).
• A family member applying, the fee will is £155 plus a personal application fee of £60 making a total of £215.
• Additional formal copies of the Grant (you will usually need multiple copies to provide to the mortgage company, banks and building societies etc) there is a copying fee if applied for at the time of the grant of 50p.

Affected by this Article?

If you would like to obtain more information, require advice from specialist fatal accident claim solicitor please contact us.

Even if you are not directly affected, a family member or friend of those who you are concerned about, why not call us and see if we can help.

We are here to support bereaved families and we work under a no win, no fee, solicitor service so there is nothing to worry about if the case fails.

 

 

 

 

 

 

Fatal Injury & Funeral Expenses

Fatal Injury & Funeral Expenses

In this fatal injury claim, (under The Fatal Accidents Act 1976) where funeral expenses (amongst other losses) were considered following the death at work due to exposure to asbestos dust, the employee unfortunately contracting the disease ‘malignant mesothelioma.’

The High Court in London in the case of Mosson considered the arguments by both the claimant and defendant solicitors on what funeral expenses can be recovered following a fatal injury and in this case a death caused at work.

Fatal Accidents Claims - The Law

 

  • Cost of Probate

Probate is the legal procedure required to prove who is the person(s) responsible for formally dealing with the affairs of the deceased.  Usually, in practice this is the deceased next of kin, i.e. wife, husband, parter, etc.  If the deceased leaves a will, the person responsible will be named in the will, again this is usually the next of kin.  If no will has been made, the rules of ‘intestacy’ apply, and again it is the ‘next of kin.’

When the person responsible for the deceased affairs has been established the fatal injury solicitor will then send the relevant forms to the Probate Court to obtain the official court approval for that responsible person to instruct the fatal accident solicitors and deal with all the financial affairs of the deceased including make a claim.   There will be a cost involved in obtaining probate and a court fee – called Probate fees.

In the Mosson case probate fees where considered and argued by solicitors in court to establish if the Widow can recover these costs against the insurance company or if she out of her late husband’s estate had to pay them.  Now most people will say it is only fair that the company that killed her husband at work should pay these costs but insurance companies don’t want to pay out any compensation if they can get away with it, notwithstanding the tragic death and suffering all the family had to ensure.

Here the Judge in the case said that the probate fees are NOT RECOVERABLE because no such provision was catered for in the 1934 Law Reform (Miscellaneous Provisions) Act that concerned items that can be recovered following a fatal accident.

  • Funeral Clothing, Wake & Memorial Bench

Here following an earlier decision in the cases of Knauer v Ministry of Justice [2014] EWHC 2553 (QB) and Gammell v Wilson [1982] AC 27.  The Court’s decision are on the basis that all funeral expenses had to be ‘reasonable in all the circumstances’ and thus not ‘reasonable’ to purchase a memorial bench or for one off clothing for a funeral.  The latter in particular followed the case of Gammell.  The latter Court case distinguished between funeral clothing purchases and a ‘grave marker’ which we all know it to be a “headstone’ which a reasonable expense under the ‘funeral expenses’ head of claim providing the cost, again meets the reasonable test.

  • Loss of ‘Love and Affection’ intangible services

    Over quite recent times in fatal injury claims, solicitors have been arguing that whilst the family can be compensated for the loss of DIY and gardening services that the deceased may have provided to the family and now have to rely upon outside contractors, there is also quite a nominal loss for the inconvenience of the family now having to instruct outside contractors to do the work.

The family will have to make arrangements and work around the contractor whereas if the say, husband or wife provided such services they can undertake the work at their own pace and convenience.

The law calls this head of loss under (not a funeral expense but I have put this here for completeness due to the importance of this claim) ‘loss of intangible benefits.”  The judge had considered this loss and in other cases, a sum of £3,000 was make.

However the judge in this case considered that no such compensation could be paid as this was covered under the ‘bereavement damages award.’

This is once again another ‘hard case’ against bereaved families.  As fatal accident solicitor we wish to change the law on bereavement awards and for more information please see our webpage, bereavement awards – change the law.

Need advice on Fatal Injury Compensation claims?

Please contact the fatal injury compensation solicitor for expert advice and assistance in this difficult time for the family left behind.  As can be seen from this short blog, insurance companies will argue over the smallest of items that can be claimed so you need a fatal injury solicitor to help you every step of the way from the compensation and expenses to all the legal requirements. Contact us now:

Contact Fatal Accident Solicitors

 

 

Malignant Mesothelioma £85,000

Widow Received £85,000 – Asbestos Compensation Claims

In this tragic case of death from asbestos related malignant mesothelioma Mr Thomas contracted this horrible disease whilst at work.

There are a number of compensation elements that were considered by the court to compensate the Widow and family which can be listed below:

i) Contributory negligence;

ii) Damages for pain, suffering and loss of amenity;

iii) Funeral expenses;

iv) The cost of probate;

v) Loss of earnings during life;

vi) Bereavement;

vii) Future loss of income dependency;

viii) Loss of intangible benefits;

ix) Services dependency.

There are two specific points we wish to raise about this claim for asbestos related compensation at work.

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The Claim for Bereavement  Compensation

In all cases where a death occurs at work, this will be governed under the Fatal Accidents Act 1976 and the Law Reform Act (Miscellaneous Provisions) Act 1934.

A bereavement compensation award is where close family members who have lost a loved one in a fatal accident at work (that includes and “industrial disease” such as exposure to asbestos).

The current amount for a bereavement award is a poultry £12,980; to help us change the law please visit our bereavement compensation award webpage and sign our E-Petition.

Compensation for the Death – £85,000

This is another part of the law we would like to change but this will be harder than the bereavement award as it will mean a wholesale amendment to personal injury compensation awards across the board.

Having said that, there is an argument that this will not be necessary as the death of an innocent person killed at work or in a road traffic accident, for instance, is distinct from all other awards of compensation for pain and injury.

In this case Mr Thomas Mosson who suffered from malignant mesothelioma for quite a long time, some 26 months.  Now here the Judge in the case had to hear evidence from the Widow on how Mr Thomas suffered.

Mrs Mosson looked after her husband “like a child”. She said it was so difficult for her to see a man who had done so much, “descend into this thing”; he was “no longer my husband”. She also described how she applied for and paid for probate after his death because she thought she needed it to proceed with these proceedings.

Mosson v Spousal (London) Ltd

There was then an argument on how much compensation the pain and suffering was worth to his Widow.  Here is an extract of the judgement where arguments were held by Defendant Barristers and Claimant Barristers.

    1. was referred by both counsel to the Judicial College Guidelines which give the bracket for mesothelioma cases of £53,200 to £95,700. I was also taken to a number of reported decisions including:

i) Beesley v New Century Group Ltd [2008] EWHC 3033 (QB) Hamblen J;ii) Fleet v Fleet [2009] EWHC 3166 (QB) Mackay J;

iii) Najib v John Laing Plc [2011] EWHC 1016 (QB) Nicola Davies J;

iv) Zambarda v Shipbreaking (Queenborough Ltd) [2013] EWHC 2263, Kemp on Lawtel, Mr John Leighton-Williams QC sitting as deputy High Court Judge;

v) Knauer v Ministry of Justice [2014] EWHC 2553; [2014] All ER (D) 250;

vi) Ghoorah v West Essex Clinical Commission Group [Lawtel, 5 December 2014] HHJ Allan Gore QC, sitting as a deputy High Court Judge.

  1. Mr Steinberg submits that the appropriate award of general damages for pain, suffering and loss of amenity is £95,000; Mr Boyle suggests an award of up to £75,000 would be justified.

The judge after considering the pain and suffering testified by the Claimant’s widow and the legal representatives at court took the view that the compensation for the malignant mesothelioma was not worth the upper bracket of £95,000 but only £85,000.

Therefore such award for the death is worth, say:

BMW M 4 Convertible with a few extras (basic price £61,150)

BMW M5 But only with a few extras (basic price £73,970)

The death that also includes the pain and suffering before Mr Mosson died are included in the compensation award.

Having said that if you look at our webpage Fatal Accidents Act 1976 – Law Is Unjust  you can see that even here, due to the Conservative Government legal cut back and protecting insurance companies rather than victims of a fatal accident, the bereaved families will not even receive this as solicitors are forced to take a percentage of the compensation up to 25%.

Thus if 25% or a quarter of the compensation was paid to the fatal accident solicitors the amount left to the Widow would be £63,750.  This will get you a lesser BMW such as:

M3 BMW (basic price £56,995)

M4 Coupe (basic price £57,055)

M4 Convertible (basic price £61,150)

 

Totally unjust.

Sign our E-Petition to begin to change the law in fatal accident claims, click on the broken heart below.

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Fatal Injury Claims & Funeral Expenses

Fatal Injury Claims & Funeral Expenses

In this fatal injury claim, (under The Fatal Accidents Act 1976) where funeral expenses (amongst other losses) were considered following the death of at work, due to exposure to asbestos dust, the employee contracting the fall disease malignant mesothelioma.

The High Court in London in the case of Mosson considered the arguments by both the claimant and defendant solicitors on what funeral expenses can be recovered following a fatal injury and in this case a death caused at work.

Fatal Accidents Claims – The Law

  • Cost of Probate

Probate is the legal procedure required to prove who is the person(s) responsible for formally dealing with the affairs of the deceased. Usually, in practice this is the deceased next of kin, i.e. wife, husband, parter, etc. If the deceased leaves a will, the person responsible will be named in the will, again this is usually the next of kin. If no will has been made, the rules of ‘intestacy’ apply, and again it is the ‘next of kin.’

When the person responsible for the deceased affairs has been established the fatal injury solicitor will then send the relevant forms to the Probate Court to obtain the official court approval for that responsible person to instruct the fatal accident solicitors and deal with all the financial affairs of the deceased including make a claim. There will be a cost involved in obtaining probate and a court fee – called Probate fees.

In the Mosson case probate fees where considered and argued by solicitors in court to establish if the Widow can recover these costs against the insurance company or if she out of her late husband’s estate had to pay them. Now most people will say it is only fair that the company that killed her husband at work should pay these costs but insurance companies don’t want to pay out any compensation if they can get away with it, notwithstanding the tragic death and suffering all the family had to ensure.

Here the Judge in the case said that the probate fees are NOT RECOVERABLE because no such provision was catered for in the 1934 Law Reform (Miscellaneous Provisions) Act that concerned items that can be recovered following a fatal accident.

  • Funeral Clothing, Wake & Memorial Bench

Here following an earlier decision in the cases of Knauer v Ministry of Justice [2014] EWHC 2553 (QB) and Gammell v Wilson [1982] AC 27. The Court’s decision are on the basis that all funeral expenses had to be ‘reasonable in all the circumstances’ and thus not ‘reasonable’ to purchase a memorial bench or for one off clothing for a funeral. The latter in particular followed the case of Gammell. The latter Court case distinguished between funeral clothing purchases and a ‘grave marker’ which we all know it to be a “headstone’ which a reasonable expense under the ‘funeral expenses’ head of claim providing the cost, again meets the reasonable test.

Loss of ‘Love and Affection’ intangible services

Over quite recent times in fatal injury claims, solicitors have been arguing that whilst the family can be compensated for the loss of DIY and gardening services that the deceased may have provided to the family and now have to rely upon outside contractors, there is also quite a nominal loss for the inconvenience of the family now having to instruct outside contractors to do the work.

The family will have to make arrangements and work around the contractor whereas if the say, husband or wife provided such services they can undertake the work at their own pace and convenience.

The law calls this head of loss under (not a funeral expense but I have put this here for completeness due to the importance of this claim) ‘loss of intangible benefits.” The judge had considered this loss and in other cases, a sum of £3,000 was make.

However the judge in this case considered that no such compensation could be paid as this was covered under the ‘bereavement damages award‘.

This is once again another ‘hard case’ against bereaved families. As fatal accident solicitor we wish to change the law on bereavement awards and for more information please see our webpage, bereavement awards – change the law.

Need advice on Fatal Injury Compensation claims?

Please contact the fatal injury compensation solicitor for expert advice and assistance in this difficult time for the family left behind. As can be seen from this short blog, insurance companies will argue over the smallest of items that can be claimed so you need a fatal injury solicitor to help you every step of the way from the compensation and expenses to all the legal requirements. Contact us now:

Contact Fatal Accident Solicitors

Contact Fatal Accident Solicitors

Insult To Widow – Malignant Mesothelioma only £85,000

Mesothelioma – Compensation for Death £85,000

In a recent case there were arguments about how painful a man suffered from mesothelioma (a disease where there is no cure – contracted by asbestos exposure).

These unsavory arguments are a further insult to bereaved families to gain some comfort of compensation to the unlawful killing of a loved one.

No amount of compensation for fatal injury can ever be enough.  We all get it but to make widow come to court to explain the pain and suffering and for then Solicitors and Barristers to argue over what such suffering is worth is unjust.  There must be a better way to stop insurance companies arguing over such trivial amounts of compensation when one considers what the deceased has been though and the suffering from the families.

Compensation for Fatal Accident

We tend to live in an age where privacy for celebrities are paramount (in some cases justified) and to award such important celebrities they are often ordered six figure sums to compensate them for “hurt feelings.”  Fatal accident solicitors are not saying that such compensation figures are wrong, but the law is unjust when you compare such money awards to claims involving fatal accidents.

The Bereavement Award

As fatal accident solicitors we have already set up a webpage to fight the injustice here and for more information on the inequities of the law for bereaved families please see our webpage ‘bereavement awards‘.

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Long Suffering Death Worth £85,000 to Widow

The law is an insult to victims and loved ones left behind when it comes to compensating those who need it most to carry on with their life. We all know money will never be enough following the death of a loved one, but the award by the Court which should reflect what is just and mirror our caring society is barbaric.

In this recent case, the Mr Thomas Mosson died, after a prolonged illness, of malignant mesothelioma contracted during the course of his employment.  Anyone who knows about death following exposure to asbestos dust will understand that it is a very painful and progressive death.  In this case the following was said about the disease and how he suffered:

    1. The chemotherapy was particularly unpleasant causing the deceased nausea, vomiting, fatigue, peripheral neuropathy and tinnitus. His condition steadily declined and he died on 19 January 2014. But for this illness it is said that he would have lived for a further 12 years.

    2. Mr Steinberg, for the claimant, puts the effect of this illness in graphic terms in his skeleton argument. He says:

“This was a devastating illness – Mr Mosson suffered terribly – made exceptional by the unusually long period of suffering (i.e. 26 months).”

See full case Mosson v Spousal (London) Ltd

It is hard to believe in this so called “compensation culture” that Mr Thomas’ widow was only awarded £85,000.  She suffered and her family suffered, seeing this once proud man decay and depreciate before her eyes and suffer beyond imagination.  Just £85,000 how on earth is this justified?

Yes no amount of money can ever compensation, we get it, but to offer this amount is an insult and unjust.  But it is happening every day in England and Wales.  Large insurance companies are strong enough to lobby the Government and have deep pockets to defend and challenge fatal accident claims by some of the best Counsel and Magic Circle Solicitors in the business.

Justice is not on a a level playing field, no equality of arms (if there ever was one). The Government had now introduced fixed fees to Claimant’s solicitors and due to the cost cutting exercise, forcing the Claimant Solicitor to take up to 25% of the Compensation awarded to Widows and other members of the family who have lost a loved one.

So to add more insult to injury to the bereaved families, after winning the case, if settled after the cost cutting Conservative Government*, the Claimant solicitors will then have to bill the Widow and for services rendered:-

Here £84,000 – 25% (Solicitors Fees) = £21,250: 

Widow Receives Only £63,750*

*If the case was brought after April 2013 when the Conservative Government attacked Claimant Solicitors Costs and thus were forced to charged injured clients 25% of their compensation.  Please note by instructing R James Hutcheon Solicitors, our charging fees are currently capped at 12.5% not 25%.

Help Us Change The Law on Fatal Accidents

The starting point is signing our Government E-Petition on Bereavement Awards.  If we obtain can change the law here, we will be on our way for a root and branch change.

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Sign the Petition now, thank you.

All at Fatal Accident Claim Solicitors.

 

 

 

Compensation for “Wrongful Death” Increased!

Courts have got compensation awards for bereaved families wrong for years.

In the Supreme Court (Formerly House of Lords) the UK’s highest Court in the land, has made a landmark decision that means more compensation for the wrongful death of victims who have died due to the fault of another, such as:

What has there been a change in the law for fatal accidents?

Fatal Accidents Claims - The Law

The Supreme Court Law Lord led by Lord Neuberger, had considered all the arguments from the insurers for the Defendant and the bereaved family regarding the old laws which had governed how dependent families compensation award would be calculated due to the wrongful death of a loved one.

The Judges, after considering at length the awards made to these unfortunate families were of the view the calculations for fatal accident compensation awards were out-dated and needed to be re-considered in today’s more sophisticated times, which are much more different when the rules for compensation were first considered by the Courts.

The panel of judges, headed by Supreme Court president  ruled there was “an overwhelming case for changing the law” relating to the way financial losses of dependents are assessed.

High Court Judgement in 2014

The Supreme Court considered the previous judgement that was successfully appealed which awarded the bereaved family a lump sum award of £647,840 after making a claim for future loss of dependency under the Fatal Accidents Act 1976.  Mrs Knauer, who was a mother of 3 contracted the fatal disease mesothelioma in 2009 when, during the course of her employment with the Ministry of Justice (MOJ) at Guys Marsh Prison,

The fatal accident solicitors said, following the victory at Court:

“In future, multipliers which are used to calculate the compensation amount will be calculated from the date of trial, not the date of death.

” It will mean that all claimants will receive greater sums to compensate for loss of income and services.”

The Change in Calculations for future dependency awards for fatal accidents

This can be a little complicated but in simple terms the following calculations are that the Court must try, if at all possible, to compensate the victims (dependents) of the deceased to the extent that they have suffered “no financial loss.”  Naturally the compensation can never replace the loss of a loved one (but see bereavement award which we consider should also be changed).

What use to happen is that the Courts would find a value per year of what the financial loss would had been but for the accident, say £20,000.  This loss can be the deceased loss of earnings or other income.  It may include loss of a mother’s services, so need not be money alone.

This loss is called the “multiplicand.”

The next stage would be for the Courts to use the multiplicand and then calculate this figure for a future award to provide compensation for the future.  There will be various factors that the court will utilise to come up with a future award.  Thus in a simple example where the husband has died leaving a wife and dependent children, the courts will look at the ages of all concerned and divide the multiplicand between them over a period of years.  Here, for example the children’s dependency may cease when they reach the age of 21 years (now adult children) but the Wife’s (Widow’s) dependency could be life-long or at least until the deceased husband’s earnings would stop i.e. at retirement age.

This loss is called the “multiplier.”

The future compensation award is thus multiplicand x multiplier (number of future years following death)

The important word in the above statement is “death” because that is where the future calculations starts.  However this calculation will be different from the date of trial.  Using the latter date will mean that the compensation figure can be much greater particularly where it takes a long time for the solicitors to bring a case to court.  The Case is to complemented.

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