The scandal surrounding asbestos found in UK schools continues to build up steam as a government advisory committee has said that children are more likely to develop asbestos related diseases over the course of their lifetime than adults. The increased likelihood of developing diseases like mesothelioma stems from the fact that children will typically live longer and therefore have longer to develop symptoms. Mesothelioma and other asbestos related diseases can take 40 years or more to fully develop.
In February 2008 an ITN report found that a System Built School contained materials made from asbestos. The same report also highlighted the fact that many other schools across the country could have similar problems and that children were being exposed to the potential dangers of the material on a daily basis while in their classrooms. October 2008 saw a BBC report with similar findings and, since then, a number of cases have been highlighted.
Most recently, a Freedom of Information request made to Warrington Borough Council unearthed the fact that 80% of schools in the Warrington area contained asbestos. Of 90 schools in the region, 72 of them were found to contain the deadly material.
The naturally occurring mineral was used as a cheap and beneficial building material between the 1950s and the year 2000 even following evidence that it could be potentially very dangerous. Companies were stopped from using the material and laws and guidelines put in place for the proper and safe management of the material. However, asbestos is still commonly found in many locations including homes, offices, garages, and schools.
It is argued that asbestos is safe when it is in good condition. It is the spores and the fibre of the material that get into and damage the lungs and lining of the lungs. However, as the condition of schools and other buildings deteriorate it is possible that the asbestos will be disturbed and the dangerous material released into the breathable atmosphere. Not only would this put teachers and staff at risk but children attending the schools could be put in danger of contracting any of a number of potentially deadly asbestos related diseases.
Asbestosis and mesothelioma are among two of the diseases commonly associated with exposure to asbestos spores. These diseases can take 20 to 40 years or more to fully develop and this means that somebody exposed at the age of 50 or 60 would be a lot less likely to suffer from the diseases than somebody exposed at a younger age. The findings of the government committee not only mirror this but take it one step further.
Campaigners have lobbied for asbestos to be removed from all schools but the government continues to deny that this is necessary, stating that schools in a good condition do not pose a risk. They say, in fact, that removal of the asbestos may cause a greater risk than carefully and properly managing the building and its use of asbestos related materials.
The Shadow Justice Minister Andy Slaughter has given a huge hint that his party, Labour, would some aspects of the Jackson reforms if they were to regain power at the next general election. He called the decision to make so many changes at once “foolhardy” and the former barrister also said that it was too soon to judge the success, or otherwise, of the civil rights reforms. Once pressed, Slaughter said that his party would unwind some of the changes if they were found to be failing.
On the 1st April there were sweeping changes to the personal injury industry and the way in which consumers are able to make claims and pay for the resulting court cases. In particular, the changes mean that solicitor fees can no longer be claimed from the losing party. Instead, solicitors will claim the money they are owed for their services from the successful party. A 10% increase in claim values was implemented in a bid to cover these costs.
No win no fee cases are commonplace and they enable anybody to be able to pursue a case, even if they do not have the money to cover the cost of legal services. Solicitors are unlikely to take on a case they won’t win because they won’t receive any money and even those with low incomes are able to enjoy access to legal representation to pursue a variety of different cases. It was this area of law that was hit hardest by changes because the winning solicitor would normally reclaim costs from the losing party.
Under the Jackson reforms, claim values were increased by 10% but solicitor costs would be taken out of these fees instead of being recouped from the losing side. Typically, a claimant and their solicitor will now agree what is known as a Damages Based Agreement. This is a percentage of the damages won up to a maximum of 25% that the solicitor will receive from the claimant’s compensation package. This would replace the money that would previously have been collected from the other solicitors.
The reforms have come under fire from many parties, claiming that it meant claimants would be less inclined to pursue action and that where the Damages Based Agreement was higher than 10% it meant that the claimant would receive less compensation than under the old system. However, Andy Slaughter was more critical of the extent and number of changes that were being introduced in a single run rather than the actual details of the changes.
During the Westminster Legal Policy Forum, Mr Slaughter said that it was too early to judge the effectiveness of the changes. He also said that the legal profession was having to deal with an unprecedented avalanche of changes and that he didn’t know how the legal profession, let alone the public could cope with so many reforms. He said that the criticism and changes were a clear indication of why it is important not to hear opinions that are too heavily slanted to one side of the argument, and that consultation should have included members of the Legal Industry.
A group of MPs have been told by Thatcham Research that it is highly unlikely that a person would suffer from whiplash in an impact with a speed below 6mph. They also heard that up to 60% of all whiplash claims are fraudulent and suggested that the UK adopt a system similar to the one which is in use in Germany that dictates accidents at speeds up to 6mph do not result in whiplash cases. The information was heard by the Transport Committee as they look at the Government’s proposals to reduce whiplash claims.
The Ministry of Justice opened a consultation on whiplash in December 2012. A report that they released declared that the UK was the whiplash capital of the world and stated that while motor accidents had dropped by 20% the number of whiplash claims had risen by 60% between the years 2006 and 2012. The report also claimed that 90% of relevant personal injury claims were for whiplash and that insurance companies claim around £90 per year is added to every motor insurance policy as a result.
The reason for the consultation was to bring down the cost of motor insurance which has risen markedly. The press widely reported on the fact that premiums had risen dramatically and that many new and inexperienced drivers simply could not afford to take out insurance policies. However, any changes could have a significant impact on victims and on the personal injury industry as a whole as well. Solicitors, as well as motor insurers, and members of the medical professional were invited to consult.
The Association of British Insurers had only stated that around 7% of incidents were exaggerated or were fraudulent but Andrew Miller, head of research at Thatcham Research, puts the figure considerably higher. According to his research, the figure is anywhere between 10% and 60% although critics of the findings point to the considerable range in figures and state that this 10% to 60% variation brings the validity of the numbers into question.
Also discussed was the likelihood of suffering injury in low speed accidents. Mr Miller and a Dr Donal McNally stated that incidents of whiplash in accidents at speeds of 6mph or lower were highly unlikely and advised that we take on a system similar to that in Germany. In this system, it is possible to question the validity of any claims that are made in cases related to accidents that occurred at speeds of 10kmh or less.
However Dr McNally pointed to findings from Sweden whereby 60,000 black boxes were fitted to vehicles and results from accidents were studied. According to the findings of this study, around 40% of more serious injuries would have fallen into this category and would have been ignored because of the comparatively low speed of the accident. There are many factors that will determine whether injury occurs and while it is more likely that serious injury is sustained at higher speeds, this does not necessarily mean that lower speeds will not also result in injuries.
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Mike Topper is the litigation manager at Stockslegal.
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Recent consultation undertaken by the government last year will be taken into consideration by the government, along with an assessment of the impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 before a decision on whiplash claims is made. Consultation was closed at the beginning of March which the government claim will help to reduce the cost of motor insurance premiums for consumers but critics claim will make it more difficult for those injured in accidents to be able to claim the compensation that they are rightfully owed.
The government opened consultation in December of last year on Reducing the Number and Costs of Whiplash Claims. The consultation paper stated the UK had become the whiplash capital of the world although some of the figures contained within the report have been contested. Respondents, including lawyers, solicitors, insurers, and medical professionals, were asked to respond by the beginning of March with their opinion and the government were set to make a decision having heard all of the necessary evidence.
The government proposed either an accreditation scheme or an independent medical panel to determine whether or not the cases merited compensation. One of the biggest problems with whiplash claims is that it can be very difficult to assess whether or not a patient has whiplash. There are no hard and fast tests that can be made in order to determine the efficacy and value of a claim and this was something that the government wanted to address.
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 has only just come into force and, in a statement from Louise Ellman MP, the government wishes to wait to determine the impact of these changes before deciding how best to move forward with changes to whiplash claims. Critics worry that people that have suffered injury will not be able to gain the same level of access to legal services and compensation if the government’s changes do go through.
In April, it was widely reported that despite the government’s sound-bites regarding the apparent increasing problem with whiplash claims, they had actually dropped to the lowest figure since 2008/2009. A Freedom of Information request revealed that there had been 488,281 claims made in 2012/2013 compared to the 547,405 in 2011/2012. This figure represents the lowest it has been since 2008/2009 and means that there were around 60,000 fewer whiplash compensation claims made in the past twelve months compared to the twelve months before.
The information had been obtained by the Association of Personal Injury Lawyers and was presented to the House of Commons in response to the request for consultation. The government has now declared that they will wait to hear all oral evidence and to see how recent changes to the Personal Injury industry affects claimants before deciding whether or not to implement their proposed changes. A number of groups and organisations are being called to give their information and evidence to the select committee and a decision will be made.
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During the Queen’s annual speech, she highlighted the introduction of the Mesthelioma Bill. This bill would provide sufferers of Mesothelioma with a means to gain access to compensation for their illness even in cases where the original employer or their insurer is not known. The Bill offers something similar to the scheme run by the Motor Insurer’s Bureau, which is considered an insurer of last resort, but critics have come out against the bill saying that claimants should receive the full amount of money that they are owed and not 70% as planned.
Mesothelioma is a potentially deadly disease that is contracted by those that have worked with or come into contact with asbestos. This cheap building material was used extensively in the 20th Century and employers continued to use the material even once the dangers were first brought to light. As a result, many individuals have suffered long and debilitating illness and many have died. In some cases it has proven possible to claim compensation but this isn’t always an option.
Any living victim, or relatives of those that have died, can claim compensation for mesothelioma and other asbestos related diseases from their former employer or their insurance company. The total amount of compensation that is typically awarded varies greatly dependent on the level of negligence displayed by the organisation, the extent of the individual’s illness and other factors such as their age. Some victims can expect to receive tens of thousands of pounds if they are successful in their claims.
Problems, however, can arise for those victims that are unable to locate their former employer. It can take 20 years or more for the extent of the illness to become known and, in some cases, it may be as long as 40 years. Many construction businesses and related organisations from the 1980s are no longer in business and this makes it very difficult for a claimant to be able to submit a compensation claim case. This is where the government’s proposed Mesothelioma Bill should pick up the slack and enable all victims to enjoy some means of claiming compensation.
Under the terms of the Bill, claimants will be able to claim compensation even if the employer or insurer is not known or no longer in business. The act means that insurance companies that offer employer’s liability insurance will be charged a new tax and this money will be used to pay victims that have nobody else to claim from. However, the current proposals mean that victims would receive only 70% of the compensation they are actually owed.
Critics point to the fact that an average claim totals £65,000 and that losing 30% of this money would mean that a person loses £19,500 which is obviously a significant sum of money. Supports will point to the fact that £45,500 is better the current zero figure that they are able to claim but if a person is judged to be owed £65,000 in compensation then surely they should receive the full £65,000? That is the question that many want answered.
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