Asbestos; Prime Minister promises review of compensation for military victims | Bolt Burdon Kemp Asbestos; Prime Minister promises review of compensation for military victims | Bolt Burdon Kemp

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Asbestos; Prime Minister promises review of compensation for military victims

Service personnel who have been injured by the negligence of their colleagues or chain of command, or by the procedures set in place by the MoD, have been able to bring compensation claims in court since 1987. Veterans who were injured by the negligence of the MoD before 1987, however,  are not allowed to sue (though the position is different if the harm was deliberately inflicted).  This hits those who were exposed to asbestos in the course of their service hard because the harm they suffer can take decades to show itself and allows them less compensation than civilians in the same situation.

At Prime Minister’s Questions on 4th November David Cameron agreed to review the situation and to take account of the Military Covenant, which pledges the state to ensuring that military personnel are not at a disadvantage,  compared to those in civilian life, because of their service.

Find out more information about the duties the Ministry of Defence has towards service personnel.

Asbestos exposure in the Armed Forces

The durability and heat resistant properties of asbestos meant that it was extensively used during the 1950’s through to the 1970’s in construction and shipbuilding for insulation or as a fire retardant.

Armed Forces personnel including civilians employed by the Ministry of Defence and members of the Merchant Navy would have come into direct contact with asbestos and may be eligible for compensation.

This blog aims to give practical guidance on what to look out for and what legal steps you should consider if you think you may have been affected.

Personnel have been exposed to asbestos in many different settings. Some examples would be;

  • On board ships in engine rooms insulated with asbestos for fire protection including walls, doors and floors that required it. Pipes on board ships were also lagged with asbestos insulation and when repairs were carried out asbestos dust and fibres were released.
  • Exposure also occurred in army barracks when repairs or remodeling was carried out. Asbestos was used in flooring tiles, ceiling tiles, electrical wiring, roofing material and insulation.
  • Exposure to asbestos also came from army vehicles and aircraft. Asbestos was used in heating systems, brake pads, clutches and gaskets because of its heat resistance properties.

Asbestos exposure compensation advice

The MoD has a duty to ensure that its employees and others to whom it owes a duty of care are not exposed to the risk of foreseeable injury. A failure to provide adequate protective equipment including clothing, face mask, gloves, health and safety training and warnings about the dangers of exposure to asbestos can amount to a breach of duty.

  • If you believe that you have been negligently exposed to asbestos by the Ministry of Defence, after May 1987 resulting in the development of a recognised asbestos condition, it may be possible to pursue a claim for compensation in the civil courts.
  • If you were employed by the Ministry of Defence as a civilian or served in the Merchant Navy the principle of ‘Crown Immunity’ does not apply to you. As such, if you believe you have been negligently exposed to asbestos resulting in the development of an asbestos condition you are entitled to pursue a claim for compensation like any other employee.
  • Even if the person who suffered the asbestos related condition has died, the claim can still be pursued on behalf of his/her estate or dependants.
  • If you were employed as a member of the Armed Forces and were negligently exposed to asbestos before May 1987 you are not entitled to pursue a civil claim against the Ministry of Defence.

As well as bringing a civil claim it is important to remember that service personnel may also be eligible to claim benefits.  Below are details of possible benefits that you may be entitled to:

  • Payment under the War Disablement Pensions Scheme.  For further information please contact Veterans UK on 0800 085 3600.
  • Payments under the Industrial Injuries Disablement Benefit Scheme.  For further information please contact Industrial Injuries Disablement Benefit Centre – Barrow Benefit Centre on 0345 603 1358 or Barnsley IIDB Centre on 0345 758 5433.
  • You can also make a claim under the Diffuse Mesothelioma Payment Scheme 2008.  For further information please contact Barrow Industrial Injuries Disablement Benefit Centre on 0345 603 1358.

Asbestos conditions

Inhalation of asbestos dust or airborne asbestos fibres can, over years, result in the development of one or more of the following asbestos conditions.  The latency period from the date of exposure to the date of actual diagnosis can be between 10 – 40 years or more after first exposure to asbestos.

Recognised asbestos conditions include:

  • Pleural Plaques, these are small areas of scar tissue on the pleura, which is the thin layer of tissue covering the surface of the lung and lining the interior of the chest wall. Over time they can harden and become calcified. Pleural plaques are benign and do not themselves cause any significant disability or impairment of lung function.  They are however markers of previous asbestos exposure.
  • Diffuse Pleural Thickening, this is thickening of larger areas of the pleura. Any irritation, such as that produced by exposure to asbestos dust, increases the amount of pleural fluid. A pleural effusion may form, and when this fluid is gradually reabsorbed the pleura becomes thickened. This results in pleural thickening which can affect both lungs (“bilateral”) or just one (“unilateral”). Symptoms are usually gradually increasing breathlessness on exertion and a sensation of tightness and discomfort in the chest. Pleural thickening may also cause compression of the underlying lung which can result in rolled atelectasis or rounded atelectasis or folded lung.  Diagnosis is usually made on the basis of a chest X-ray or high resolution CT scan or following lung function tests.
  • Asbestosis, also known as diffuse pulmonary fibrosis, is a chronic inflammatory and fibrotic condition of the lung tissue itself. It is caused by prolonged and heavy exposure to asbestos dust. Symptoms consist of breathlessness on exertion and often a dry cough.  Diagnosis can be made on high resolution CT scan and pulmonary lung function tests.
  • Mesothelioma, also known as diffuse or malignant mesothelioma, is a form of cancer and in the majority of cases is caused by a history of exposure to asbestos. Mesotheliomas can be pleural (covering the lung) or peritoneal (lining the abdomen) and in rare cases they can be pericardial (lining the heart).  The cancer can take many years to develop. Symptoms are usually severe chest pain, followed by shortness of breath due to pleural effusion. Diagnosis can be made by CT scan which will detect the tumor.  Pleural fluid aspiration and analysis or CT guided biopsy are also used to get a diagnosis.
  • Asbestos Lung Cancer, there are two main forms of asbestos lung cancer: small cell lung cancer and non-small cell lung cancer.  Those diagnosed with asbestosis are at an increased risk of developing asbestos lung cancer as it is caused by prolonged and heavy exposure to asbestos dust. Where there is also a history of smoking and heavy exposure to asbestos this can greatly increase the risk of developing asbestos lung cancer.   Symptoms include shortness of breath and a prolonged dry cough. Diagnosis can be made following a CT scan or chest X-ray and through bronchoscopy.

Ministry of Defence and Crown Immunity

If you were a civilian employed by the Ministry of Defence at the time of the exposure, or if you were a member of the Armed Services but your exposure was in some ways caused by an organisation or individual other than the MoD such as a civilian contractor, your claim is unaffected by Crown Immunity.

For military victims whose exposure was entirely caused by the MoD, the situation is more complex.

Prior to 1987 the principle of ‘Crown Immunity’, under section 10 of the Crown Proceedings Act 1947, denied members of the Armed Forces the opportunity of pursing personal injury claims against the Ministry of Defence for negligent death or personal injury in service.

This means that if you were negligently exposed to asbestos whilst working for the Armed Forces as military personnel prior to 1987 you could not sue the Ministry of Defence.

Thankfully the law changed and under The Crown Proceedings (Armed Forces) Act 1987, the principle of ‘Crown Immunity’ was repealed. Unfortunately the changes were not retrospective.

Currently the loophole in the law means that those suffering illness or injury caused by asbestos exposure before 1987 cannot sue the MoD.

Campaigners and victims are calling for a change in the system to ensure that service personnel exposed to asbestos before 1987 are not disadvantaged because of their service and that they receive the same level of compensation as their civilians counterparts.

Time limits for bringing a claim for asbestos exposure

You must seek legal advice and pursue your asbestos claim as quickly as possible as strict time limits apply.

Court proceedings in respect of civil claims involving asbestos exposure must be started within three years of the date of diagnosis of a recognised asbestos related condition or three years from the date of death.   If the time limit has passed, however, it is still worth making an enquiry as soon as possible, as the court will in certain special circumstances allow a claim to proceed out of time.

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