Great news for asbestos victims

Asbestos is not a modern discovery. There is mention of a fire proof fibre as far back as the 5^th Century BC and possible references to illnesses of the lung from about the same time. But it is fair to say that it was in the 20^th Century that its use on an industrial basis really took off. Apparently a snow scene in the Wizard of Oz used white asbestos!

The real tragedy is that it is only now that we are seeing the real cost. Asbestos is known to cause serious lung disease including lung cancer and mesothelioma. The latter is almost always terminal.

There is normally a gap of 30 – 40 years between the exposure to asbestos and the appearance of symptoms of mesothelioma. This presents a logistical nightmare for victims and their advisers. And it was the subject of a major decision of the Supreme Court earlier this week.

This has become known as the ‘trigger litigation’. In essence the insurers for companies who were guilty of negligent exposure of their workers to asbestos were seeking to avoid having to pay compensation. Their argument was that the liability to pay was not theirs because the ‘trigger’ for the insurance liability was not the time of exposure but the start of symptoms which is usually many years later. This was a potential cause of massive injustice. By the time a victim suffers symptoms say 40 years after exposure many companies have long since disappeared. If there was no insurer around to deal with it then there was no compensation.

On 28^th March the Supreme Court decided that the ‘trigger’ is the time of inhalation of the asbestos and not the later date.

http://www.guardian.co.uk/business/2012/mar/28/asbestos-court-ruling-insurers-bill

This is a massive relief to thousands of sufferers. It is tragic that many died before being able to benefit from this decision but at least their families will now be able to claim. This is a significant decision from the Supreme Court who, not for the first time, have decided in favour of those blighted by the asbestos scandal.

If you or a family member have been affected by asbestos EAD Solicitors have a specialist team of lawyers who have pursued successful claims for victims and who will fight for maximum compensation.

www.eadsolicitors.co.uk

Don't forget the victims

There seems to be news reports every day about the rising number of claims arising from motor accidents. From the rhetoric of some politicians and the media it would be easy to believe that this is the fault of victims.

Time and time again we are being told that there is a compensation culture which is causing insurance premiums to soar. Not surprisingly this agenda is driven by the insurance industry. Only last week the Prime Minister said - “I am determined to tackle this damaging compensation culture which has been pushing up premiums.’

What this means is that a victim of a motor accident somehow feels that they are to blame if they pursue a claim.

Try telling that to the family of Cerys Edwards whose life was destroyed by a speeding driver –

http://www.bbc.co.uk/news/uk-england-birmingham-17139275

£5m in compensation might seem like a lottery win but in reality that will just about cover the care needs of a 6 year old for the rest of her life. For the injury itself the most that can be awarded is £265K. So if she lives another 40 years she will get just over £16 per day for being paralysed from neck down.

That is the problem with all of the talk about how much is spent on claims and how this affects premiums or the profits of insurance companies. The plight of victims becomes buried under the avalanche of rhetoric about a compensation culture that most commentators accept does not exist.

There will always be a small number of fake claims. They should be weeded out of the system by robust medical evidence and close screening by experienced solicitors. It is another myth of this debate that lawyers, who are not paid a penny in unsuccessful cases, are somehow encouraging spurious cases.

Anyone who is the victim of an accident caused by a driver, or any anybody else for that matter, should have access to independent legal advice. 

Damages for hacking v Damages for injury

There has been much coverage in the press about the compensation paid out to celebrities by News International following the ‘hacking’ scandal. This has clearly been a disgraceful invasion of privacy and nobody can have much sympathy for Rupert Murdoch’s company for having to make these payments.

But the amount the payments raises another interesting issue. That is the comparison between compensation paid to victims of hacking and that paid to victims of accidents. The latter have been subject to vilification by politicians, the press and insurance industry who say that we have a ‘compensation culture’ which needs to be dismantled.

So let’s look at some of figures that have been reported for victims of hacking. Jude Law got £130k. In an earlier settlement his ex, Sienna Miller, accepted £100k. These are to compensate the victims for injury to feelings etc and not for financial losses.

According to the most recent Guidelines Personal Injury Damages such awards would only be received for the most catastrophic of injuries.

For example, to get an award of £130k you would have to suffer a moderate brain injury with permanent consequences including moderate to severe intellectual deficit a personality change, an effect on sight, speech and senses with a significant risk of epilepsy and no chance of working.

If you lost the sight in one eye and the other carried a serious risk of deterioration in the other eye then you might expect £100k although that is at the higher end. You might get something approaching £100k for loss of a lung with lengthy pain and suffering with permanent scarring.

Now you cannot compare the two and I for one would never begrudge the damages paid to those who endured the invasion of their privacy. But we also need to get things in perspective before dismissing other victims as just being part of a culture of looking for easy money. To get anything approaching the damages paid to these celebrities you have to have suffered a permanent, life-changing injury. Those victims need all the support that they can get rather than constant, negative publicity.

Pro Bono - have we found what we're looking for? (update)

I first wrote this last year before the full extent of the legal aid cuts was known.

Since LASPO received Royal Assent the Law Society has called upon all layers to increase the amount of Pro Bono work that they do.

 http://www.lawgazette.co.uk/news/pro-bono-no-substitute-legal-aid-wotton

 This is of course nothing to do with any U2 fan club.

In simple terms pro bono refers to  the provision of free legal services by the legal profession. Last year Michael Napier QC talked about setting aspirational hours of pro bono work. He says that his own firm Irwin Mitchell encourages its lawyers to do 14 hours of pro bono work a year.

Most lawyers I know, will probably do more than that per month. Much of the work done in preparation for public funding in a clinical negligence in the case is done at no charge. This can involve anything from the screening of new matters to initial investigation work in order to establish whether or not this is a potentially viable the case. How often do we advise potential clients in person and by telephone of the alternatives to litigation and to set them on the right path? This is often also the case in employment and criminal injuries cases. 

In addition to this and many lawyers do huge amounts of voluntary work; attending advice sessions at citizens advice bureaux and law centres. Many Courts also have a resource for free legal advice manned by volunteers.

What concerns me here is that the politicians could use up all of this talk about pro bono work as an excuse to justify cuts in public funding. The reality is that lawyers will always do their bit ; in fact they do a lot more than a bit!

This should not be seen as a replacement for a properly funded legal aid scheme giving equal access to justice to all citizens.

Of course it might be necessary for lawyers to do even more free work if this is the only alternative to a total collapse of our court system. With this in mind it is interesting to note the comments from Lady Hale of the Supreme Court indicating that these cuts are a false economy.

So I think we should expect the amount of unpaid work done by lawyers to increase but this should not deflect us from the tireless and continuing opposition to the cuts.

www.eadsolicitors.co.uk

Blunting the cutting edge

My first real job as a lawyer was at the Vauxhall Law Centre in Liverpool. In the early 80s this was in one of the most deprived areas in the UK. We took action against public and private landlords for tenants in atrocious living conditions. We took on cases that private law firms could not or would not.

 I recall one client who said she wanted advice about her husband's 'infidelity'. I listened with interest as she went on to say that the social said he could work and were stopping his infidelity benefit!

It was the Law Centre that I first experienced law at the cutting edge. Cases were taken on to develop the law as it affected some extremely vulnerable clients. These were normally backed by legal aid. One case, about disturbance allowance,  was run to trial in the High Court with a possible value to the client of a couple of hundred pounds but potentially worth millions to displaced tenants generally. This has been one of the unsung benefits of a healthy, publicly funded scheme. Our laws have developed through the use of precedent as such cases are pursued through the higher courts.

This is highly unlikely to happen much in the future.

In so many areas of law cases can only be run on a no win no fee basis as funding has been eroded. The nature of these cutting edge cases is that they are risky. How many law firms can stake their business to change the law. Some do. Most cannot. This is bound to continue as whole areas of law are excluded from legal aid.

The capacity of our laws to develop through creative ltigation has made our system the envy of many.

It does seem a shame that only the safest of cases will be pursued - and many of them will not!

What future for our common law apart from those pursued for and by the wealthy?

Welfare Benefits Sting

Anyone claiming Disability Living Allowance (DLA) has their medical condition assessed by ATOS – a private company contracted to the DWP. Their refusal rate is alarming. According to a report in the Guardian complaints are made by some disabled claimants that their centres have no or little disabled access!

http://www.guardian.co.uk/society/joepublic/2011/jul/25/disability-benefits-atos-government-hiding

But a more disturbing matter is the number of wrong decisions.

According to the same Guardian report; as many as 40% of appeals succeed.

Another site has a success rate as high as 70%

http://www.benefitsandwork.co.uk/disability-living-allowance-dla/dla-appeals

What is this costing the taxpayer?

But something far more disturbing is on the horizon. When the infamous Legal Aid Sentencing and Punishment of Offenders Bill (LASPO) becomes law in 2012, it will no longer be possible to get any publicly funded legal advice for welfare benefits. Such advice is entirely removed from the scope of legal aid under the bill. This can be a very complex and technical area of law. The removal of legal aid will cover all benefit related advice and assistance including appeals to the Supreme Court!

So we have a major problem. There is the classic inequality concern – the state has the unlimited resources of its legal departments. A claimant refused DLA by an agency that has a remarkable ability to get it wrong, has no recourse to advice.

Far be it from me to suggest that there is agenda here…

So what do we do LASPO had a severe mauling in the House of Lords last week. So might there be concessions – possibly.

But the only other advice is – don’t get sick or injured for the next few years at least.

Domestic violence - Back to the future

Our legal aid system, of which we have been rightly proud, is facing the most devastating cuts in its history.

Although I am not a family lawyer the proposed restrictions in cases of domestic violence defy all logic.

Under the proposed new regime a victim of domestic violence will find it virtually impossible to get legal aid to apply to the court for protection. The victim will have to establish that there is a ‘high risk of violence’, before legal aid will be available.

Most commentators and practitioners accept that in reality this means that there will have to have been reports to the police. Statistics show that very few women report violence to the police. Speaking recently in the House of Commons Helen Goodman MP said – ‘most women experience 20 episodes of domestic violence before they reported to the police.’

Firms who specialise in family law and have recently audited files and report last caseload which numbered hundreds will be reduced to single figures once these cuts take effect.

The reason a civil remedy was brought into existence in the 1970s was to address this very problem. These provisions take us back 40 years and will seen many women trapped in abusive relationships.

Any civilised society has to have a rule of law. However if that rule of law is to be of anything but notional value, there must be an equal right of access. To deny that some of the most vulnerable members of society the support of that society to seek protection is a dangerous and retrograde step. I certainly hope that these provisions will be opposed in the Lords