The injustice of the Diffuse Mesothelioma Payment Scheme and why an overhaul is needed
By Satpal Singh, a specialist asbestos-related disease lawyer at Irwin Mitchell
A recent case involving a woman contracting mesothelioma highlights the injustice of the Diffuse Mesothelioma Payment Scheme (DMPS).
What is the DMPS?
Eligible applicants can claim under the DMPS where their employer, or employer’s liability insurer, cannot be traced. The DMPS is funded by a levy on insurers and was necessary due to the failure by insurers to retain insurance records.
Mesothelioma claims are complex, very challenging and full of inherent injustices in the valuation of a person’s life. It is particularly difficult to explain to our female clients, who have contracted mesothelioma as a result of washing their husband’s asbestos contaminated work clothing, that the DMPS fund of last resort is not available to them.
They see the injustice where if their husband had contracted an asbestos injury and could not sue their employer/insurer, then the DMPS would be an option. It is difficult to understand why an employee is treated differently to their family, even though they are all exposed to the same source of asbestos.
Work overall cases disproportionately affect women
Time after time we see that work overall cases disproportionately affect women; in the more traditional societies of the 1960s and 1970s, it was more often the woman’s job to wash the husband’s work clothes. In such cases it is usually extremely difficult to find an active company to pursue and it is near impossible to identify a public liability insurer that would meet the claim. This is because public liability insurance - the insurance that covers victims who are not employed by the company - usually contain exclusions for asbestos-related disease.
In a recent case, our client was exposed to asbestos from washing her ex-husband’s work clothing. He was a dock worker and we were able to bring a claim against the various dock companies. However, if the dock companies were not available to be sued then she would have been left with no recourse to compensation and the DMPS was not an option.
The DMPS is therefore not a last resort for all sufferers of mesothelioma that were exposed to the same source of asbestos, just those that happened to be employed. This is an injustice that needs to be re-examined.
Indeed this injustice was explored during the various debates before the DMPS was set up but, regrettably, nothing further featured in the scheme terms. It is impossible to put any financial value upon the loss of a life, but this failure in the DMPS leaves many victims with a meagre payment due under the 2008 Mesothelioma Scheme. This cannot adequately compensate them and their families for the loss of a wife or mother.
Justice
From the early-1960s the dangers of asbestos injury from washing and handling asbestos contaminated work overalls at home were known. Still, many employers continued to allow their workers to be exposed to an avoidable and unacceptable risk of harm from asbestos at work.
Further, they allowed their workers to go home with asbestos contaminated work clothing. So, we have a situation where an employer fails to reduce or eliminate asbestos dust in the workplace and therefore creates a risk of harm to both their employee and their family, but the DMPS will not recognise that the family of the employee should be able to access the scheme.
Female workers like Nellie Kershaw, Nora Dockerty and Alice Jefferson together with researchers and scientists like Dr Muriel Newhouse and Hilda Thompson have, across decades, brought to light the dangers and horrific effects of asbestos exposure. Their sacrifices and efforts have brought about positive change and yet more change is still needed to compensate all victims of asbestos exposure.
I feel that the DMPS should not limit the person or persons that are eligible to claim in circumstances where the exposure occurred from the workplace. The DMPS should therefore be re-evaluated and correct the injustice that women have and continue to suffer.
Find out more about Irwin Mitchell’s expertise in supporting people and their families diagnosed with mesothelioma and other diseases at our dedicated asbestos-related disease section.
