One of the many cruel features of asbestos disease, is that its victims are usually of advanced years. The period between an asbestos victim getting exposed to asbestos, and starting to show symptoms, is a long one – anything from fifteen years to as many as fifty. This period is called ‘the latency period’.
Therefore, of the roughly 5000 or so deaths from asbestos disease that happen every year, most involve asbestos victims in their seventies or older. Cancer Research carried out a study a few years ago which revealed that six in ten deaths from mesothelioma (a form of cancer which is only caused by asbestos exposure) were in people aged 75 and over.
Asbestos disease claims can only be made once a person has been diagnosed with an asbestos illness. This requirement, coupled with the fact that there is no cure for any of the four main types of asbestos disease – mesothelioma, asbestos lung cancer, pleural thickening, and asbestosis – means it is not surprising that many asbestos sufferers die from their illnesses before they have had the chance to start an asbestos compensation claim.
Sometimes an asbestos claim may have been commenced, but not finished, before the victim dies from their asbestos illness.
Can the family of an asbestos victim continue (or start) an asbestos compensation claim, after the death of their loved one?
If an asbestos disease claim has been started before the asbestos patient dies from their illness, provided it is still within three years of their being diagnosed with asbestos disease (or proceedings have already been issued), a claim can be continued on the deceased’s behalf. In such cases where proceedings have not already been issued the three-year limit for bringing a claim will be reset at the date of death.
Where an asbestos claim has not been started by the time the deceased passed away, but it has been confirmed that they died from asbestos disease, those entitled to bring a claim in place of their loved one, may do so as long as it is started within three years from the date of death as long as the deceased was not aware of the potential claim for more than three years prior to their death.
How do you know if someone died of asbestos disease, as opposed to something else?
When asbestos disease is believed to have caused a loved one’s death the Coroner must be informed. Usually this will be done either by the deceased’s GP, or the hospital or hospice the asbestos sufferer was in at the time of death.
The Coroner
It is the Coroner’s job to carry out an investigation into the circumstances of how a person died and what it was they died from. The investigation will lead to an Inquest being listed. This Inquest is a form of court hearing at which the evidence produced by the investigation will be heard by the Coroner. This court is called a Coroner’s court. The aim of the Inquest is to help the Coroner decide what the cause of death was.
Post mortem
Before the full Inquest hearing takes place, the Coroner will have to consider whether to make an order for a post mortem to be carried out. If the cause of death is unknown or uncertain, it’s likely that a post mortem examination will be required.
It is important to note that if an Inquest is deemed to be necessary, the Coroner can issue an interim death certificate so that procedural matters can be carried out by the deceased’s relatives, without having to wait for the outcome of both post mortem and Inquest.
In suspected asbestos disease cases, the post mortem will involve a sample of lung tissue getting taken from the deceased. It is often only after a post mortem that many cases of mesothelioma are formally diagnosed. For other types of asbestos illness, the tissue sample analysis will help indicate the level of asbestos exposure.
The Inquest
If there is no post mortem, the Inquest may be heard within a matter of weeks from death. If a post mortem is needed, the Inquest may not take place for some time, often months, whilst expert analysis of the lung sample is undertaken.
(The coroner can give permission for the funeral to take place, once any tissue samples that may be required for analysis have been taken from the deceased.)
When the Inquest takes place, the bereaved family are very much at the centre. They can ask questions of any witnesses who are called to give evidence at court.
In most cases, the deceased’s family will be represented by an experienced asbestos solicitor, who will ask questions of witnesses, on their behalf.
If an asbestos claim has already been started, the asbestos disease solicitor acting for the asbestos victim and their family, may have already gathered useful evidence which the Coroner will find helpful in establishing the cause of death, such as:
- A complete record of the deceased’s work history
- A full statement from the claimant
- Statements from work colleagues
- Medical records
- Medical report from a consultant physician who is an expert in respiratory diseases
After weighing up all the evidence the Coroner will hope to be in a position to find answers to the following:
- The identity of the deceased (who)
- Where and when the deceased died (when)
- The cause of death (what)
- The manner in which the deceased came to die (how)
Answering the ‘how’ question (number 4, above) usually proves the most difficult for the Coroner, who will take account of the witness evidence and representations from the expert asbestos disease solicitors present at the Inquest.
If the Coroner finds enough credible evidence has been presented to support a finding that the asbestos victim died as a result of asbestos exposure whilst at work, he or she will conclude the deceased died from an industrial disease.
Who will make the asbestos claim after the death of the asbestos sufferer?
The answer to this question will depend on whether the deceased made a Will before they died.
If the deceased has made a Will, the claim will then be brought by the Executor of the Will on behalf of the named beneficiaries.
If the deceased has not made a Will at the time of death, then the deceased is said to have died intestate. In that case the Rules on Intestacy decide who may apply for Letters of Administration (a legal document provided by the court to show who is authorised to administer the deceased’s estate).
The role of an asbestos disease solicitor in asbestos claims after death of the asbestos sufferer
Asbestos disease compensation claims can be complex matters to pursue, and this is particularly the case where either the asbestos victim has died without having started a claim or where a claim has been started but not finished.
On top of that, the Inquest that follows someone’s death from an asbestos-related disease, is of itself both a stressful and complicated event for the relatives of the deceased to have to deal with.
At Asbestos Awareness, we are firmly of the view any family who have had a member recently diagnosed with asbestos disease should appoint an expert asbestos solicitor at the earliest possible stage. Experienced asbestos lawyers not only know the right steps to take, before they become urgent, they are also a genuine source of comfort and support. Never does that become more important than when the person suffering from asbestos disease passes away and the family left behind are faced with the scenarios, set out above.
James Burrell and Leanne Keating are both experienced asbestos disease solicitors at Bridge McFarland LLP in Hull. Both James and Leanne are happy to speak with those suffering from asbestos disease and/or members of their family who wish to discuss the possibility of making an asbestos compensation claim.
If you would like to discuss in confidence and without any obligation to take the matter further, please call James or Leanne on 01482 320 620. Alternatively, you can email James and Leanne at info@bmcf.co.uk
In most cases Bridge McFarland are able to handle clients asbestos disease claims on a No Win No Fee basis.
