An MHK (Manx equivalent to an MP and meaning a member of the House of Keys) tabled a motion in July’s sitting of Tynwald (the equivalent of Parliament) proposing the creation of a mesothelioma compensation scheme. The motion was carried for Tynwald to request that the Treasury investigates the creation of a compensation scheme for workers who have contracted diffuse mesothelioma due to exposure of asbestos on the Isle of Man.

Why is this important?

Mesothelioma is a devastating and often fatal disease caused by asbestos exposure, and has been a significant concern for years. The legal landscape surrounding mesothelioma claims has undergone substantial changes in neighbouring jurisdictions, with various statutes, regulations, and case law shaping the framework for compensation there. The Isle of Man currently does not have a compensation scheme for individuals diagnosed with mesothelioma as a result of asbestos exposure on the Isle of Man. Compensation schemes are important because often, mesothelioma is not diagnosed for some years after exposure, by which time employers or companies who may otherwise have been liable have ceased to be and/or insurers cannot be traced.

Statutory Compensation Schemes in England and Wales

The UK has a comprehensive legislative framework for mesothelioma claims, providing access to several compensation schemes. One such scheme is the Diffuse Mesothelioma Payment Scheme, that was established by the Mesothelioma Act 2014 of Parliament and offers compensation to those who cannot locate the employer responsible for the contact with asbestos, or their insurer. The scheme ensures that those suffering from mesothelioma receive financial assistance, regardless of their ability to pursue a legal claim.

Statutory Compensation in the Isle of Man

In contrast, the Isle of Man does not have a statutory compensation scheme specifically for mesothelioma cases. Those suffering from mesothelioma in the Isle of Man may be able to apply for support under other schemes, but that is not always possible. The absence of a statutory compensation framework for mesothelioma cases places greater reliance on pursuing litigation to recover loss suffered as a result of asbestos exposure.

What is the impact on those who have a potential mesothelioma claim?

The complexities of bringing a claim

To bring a successful mesothelioma claim it must be proven that there was a breach of duty, or negligence, which resulted in asbestos exposure that, in turn, caused the mesothelioma.

In England and Wales, where a Claimant cannot prove causation in the traditional sense, claimants may recover damages where a defendant's breach of duty materially increased the risk of developing mesothelioma (Fairchild v Glenhaven Funeral Services Ltd (t/a GH Dovener & Son) [2002] UK HL 22). This is significant for claimants exposed to low levels of asbestos, as it lowers the evidential burden for establishing causation. Whilst England and Wales judgments do not have force of law in the Isle of Man, they are highly persuasive authorities in the absence of local precedent, especially when from appeal courts.

However, even with the lowered evidential burden, it is still necessary to prove that a duty of care was breached resulting in asbestos exposure. Given the nature of mesothelioma claims, this can be difficult. Depending on the level of asbestos exposure and other factors, it usually takes decades for mesothelioma to develop and be diagnosed. Consequently, it then becomes more difficult to obtain the required evidence or locate and hold the correct entity accountable.

Conclusion

The statutory compensation schemes and secondary legislation in England and Wales provide a dynamic framework for supporting and compensating individuals suffering from asbestos related diseases. The lack of such schemes in the Isle of Man makes it necessary to place greater reliance on pursuing litigation. Every case will turn on its individual facts but where an individual has the basis of a claim they may be compensated in damages for their loss suffered as a result of the asbestos exposure suffered (as long as an employer/insurer can be identified). The proposed Tynwald motion to explore the creation of a mesothelioma compensation scheme in the Isle of Man is a positive development towards helping those who are suffering as a result of asbestos exposure where no other route to recover compensation is available.

Finn Martin is a trainee Advocate at M&P Legal with experience of personal injury claims. This article is not legal advice, always seek specific advice on the facts of each case.

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