Asbestos, recoupment of compensation, and the Pneumoconiosis (Workers’ Compensation) Act 1979  

mark_henley_ By Mark Henley

Defendants in asbestos-related claims should be careful to ensure that compensation paid under the Pneumoconiosis (Workers Compensation) Act 1979 (“the Act”) is properly deducted from a claimant’s damages, before an order for damages is made against them.

The Act provides for lump sums to be paid by the state to sufferers from pneumoconiosis, byssinosis and mesothelioma, who have not recovered compensation at the time when an application is made under the Act.

Payments made under the Act from 1.10.08 can be claimed by the state directly from defendants (see the Social Security (Recovery of Benefits) Act of 1997, as amended by section 54 of the Child Maintenance and Other Payments Act 2008): and such sums can be claimed in full even if they exceed the sum in damages which a defendant is ordered to pay by way of compensation in the civil courts.

Sums received by a claimant under the Act are, however, deductible from any civil damages: and defendants should ensure that this is done correctly in order to avoid double payment by them.

Moreover, defendants should note that the right to deduct payments made under the Act extends to the right to deduct payments from damages for pain, suffering and loss of amenity: see the Court of Appeal’s decision in Ballantine v Newall’s Insulation Company Ltd  [2000] P.I.Q.R. Q327, and [2001] I.C.R. 25, and the decision of Holland J in Cameron v Vintners Defence Systems Ltd [2007] EWHC 2267 (QB), and [2008] P.I.Q.R. P5.

This is an important difference from the usual practice for the deduction of other state benefits, which is that the claimant usually retains intact the full sum of damages which relates to pain, suffering and loss of amenity, without the defendant having any right of recoupment against this head of loss.

Even where all almost all of damages relate to pain, suffering and loss of amenity, defendants should therefore not fall into the habit of ignoring the right to deduct benefits received pursuant to the Act.

Written statements of the sums paid in the claimant under the Act can be obtained from the Workers Compensation Unit: and should be taken into account in calculating “net” sums in damages to be paid to claimants.

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2 comments

  1. […] Mark Henley advises that care should be taken over recoupment in Asbestos, recoupment of compensation and the Pneumoconiosis (Workers Compensation) Act 1979 […]

  2. […] My colleague Mark Henley writes on “Asbestos, recoupment of compensation, and the Pneumoconiosis (Workers’ Compensation) Act 1979&… […]

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