Are Servicemen Killed by Mesothelioma Denied Justice?

On Monday 20th October 2014, the  Commons Debate saw a renewed vigour to combat the injustice faced by service veterans who were exposed to mesothelioma (what is mesothelioma) caused by asbestos as a result of their service before April 1987.

Under current laws, servicemen and women who suffer from an injury or illness as a result of the negligence or breach of duty of the MOD prior to 1987 are prohibited from bringing a civil claim. This means that those who have died or who will die as a result of their negligent exposure to mesothelioma causing asbestos before April 1987 are barred from bringing a claim. This constraint has also been placed on the families of those who have died because of this terrible incurable disease.
This debate was initially raised in the House of Commons back in 1987 during which Baroness Bottomley of Nettlestone said:

” I was approached by Lt. Cdr. Mocatta in March 1985. He was a naval officer until 1964 when he retired at his request to work as a sales engineer in the mechanical engineering industry. Until September 1984 he enjoyed excellent health, but that year he went into hospital and after various investigations and operations, mesothelioma—a chest cancer resulting from prolonged contact with asbestos—was diagnosed. As an engineering officer for many years he had come into contact with asbestos dust during refit periods in the dockyards and in civilian ship repair yards. He came to see me on several occasions and over subsequent months I wrote to the Department and others several times to press his case. Lt Cdr. Mocatta always put the case clearly and fairly, arguing that others in his position should have the same considerations as civilians. He never overstated the case, but put it forcefully and movingly. One of his letters states: ‘it seems grossly unfair that serving and retired members of Her Majesty’s Forces are barred from being able to claim compensation in respect of the killer diseases like asbestosis and mesothelioma where as Industrial Civil Servants and Civilians, under existing Health and Safety legislation, are able to. It also seems equally grossly unfair that in the event of death of serving and retired members of Her Majesty’s Forces their wives and dependants are similarly barred from claiming compensation, where as the dependants of Civil Servants and Civilians can’. Throughout our correspondence he was particularly concerned about the effects on his widow and dependent children. During his difficulties Cdr. Mocatta received great help from the Royal British Legion and the Society for the Prevention of Asbestosis and other Industrial Diseases. His family with many others joined STAG when it started. I pay tribute to voluntary groups which give practical and emotional support to individuals and campaign effectively for changes in legislation. I hope that that is what we shall see today”. (Hansard)

The legal landscape did change in April 1987 and Service personnel have thereafter been able to bring a claim for personal injury damages against the MOD for negligent acts or omissions; however, that change in the law still does not help those who undeniably were exposed to asbestos before April 1987.

The most recent debate heard Gemma Doyle, Labour MP of West Dunbartonshire  and Anna Soubry Conservative MP for Broxtowe and Minister of State for the Ministry of Defence:

Gemma Doyle (West Dunbartonshire) (Lab/Co-op): “On the subject of legal claims, I am sure that the Minister has seen the Royal British Legion’s 2015 manifesto, which brings to light a breach of the principles of the armed forces covenant whereby veterans who contracted mesothelioma as a result of their service before 1987 are unable to sue the MOD and instead apply for 100% war disablement pension. That means a difference of over £100,000 less in the possible total payments to those veterans compared with their civilian counterparts, because the newly established compensation scheme for civilians pays a lump sum, whereas the war pension scheme does not. Will she review this matter urgently to avoid unnecessary legal action and to ensure that the principles of the covenant are being applied across Government?

Anna Soubry: “I do not need to review it urgently because the review is under way. Indeed, I have had a meeting with my officials in the past few weeks, so I am very much alive to the issues. The situation is a bit more complicated than the hon. Lady has explained it, because further complications are involved. However, I hope to be in a position to be able to explain the conclusions that we hope to come to very swiftly.”

I wait with much anticipation for the publication of the review, but in the meantime, do you feel that soldiers are being denied the opportunity to at least investigate whether they are able to bring a claim as a result of being diagnosed with mesothelioma?

By Karan Ahluwalia, Hilary Meredith Solicitors