The Claims Process:

The claims process is best explained by addressing three questions:

• Who May Claim?
• What is a Qualifying Claimant?
• What is a Qualifying Operation?

(See also the page on Award Calculation)

In this page, any word/s in red bold type are "hot", and you are invited to place the mouse cursor on them.

The following persons may be considered to be qualifying claimants:

• Workers at certain asbestos mining operations ("Qualifying operations") who suffer from asbestos related diseases (ARD). The persons are referred to as Occupational Claimants.
• Persons who lived near certain asbestos mining operations and who suffer from ARD. These persons are referred to as Environmental Claimants.
• The dependants of workers who died as a result of contracting certain ARD's. These persons are known as Dependant Claimant. For the avoidance of any doubt, Dependant Claimants shall not be entitled to compensation, unless a cause of death was mesothelioma or asbestos related lung cancer, as the case may be.

Note that claimants who participated in the Cape PLC case are excluded from applying for compensation.

No Dependant/s Claim shall be accepted by the Trustees in circumstances where the deceased had previously made a claim in relation to mesothelioma and/or asbestos-related lung cancer and that claim had been accepted by the Trustees.

In making awards to Dependant Claimants, the Trustees shall procure a written warranty and undertaking from the Dependant Claimant stating that he/she is the true representative of the estate and/or dependants and that payment to him/her shall be in full and final settlement of all their claims arising out of the death of the deceased and shall indemnify the Trust against any further claims from any other Dependant claimants. The Trust shall accordingly exclude any further claims from any other Dependant Claimant in respect of that estate. The Dependant Claimant shall further undertake to distribute the award to any other person whom the Dependant Claimant purports to represent.

Dependant claimants shall only be entitled to an award in respect of loss of support and not any other damages

Any living claimant who submits a claim and is subsequently diagnosed as suffering from mesothelioma or asbestos related cancer whether before or after death shall be treated as a live claimant, and the provisions of 11.2.2.5 shall not apply.

Diseases:

Occupational and Environmental Claimants:

Occupational Claimants and Environmental Claimants shall only be entitled to compensation for the following types of ARD, as are defined in clause 11.2.1.1 of the Deed of Trust:

• mesothelioma;
• asbestosis;
• asbestos related lung cancer; and/or
• asbestos related pleural thickening.

Compensation shall only be awarded in circumstances where the ARD has caused lung function impairment.

Proof of disease:

A Qualifying Claimant shall be required to satisfy the Trustees, acting reasonably in the circumstances, that he/she has contracted one of the relevant diseases referred to in clause 11.2.1.1 or that the deceased has died and a cause of death was mesothelioma or asbestos related lung cancer as referred to in clause 11.2.2 which deals with Dependant Claimants.

As a general rule and in relation to asbestosis and pleural thickening, the Trustees will require such information as they deem necessary to make a firm diagnosis of diseases and a proper assessment of lung function impairment which shall reasonably include:

• a good quality postero-anterior X-ray film of any Qualifying Claimant’s lungs and/or a report of the results of the X-ray graded and classified according to the standard long form ILO classification system, such report to have been completed and signed by a qualified radiologist;
• the results of lung function tests (in which any reduction in vital capacity (restriction) and spirometry (FEV1 and FVC) is recorded) and upon which an assessment is made by a qualified pulmonologist as to the impairment/disability associated with the ARD; and
• the results or the records of a clinical examination; and
• a history of asbestos dust exposure.

Such medical evidence shall be submitted to and considered by a doctor or doctors appointed by the Trustees for the purpose of diagnosis or confirmation of diagnosis.

In circumstances where a definitive diagnosis is not capable of being made on the basis of the information above and/or in cases where any lung function impairment may be attributable either wholly or in part to other non-asbestos related lung disease (for example, tuberculosis, the effect of smoking/emphysema, silicosis and the like) the Trustees may in their discretion require any Qualifying Claimant to undergo such further examinations as they deem appropriate, including HRCT scanning in order to quantify and differentiate the various aspects of asbestos and non-asbestos related lung disease to assist them in determining the claim.

As a general rule and in relation to mesothelioma and asbestos related lung cancer, the Trustees shall be required to receive such information as they require to make a firm diagnosis, which shall reasonably include:

• a good quality postero-anterior X-ray film of any Qualifying Claimant’s lungs and/or a report describing the findings, such report to include classification of the X-ray film, according to the ILO system of any accompanying asbestos related benign lung or pleural disease;

• a pathological report prepared pursuant to:

  • a cytological examination of a pathological sample, for example, of pleura or lung tissue or fluid; and/or
  • a biopsy;


• the results or the records of a clinical examination (provided that in the case of a Dependant Claimant, such an examination had been performed during the life time of the deceased); and
• a history of asbestos dust exposure.

Such medical evidence shall be submitted to and considered by a doctor or doctors appointed by the Trustees for the purpose of diagnosis or confirmation of diagnosis.

Medical Review Panel

Proof of exposure

The Trustees shall be obliged to determine to their reasonable satisfaction, the full extent of any claimants, including the deceased's in the case of Dependants' Claimants, exposure to asbestos dust by reference to Qualifying and non-Qualifying Operations and whether that exposure was during the Qualifying Period, pre or post the Qualifying Period, or otherwise.

Occupational Claimants shall, save in exceptional circumstances only, be required to furnish documentary proof of employment. Such documentary proof of employment shall include but not be limited to:

• reference in the records of the MBOD or CCOD, to employment at a Qualifying Operation,
• any other work record,
• Government Department record,
• medical record,
• wage slip or pay advice identifying the Qualifying Claimant,
• and any other certificate or document originating from a Qualifying Operation, including
  
  • a stamped reference book
  • or list of employees which identifies the Qualifying Claimant as having been an employee of, or worker at, a Qualifying Operation during the Qualifying Period.

Environmental Claimants shall be required to furnish proof of residence at or near a Qualifying Operation as well as the period of such residence thereat together with suitable medical evidence confirming that environmental exposure to asbestos dust at such residence was likely to have materially contributed to the ARD.

The Trustees shall be required to receive and take into account evidence as to:

• the distance resided from the relevant Qualifying Operation,
• likely sources of asbestos dust exposure or other asbestos mines or mills,
• length of time resided there,
• dates of residence and
• full occupational history and
• such scientific and official data relating to environmental dust levels as are obtained or made available to it.

Dependant Claimants shall, in the case of claims made on behalf of persons who contracted and died from mesothelioma or asbestos related lung cancer as a result of occupational exposure, be required to comply with the provisions of clause 11.2.3.2 in order to satisfy the Trust that:

• the deceased had employment in a Qualifying Operation and

• in the case of claims made on behalf of persons who contracted mesothelioma or asbestos-related lung cancer as a result of environmental (non-occupational) exposure and died as a result , be required to comply with the provisions of clause 11.2.3.3 in order to satisfy the Trustees that the deceased had environmental exposure;

  • The same principles of apportionment set out in 11.1.3 will apply to the apportionment of exposure to asbestos dust as between Qualifying Operations and non-Qualifying Operations;

In the case of any claim (environmental or otherwise) based on the development of mesothelioma or asbestos related lung cancer, no account shall be taken of any asbestos dust exposure in the 10 (ten) years prior to death.

Terms of any award

A Qualifying Claimant who has been paid an award for asbestosis or pleural thickening and who is subsequently diagnosed with mesothelioma or asbestos related lung cancer, or the Dependants of such a person who has died and a cause of death was mesothelioma and/or asbestos-related lung cancer may re-apply for the higher level of award associated with mesothelioma or asbestos related lung cancer (as the case may be) and, if all of the qualifying criteria are met, then (subject to 11.2.2 in the case of Dependant Claimants) will qualify to be paid the difference between the higher award (at the time of their re-application) and the award which the Qualifying Claimant had previously received for the less serious form of ARD. In the case of any re-application under the provisions of this clause, a Qualifying Claimant will not be required to (again) furnish evidence of exposure to asbestos dust;

Save for the provisions of clauses 12.1.2, 12.1.3, 12.1.6 and 12.1.7 all awards will be once-off lump sum payments, and no claimant may be paid more than one award by the Trust;

All awards for general damages made by the Trust will be based on lung function impairment.

• In the case of mesothelioma and asbestos related lung cancer, the lung function impairment shall be deemed to be 100%;
• in the case of asbestosis and pleural thickening, two categories of lung function impairment shall be recognised – a condition which results in lung function impairment of between 10% and 40% and a condition which results in lung function impairment of 40% or greater.

Clause 12.1.9 states that save for Qualifying Claimants with mesothelioma and/or asbestos related lung cancer, the Trustees must apportion any award in respect of both general and special damages having regard, inter alia to:

• other asbestos dust exposures (i.e. exposure to asbestos dust other than from the Qualifying Operations and/or before and/or during and/or after the Qualifying Period unless, in the case of Occupational Claimants, that exposure is environmental exposure derived solely from a Qualifying Operation); and
• other non-asbestos related lung disease which may have contributed to the lung function impairment (i.e. tuberculosis, the effect of smoking/emphysema, silicosis and the like).

In apportioning the awards as referred to in clause 12.1.9, the following principles (together with any other principles which the Trustees may deem appropriate) shall apply:

• the contribution (expressed as a percentage) which any non-asbestos related lung disease has made to the lung function impairment, shall be deducted from any award; and
• the contribution (expressed as a percentage of overall exposure), which asbestos dust exposure other than at a Qualifying Operation has made to the lung function impairment shall be deducted from any award.

In making any award the Trustees shall deduct from special damage, or from the amount of any standard award relating to special damage any amount which has been received by the Qualifying Claimant under the provisions of either of the ODMWA or the COIDA (or any successors thereto), or the amount to which the Qualifying Claimant would be entitled under either ODMWA or COIDA.

The Trustees shall also deduct from special damage or from the amount of any standard award relating to special damage, any amount which has been received by the Qualifying Claimant by way of insurance, medical aid or other medical payments relating to the ARD and/or its treatment, palliative or otherwise, to which their claim relates.

Subject to the payment by Gencor and/or Gefco and/or Msauli of their respective Settlement Amounts, the Trustees shall ensure that no award is made to any Qualifying Claimant unless and until the said Qualifying Claimant has furnished and signed a written agreement and undertaking of release and discharge (in the prescribed from) in favour of the party/ies (and it/their Group) that has made payment.

Clause 11.1.3: Qualifying Claimants who have contracted an ARD with lung function impairment (other than mesothelioma or asbestos related lung cancer) and who the Trustees are satisfied were exposed to asbestos dust at any one of the Qualifying Operations partly during the Qualifying Period and partly outside of that period will be entitled to receive awards from the Gencor Settlement Amount and the Gefco / Msauli Settlement Amount on an apportioned basis. The Trustees, in apportioning the award (and assessing the relevant contribution to be made from each of the amounts paid by Gencor and Gefco/Msauli to the Trust), shall have regard to the time any such claimant spent in occupation at a Qualifying Operation during the Qualifying Period and any periods spent in occupation either prior to or after that period, as well as the levels of asbestos dust and/or fibre to which those persons were exposed or were likely to have been exposed during those periods; for example and in relation to the time spent in occupation, if the qualifying claimant had a total exposure of 10 years, 4 of which fell during the Qualifying Period and 6 of which fell outside of that period, then, all other things being equal, the amount paid to the Trust by Gencor would contribute 40% towards the award and the amount paid to the Trust by Gefco/Msauli would contribute 60% towards the award.

Clause 12.1.2: A Qualifying Claimant who has been paid an award for asbestosis or pleural thickening and who is subsequently diagnosed with mesothelioma or asbestos related lung cancer, or the Dependants of such a person who has died and a cause of death was mesothelioma and/or asbestos-related lung cancer may re-apply for the higher level of award associated with mesothelioma or asbestos related lung cancer (as the case may be) and, if all of the qualifying criteria are met, then (subject to 11.2.2 in the case of Dependant Claimants) will qualify to be paid the difference between the higher award (at the time of their re-application) and the award which the Qualifying Claimant had previously received for the less serious form of ARD. In the case of any re-application under the provisions of this clause, a Qualifying Claimant will not be required to (again) furnish evidence of exposure to asbestos dust.

Clause 12.1.3: the Trustees shall review the operation of the Trust and payments made under it within 3 years of the commencement by them of payments other than provisional payments to mesothelioma and asbestos-related lung cancer claimants. They may, if that review warrants it, make further payments to those who have so far been paid a sum to provide total payments to those persons at a gross level not in excess of the equivalent level at which payments are thereafter set. Any further payment shall be in the absolute discretion of Trustees and there shall be no obligation on them to make further payments even if they resolve to make increased payments thereafter.

Clause 12.1.6: Notwithstanding 12.1.1 above and in the period referred to therein, a person suffering from mesothelioma or asbestos related lung cancer who the Trustees are reasonably satisfied is a Qualifying Claimant shall be entitled to apply for a preliminary award in an amount, on terms and subject to criteria to be determined by the Trustees. A Qualifying Claimant who has been paid a preliminary award for mesothelioma or asbestos related lung cancer shall be paid a supplementary award if all of the qualifying criteria are met, amounting to the difference between what he or she would ordinarily be entitled to and the preliminary award which the Qualifying Claimant had previously received.

Clause 12.1.7: The Trustees shall be permitted in their sole and absolute discretion to make interim awards pending the determination of a claim, but only in the case of claims by living claimants whom the Trustees are satisfied, in accordance with the provisions of this Deed, suffer from mesothelioma and/or asbestos-related lung cancer. No payment/award will be made under this clause unless the person receiving the payment/award is alive at the date payment is made.