Silent killer

Asbestos, which was used extensively in power stations, ship building, house building and other sectors of industry in the 19^th and 20^th centuries, is made up of microscopic fibres which can be inhaled into a person’s lung. Such fibres can cause lung disease, which can often be fatal or seriously disabling. Asbestos disease often has a long latency period, sometimes as long as 50 years. This means that the number of victims is continuing to rise even though the actual use of asbestos in industry has drastically declined.

There are several common types of asbestos related conditions. Pleural plaques are one such condition and have figured prominently in personal injury litigation. Pleural plaques are a type of scarring on the lung. They can sometimes be a precursor to fatal asbestos related illnesses, for example mesothelioma.  However, pleural plaques are distinctive from other types of asbestos related conditions because in most cases they are symptom free. The person afflicted by pleural plaques will not experience any physical pain or suffering and in many cases will never become ill at all. However, the person afflicted may become very anxious about the possibility of developing an asbestos related disease in the future, so psychological harm may be caused.

This gives rise to a legal problem: assuming that the inhalation of asbestos fibres is the result of negligence (say by an employer), should persons suffering from pleural plaques be entitled to compensation for personal injury in the civil courts? On the one hand, pleural plaques are a diagnosable medical condition; those afflicted by them have undergone a physical change (scarring on the lung) and may, justifiably, be terrified of the possibility of worse to come. On the other hand, no actual physical pain and suffering is associated with the condition, and therefore, some argue, how can pleural plaques be said to constitute an ‘injury’?

The Law Lords grappled with this question in 2007 in the case of Johnston v NEI International Combustion Ltd ([2007] UKHL 39). Before the Johnston ruling, victims of pleural plaques, assuming they could prove negligence by their employer, would typically receive damages of around £5,000 together with an order for provisional damages to enable the claim to be reopened  in the event of a subsequent deterioration into a more serious asbestos related illness. However, the Law Lords concluded that asymptomatic pleural plaques do not signify damage or injury that is sufficiently material to found a claim for damages in tort, and therefore do not give rise to a cause of action.The ruling deprived thousands of victims of pleural plaques – all of them with a diagnosable medical condition and many of them living day by day with the real fear of more serious illness - of the possibility of compensation. The ruling was welcomed by insurers, who profited from the decision to the tune of around £1.5 billion, but caused consternation amongst asbestos victim groups and trade unions. Since the ruling, compensation for victims of pleural plaques has become a major campaigning issue for the trades unions.   

The trades unions have pressed the government to introduce legislation to overturn the Law Lords’ judgement. The government has consulted on the issue but has yet to state its position, despite the Prime Minister recently telling the House of Commons  that “it is important that we get a resolution soon“. Government ministers have made different noises at different times, but the impression given is of reluctance to legislate, perhaps for fear of offending the insurance companies. 

At the same time, various attempts have been made by backbench MPs to push the issue.  The most recent effort is the Damages (Asbestos-related Conditions) Bill, which was introduced as a private members bill by Andrew Dismore MP. The bill would have returned the right to compensation to pleural plaques’ victims denied by the Law Lords ruling.

The bill went through the House of Commons, but last month ran out of parliamentary time, having only managed one reading in the House of Lords before the end of the parliamentary session.    An identical new version was introduced in the House of Lords on 19th November 2009. Meanwhile, the devolved assemblies in Scotland and Northern Ireland are already well ahead of the Westminster parliament in addressing the issue. The Scottish Parliament has already overturned the House of Lords ruling by passing the Damages (Asbestos-related Conditions) (Scotland) Act 2009 in March 2009, which is essentially the same as the Dismore bill in England. The Northern Ireland Executive indicated in July 2009 that it intends to legislate in a similar fashion for those affected in Northern Ireland.

Two issues should weigh on the government’s mind as it decides how to deal with this problem. Firstly, the mental suffering experienced by many thousands of victims of pleural plaques, who have to live every day with the knowledge that they have what may well be the first stage of a seriously disabling or even fatal illness – a predicament that in any fair system would entitle them to compensation. The second issue is equitable treatment of workers across the UK. It would be perverse for pleural plaques’ victims in England and Wales to be denied a remedy in damages available to those in Scotland and Northern Ireland. So the British government should now legislate without delay for fair compensation for victims of pleural plaques. 

Richard Scorer, Head of Personal Injury Pannone LLP (article first published in New Law Journal). For more articles by Richard Scorer in New Law Journal, click here