Clause 1
Damages (Asbestos-Related Conditions) Bill
9:30 am
Andrew Dismore (Hendon, Labour)
It is not a great deal.
As a result of my experience, I have maintained a keen interest in the development of personal injury law, and one of the issues that has been around for three years is compensation for pleural plaques—or, as the law stands, the lack of it.
Pleural plaques are a thickening of the lining of the lung, which is usually visible on an X-ray or a CT scan, and are caused by exposure to asbestos. They represent an increased risk—between 5 and 10 per cent.—of more serious asbestos-related diseases and, because of that, pleural plaques cause real anxiety and stress for those who have them. It is hard to imagine someone’s fear if they are at risk of developing a disabling illness, such as mesothelioma, which is painful and always fatal.
Until recently, pleural plaques were compensated at common law. Since 1984, there have been a series of cases mainly against the Ministry of Defence, the leading one being Church v. Ministry of Defence, when it was decided that the condition constituted an injury, enabling damages to be claimed. The amount of compensation has varied from up to about £7,000 down to between £3,000 and £4,000 for provisional damages, and as high as £15,000 for full and final settlement of a claim.
In the 2006 case of Rothwell v. Chemical and Insulating Company Ltd, the Court of Appeal found that pleural plaques are not compensatable, mainly on public policy grounds. The Court refused to aggregate the condition of pleural plaques with the anxiety and distress that they cause, deciding that each individual condition is not compensatable and that courts cannot look at the aggregate of both pleural plaques and the psychological conditions that they cause.
In autumn 2007, that decision was upheld by the House of Lords in Johnston v. NEI International Combustion Ltd. In fact, it was a consolidated appeal, including the Rothwell case, with the House of Lords deciding that pleural plaques were not compensatable. The Government held a consultation, which ended in October last year. We are still awaiting the outcome of that consultation, which included three different options: a no-fault payments scheme, presumably funded by the taxpayer, only for historic cases prior to the House of Lords ruling; a general no-fault scheme, which would relate to historic cases and those in the future; and a return to the common law scheme. The Government have so far not made their position clear about which they want to do.
Clause 1 is the meat of the Bill. It is modest. All the Bill seeks to do is to turn back the law to what we all thought it was prior to the decision in the House of Lords. It relates purely and simply to pleural plaques. It maintains the basic principles of negligence or breach of statutory duty as the test for liability. Causation and the burden of proof that the claim exists are still on the claimant.
The clause simply states that pleural plaques are a personal injury constituting actionable damage and that people may recover damages in respect of them, but nothing affects the normal operation of the rule of the law of negligence and breach of statutory duty. I hope that the clause will find favour with the Committee.