Clause 1
Damages (Asbestos-Related Conditions) Bill
9:30 am
David Howarth (Cambridge, Liberal Democrat)
It is a great pleasure to serve under your chairmanship, Mr. Bayley. As the hon. Gentleman confessed, once a lawyer always a lawyer. I was an academic lawyer in precisely the same field. Just as his earnings might well be revealed this month, my rather pathetic royalties from various works in the field will soon be revealed as well. I have a few questions, which the hon. Gentleman might be able to answer, or the Government might, if they are to come up with a comprehensive scheme to solve the problem.
The clause operates by declaring—deeming—pleural plaques to be a personal injury constituting actionable damage. The object of the exercise is to make sure that pleural plaques cases do not fail on the grounds that they do not meet one of the most important tests in a negligence case, which is that there is legally actionable damage. Damage is the gist of a negligence action; no one can sue for negligence unless there is legally recognised damage. That is one of the most important principles of the law. The clause ensures that, regardless of what the House of Lords said in the Johnston case, a pleural plaques case will meet that test.
Hon. Members know that I have been particularly concerned about one aspect of the House of Lords decision in the pleural plaques case, which the hon. Gentleman has not yet dealt with. I want to put on the record that I am still worried that his solution does not obviously solve the problem that I have in mind, which is the problem in the Grieves v. Everard case. That was a pleural plaques case, but with an extra element, which should have made the case more easy for the claimant to win than other cases. That extra element was that the victim was suffering from a recognised mental illness as a result of the pleural plaques that had been discovered in his lungs.
The law on psychiatric damage is extremely confused and is hostile to claimants, which is completely at odds with modern views about mental illness—as I explained in a Westminster Hall debate that we had on the subject, so I do not want to go into details again. The hostility of the courts towards psychiatric illness goes back to a time when not everyone was convinced that mental illness had reality and when people believed that mental illness could easily be faked. That hostility is completely inappropriate now, in an era when we fully recognise that mental illness is illness. Someone with depression is just as ill as someone with a broken leg.
In the Grieves case, however, that hostility to claimants with psychiatric illness continued in the House of Lords. Mr. Grieves was told that he could not claim, for a variety of reasons, one of which amounted to saying that a person of ordinary fortitude would not react to being told that they had pleural plaques in such a way as to cause them depression. I find that rather difficult to follow, because that was what happened in reality. The judgment seemed to be blaming the victim. If someone suffers an ordinary injury and it turns out to be worse than expected because of some pre-existing condition of the victim, the victim does not have compensation reduced. The defendant, whose fault the whole thing was, has to take the risk of that extra injury. The ordinary fortitude rule seems to be unfair.
In addition, there was a notion that the real problem was that the doctor had told Mr. Grieves that he had pleural plaques and somehow it was the doctor’s fault that the victim developed psychiatric illness, which again seems extraordinary. It was the employer who exposed the victim to asbestos. It cannot really be unexpected that a doctor would tell a victim of a condition.
There was also a sense that there was no stressful event caused by the employer but that the stressful event was caused by the doctor or the victim himself. All those notions are hostile to victims who have a perfectly valid claim. I am simply concerned about whether clause 1 helps victims in those circumstances, because subsection (1) says:
“Asbestos-related pleural plaques are a personal injury which constitute actionable damage.”
It does not mention psychiatric illness.
There are a number of possible relationships between the concept of personal and psychiatric injury, which the courts have explored over the years, and the law is not entirely clear. One view is that psychiatric illness is simply a form of personal injury. When I was an academic, that was the view I tended to take, but it is not the view that the courts have taken over the years. Some courts have tended to separate personal injury and psychiatric illness to a great extent, so I am not sure that clause 1 would solve the problem in the Grieves case. I hope that when we get to a final answer, we will address the problem of Mr. Grieves. That is my fundamental point.
I want to make one or two other points about clause 1. As the hon. Member for Hendon said, the object of clause 1 is to leave the general law of negligence alone and simply deal with the one specific point of the actionability of pleural plaques. I am grateful for that, because a difficulty in this area is that the law of negligence is a very delicate flower. We do not want to upset the whole thing and interfere with how it works just by accident, by trying to solve a particular problem. He has not quite got over the problem of causation, as one would hope, because he has used the phrase “asbestos-related”, and we still need to think about how a cause is liable to work in that context. More important than that, he has not addressed the question of damages—how much compensation someone would get. He has deliberately left that alone and I want to ask him what he expects the measure of damages to be under his clause.
The hon. Gentleman referred to taking the law back to where it was before the House of Lords decision, but the law before that decision assumed that pleural plaques were actionable, not just because an Act of Parliament said that they were, but because there was an assumption that there was some sort of actionable damage at common law. If we take away that assumption, the courts will start again and will be looking at the law anew. They will not be going back to the previous law in terms of the amount of compensation; they will be thinking about it from the start.
There is a question about the extent to which anxiety will be a part of the measure of damage. In ordinary law, pure anxiety—pure emotional distress—is not recoverable. One cannot get damages just for distress. Distress, though associated with personal injury in some way—for example, with pain—attracts a degree of compensation, but in most pleural plaques cases there is no physical pain at that point of the disease, but simply anxiety about the fact that one has pleural plaques. I am concerned about whether the courts will go along with offering compensation for anxiety. If they do not, we could have a pleural plaques case in which there is no other disability at that point. Pleural plaques are an indicator that something might happen in the future, but most of the time, there is no disability at that point.
I am concerned that we will end up in a situation in which the courts say that something is an actionable loss because it is deemed to be so by clause 1, but there is no other way in which we can measure damages. The damages would therefore come out as either zero or nominal. I do not think that that is what the hon. Gentleman intends, so I want to get on the record what he does intend.