Clause 1

Damages (Asbestos-Related Conditions) Bill – in a Public Bill Committee at 9:30 am on 1st July 2009.

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Pleural plaques

Question proposed, That the clause stand part of the Bill.

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

Most people in the House know that, for 20 years before I entered Parliament, I was a personal injury lawyer. I suppose that I still am—once a lawyer, always a lawyer. I still have my practising certificate, but I do not take cases. I remain a consultant with my law firm, and people will know exactly how much I get next month, having had to declare it.

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

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.

Photo of David Howarth David Howarth Shadow Secretary of State for Justice

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.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice 9:45 am, 1st July 2009

It is a pleasure to serve under your chairmanship, Mr. Bayley. Before I comment on clause 1, I say to the Committee that we have been dealing with this issue for some time. I am beginning to lose count of the number of debates on pleural plaques to which I have replied.

The main focus of the clause is about providing compensation for pleural plaques. The Government recognise the legitimate grievance that exists on that issue, particularly for those whose claims for pleural plaque compensation could not proceed as a result of the decision by the House of Lords. They had a genuine expectation that compensation would be available, but that has now been denied to them.

When compensation was payable, people who were diagnosed with the condition were then able to establish the liability of their employer for negligent exposure to asbestos. That gave them the opportunity to get swifter compensation at a later date if a more serious asbestos-related condition developed. That benefit has now been lost as a result of the House of Lords decision. In recognition of those concerns, we carried out a consultation exercise on pleural plaques. That consultation proposed action to improve the understanding of pleural plaques, and to provide support and reassurance to those who have been diagnosed with them, to help allay their concerns. It also considered the issues that arise in relation to changing the law of negligence, and we invited views on whether that would or would not be appropriate. As my hon. Friend the Member for Hendon said, we sought views on the merits of offering no-fault financial support to people diagnosed with pleural plaques, and suggested two possible ways that that might be achieved.

In publishing the consultation paper, we emphasised the importance of ensuring that any decision taken by the Government had to be reached on the basis of the best available current medical evidence. For that reason, we asked the chief medical officer and the Industrial Injuries Advisory Council to review the medical evidence during the consultation process. Published copies of those reports are in the Library, and I hope that they are available to members of the Committee and to other hon. Members.

Photo of Jim Sheridan Jim Sheridan Labour, Paisley and Renfrewshire North

The Minister will be aware that the Scottish Parliament has recently overturned the decision to award compensation to people in Scotland. I work on the assumption that it also received medical advice. Does the Minister have any access to that medical advice, and will she make it available to the Committee?

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

I do not have direct access to that advice. The Scottish Parliament listened to medical experts at oral hearings. My understanding is that those experts came to the same conclusion as the chief medical officer and the Industrial Injuries Advisory Council, but that they made no comment about whether the Parliament should make a decision on allowing compensation. If I can get recorded evidence of those discussions, I will make it available to the Committee and the wider parliamentary estate.

Let me set out a couple of the key findings in the two reports. The reports demonstrated a consensus on a number of important issues relating to the medical nature of pleural plaques. For example, it is generally accepted that although a diagnosis of pleural plaques confirms that a person has been exposed to asbestos, pleural plaques do not, in themselves, produce any significant change or loss of lung function, and are unlikely to cause physical symptoms. I shall come to what the hon. Member for Cambridge said about psychological issues.

Pleural plaques do not become malignant or lead to mesothelioma, or other asbestos-related diseases. Any increased risk of a person with pleural plaques developing an asbestos-related disease arises not because of the pleural plaques, but because of that person’s exposure to asbestos. We are particularly keen to address that point.

The hon. Gentleman makes a fair point about the issue of psychological and psychiatric illnesses. I know that he raised it before, in the case that was also overturned by the House of Lords. The courts have established the parameters governing claims for psychiatric illness, and my understanding is that Mr. Grieves’ case was decided according to those principles. We prefer the courts to continue to develop the law in that area and we are publishing a consultation paper—a response paper—today on damages, which reflects that position. The hon. Gentleman may well want to come back to me once he has read it.

I emphasise that we are still considering what our response to the issue should be in light not just of the reports I have mentioned, but of all the other evidence that has been presented to us. As my right hon. Friend the Justice Secretary indicated recently, we are committed to publishing our response before the summer recess. We recognise fully that those conclusions will have to address the grievances that have been outlined by my hon. Friend the Member for Hendon and the hon. Member for Cambridge, and be made in the context of the medical evidence and other submissions.

The Bill represents one approach to the issue, but a number of other approaches could be appropriate and we want to assess the best response. It is therefore not possible at this stage to give a firm indication of the Government’s position on the Bill, pending those conclusions being reached. For that reason it has not been possible for me to table any amendments for consideration at this stage.

On that basis, if the Committee decides that this clause—and the others—should stand part of the Bill, it may be necessary for the Government to oppose it, or table amendments to it, at a later stage.

Photo of David Anderson David Anderson Labour, Blaydon

The hon. Member for Cambridge spoke about people going for compensation and being told by the courts that depression was not an issue that they could rule on, so they could not get compensation. I have to tell the Committee that I am massively depressed by having to keep coming back to the issue—we have been listening to the debate for nearly two years.

I am depressed when I think that civil servants told solicitors that I have been working with on this issue that pleural plaques are no more serious than freckles.  I am depressed that in real life, people like Bob Chaplin from Gateshead lost his wife, who was our mayor, this year. I am depressed that I have to keep going to fundraisers organised by people like Anne Craig, who lost her husband. People such as Chris Knighton do tremendous work to raise money, when what they should be doing is enjoying retirement, but they cannot because their husbands have died of an asbestos-related disease.

I am depressed that no one from the Conservative party could even be bothered to come here today to give support, or argue against what is being said here.

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

In fact, the Conservative party was going to attend in the guise of the hon. Member for Epping Forest (Mrs. Laing). Unfortunately there was a mix-up on the appointment to the Committee. The hon. Lady was to be substituted for the hon. Member for North-West Norfolk (Mr. Bellingham), but it was not done properly. I have spoken to the hon. Lady and she has indicated that, in principle, the Conservative party is content for the Bill to go through. I think that it was a mix-up rather than a deliberate desire to ignore the Committee.

Photo of David Anderson David Anderson Labour, Blaydon

I thank my hon. Friend for that intervention. I am slightly less depressed—I do not know what the alternative to being even more un-depressed is. I was pleased that my hon. Friend the Member for Midlothian (Mr. Hamilton) was so interested in the debate that he came into the room when he was not even serving on the Committee—that is how supportive he is on the issue.

But the truth is, I am more depressed than anything else by the fact that we have to come here today and listen to my hon. Friend the Member for Hendon, because it should not be him who is coming here to hold the debate—it should be the Government. Time and again, we have been told by our Government, by the Prime Minister, by the Secretary of State and by the Chancellor that, “Yes, the issue will be resolved.” But it is not resolved, and it still does not look like it will be resolved.

Photo of Linda Gilroy Linda Gilroy Labour, Plymouth, Sutton

Is my hon. Friend also depressed by the fact that, at the moment, those who discover that they have pleural plaques, and then go on to discover that they have a more serious disease, have the additional hurdle of having to prove that the employer is responsible? That is one of the most worrying aspects of the whole issue.

Photo of David Anderson David Anderson Labour, Blaydon

I thank my hon. Friend for that intervention. Of course, it is about people who are in a desperate state, having to go through all the legal and medical hoops to try to get their just deserts. The real issue, at the bottom of all this, is that none of this was made by God; it was made by man. People knew what they were doing; they knew that they were poisoning people at work; and they knew that they were not looking after people properly. They also know, every time they go to court and win, that they are escaping their just deserts. They should be looking after the people who they have poisoned deliberately and criminally. But it looks again as if they are getting off the hook today, and that is totally out of order.

The Minister said that we have lost count of the debates that we have had on the issue. She is right, but I ask her: have we lost count of the people who have died as a result of the issue since we started talking about it in October 2007? Have we lost count of the people who have been refused compensation? We should not do that. What we should do is stop looking for the middle way and behaving like the new Labour Government that have let the people down. We should start acting in the interests of our class, because this is a class issue—it is the people who have done the work who, in the main, have suffered as a result of asbestos. So I say to the Minister today: support us on the Bill and get on with the real job. If there are flaws in the Bill and if what the hon. Member for Cambridge said is still an issue—I recognise and acknowledge the work that he has done on the issue over a long period—put it right, and put it right now.

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

Working backwards, I agree with what my hon. Friend the Member for Blaydon has said. The issue has indeed gone on an awfully long time—three years since the House of Lords judgment—and it is necessary to have it resolved. I am grateful to my hon. Friend the Minister for making it clear that the Government will announce before the summer recess how they intend to proceed. My Bill may not be perfect. It will come back on Report in October if it gets through the Committee today, and I am quite happy to work with my hon. Friend on amendments to the Bill if we can come up with a solution we can all agree with.

Frankly, I do not think that there is a great deal of dispute about the medical evidence. Pleural plaques are asymptomatic. They carry a risk of 5 to 10 per cent. of developing into one of the more serious asbestos-related conditions, and they cause considerable anxiety and, often, recognised psychiatric injury to those who have them. I do not think that there is a great deal of dispute about that. The question is: what do we do about it?

I should mention, as I did in an intervention on my hon. Friend the Member for Blaydon, that although the Conservative party is not present in the body of the Committee, they are, in the shape of the hon. Member for Epping Forest, observing the proceedings closely from the Gallery. I am sorry that she is not able to participate, because she made a useful contribution on Second Reading.

I am grateful for the substantive points made by the hon. Member for Cambridge, because they are important. In particular, he mentioned the case of Grieves v. Everard, which I am familiar with. He is right to say that the law is very bad when it comes to looking at psychiatric damage. For any physical injury, we apply subjective tests, but for psychiatric damage, it is an objective test. There is no logical reason for that—it goes back into the mists of time, when we had the old nervous shock cases before the second world war. It has been a long, hard battle to get psychiatric injury established.

I think I am right in saying that I fought and tried the very first case of post-traumatic stress disorder, as it became known, in the 1980s. We had a sympathetic judge who commented in the judgment that psychiatric injury was significantly under-compensated, and he gave us a pretty good award within the framework of the compensation rules at the time. Perhaps next year I can  work with the hon. Gentleman on another private Member’s Bill to try to put some of these things right, but that is not the substance of what we are discussing today.

The hon. Gentleman asked about the wording “asbestos-related”. This is an issue not of causation but of definition. The wording arises in subsection (3), which mentions “asbestos-related pleural plaques”, and I suppose that it could say “asbestos-caused pleural plaques”, but I think that the point is definitional rather than causative.

The substantive point that the hon. Gentleman raised was about quantum, about which he is right. It is still an issue and it should be an issue for the courts, as it is not right for us to legislate as to what quantum should be. The hon. Gentleman also made some important points about anxiety, but that issue has been dealt with in the courts. In the Rothwell case, the Court of Appeal delivered a unanimous judgment on what quantum would have been had actionability been established. The courts often do that, Mr. Bayley; they put your case down and then tell you what you would have got if you had won. It is extremely annoying. The worst example of that I have seen was when Lord Judge, then Mr. Justice Judge, tried the case, kicked us out and said that if I had won, the client would have got £70,000. The client was not at all amused; he would rather not have known.

That is a habit of the courts, and in the Rothwell case, the Court of Appeal delivered a judgment of what quantum would have been, based on a review of the county court and High Court decisions of the previous 20 years. Also, the House of Lords has held that if the claimant has suffered more than minimal damage, they are entitled to recover for psychiatric consequences, including anxiety and psychiatric harm that constitutes a recognised diagnosable psychiatric condition. I think that is the point that the hon. Gentleman made. The Bill confirms that pleural plaques are actionable, so compensation for psychiatric consequences would follow. In the Rothwell case, provisional damages were assessed at £6,000 to £7,000.

Full and final damages take into account contingent financial risks in addition to the award for anxiety—that was dealt with in a case called Hindson, which went to appeal and was remitted by the Court of Appeal to the High Court for determination of damages. In the full and final settlement, damages were £20,000. Actionability was not in issue in that case, because it concerned only the principle of assessment of quantum where the claimant elected for full and final damages rather than provisional damages. We already have case law that deals with the problem on a contingent basis should pleural plaques have been actionable. I hope that that answers the hon. Gentleman’s points.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Photo of Hugh Bayley Hugh Bayley NATO Parliamentary Assembly UK Delegation

Perhaps it would help the Committee if I said that we have had a fairly broad, Second Reading-style debate on clause 1, and that the subsequent clauses are pretty narrow, so I shall be a strict Chairman. That is not because of any wish not to debate the issue—my constituency is a railway constituency with a very high incidence of asbestos-related diseases that  obviously came from a former carriage works—but because there is a severe shortage of Committee time for private Member’s Bills. As the Chair, I think it my duty to help Members to make progress with their private Member’s Bills in the limited Committee time available. Without wishing to prevent any Member from speaking about the matters in the subsequent clauses, I hope that we will make some good progress.