First published in The Gazette, 6 March 2008, "Take the High
Road".
There is currently a grave crisis over compensation for
sufferers of pleural plaques, a scarring of the lining of the lungs
caused by exposure to asbestos. It has arisen from the House of
Lords’ judgment last autumn, in Johnston v NEI that such plaques do
not constitute a compensatable injury. This followed a period of
over 20 years in which many with pleural plaques recovered damages
that typically fell in the range of £15,000 to £20,000. This is
hardly the mark of a “trivial” condition.
There are many reasons for reversing their Lordships’ decision
but the recent announcement by the Scottish Government that people
with pleural plaques will be able to seek compensation in Scotland
requires particular attention. In Westminster, Bridget Prentice MP
said that “if a Scottish Parliament finds a way of dealing with it,
we will examine that very carefully. I agree that it will be
unacceptable in such a situation for people in one part of the
United Kingdom to receive compensation and others in another part
not to do so. That would be inequitable.”
Indeed it would. It should be inconceivable for there not to be
parallel legislation in England and Wales, and would cause intense
outrage to the Government’s very own supporters. Such a situation
would throw up absurd anomalies and raises the spectre of
cross-border litigation on abstruse and difficult questions of
international law. Companies that operated on both sides of the
border would have to pay compensation to its employees North of the
border but not to those who worked to the South. The aggrieved
Southerners would seek to rely on the doctrine of forum conveniens
to have their claims tried under Scottish law, since they are
denied a remedy in England.
But there are more important issues at stake than the uniformity
of law across Scotland, England and Wales. The decision of the
House of Lords overturned 22 years of case law, and sparked outrage
from asbestos campaigners and politicians.
The view of the Lord Chief Justice in the Court of Appeal was
that it was better to wait for the proportion of pleural plaques
sufferers who go on to develop lung cancer or mesothelioma to do
so, and then obtain compensation for their illnesses. However,
these diseases are so aggressive that a lifetime settlement is
often unobtainable. For the third of claimants who are bachelors,
divorced or widowed, the compensation is savagely reduced by the
Law Reform (Miscellaneous Provisions) Act before passing wastefully
as a windfall to their heirs. For the others, it is left to the
bereaved widows and children to pursue the claim.
Those who were subjected to heavy occupational asbestos exposure
have collective experience of the threat and reality of
mesothelioma and lung cancer. For them: the diagnosis of pleural
plaques is no “symptomless” affair. For them it is “the beginning
of the end” even if they do not eventually go on to develop an
asbestos cancer. For many the airing of a grievance, an admission
of liability and an award of compensation provides an important
element of closure and of psychological healing. The availability
of provisional damages meant that pleural plaques victims could
obtain this closure whilst still preserving their entitlement to
full compensation if they went on to develop an asbestos cancer.
That right is now denied and for that reason their Lordships’
decision is an injustice.
There really is no good reason not to legislate. It will cost
the Government and the tax payer nothing. The effect of such a
statute is that insurers who have received the premiums will resume
paying damages, as they have done for over 20 years
The House of Lords has stated the law. It is well known that on
occasions the law and justice diverge. Wise governments reconcile
them again, and that is what is required of this government
now.
Andrew Morgan is a Partner in the
Personal Injury Group at Field Fisher
Waterhouse LLP, and specialises in asbestos
claims.