Response to the Pleural Plaques consultation of September 2008

The consultation process considers the option for restoring the right to compensation for pleural plaques which was removed by the Lords last year.

The Government consultation paper poses a number of questions. We shall respond to the first four questions only. The other questions relate to questions of epidemiology and for that reason fall beyond our remit.

1. Do you think that the proposal to raise awareness of the nature of pleural plaques will help allay concern?

2. What are your views on whether it would or would not be appropriate to overturn the Hosue of Lords’ decisionon pleural plaques?

3. Do you consider that no fault financial support for pleural plaques would be appropriate? If so, what would be the rationale for this? If not, please give your reasons.

4. If a no fault payment scheme were to be introduced 

a) Which of the above two schemes should be introduced, and why?

b) What level of payment would be appropriate?

c) How should the scheme be funded?

d) What limitation period should apply for each option?

1. Do you think that the proposal to raise awareness of the nature of pleural plaques will help allay concern?

We say it is right to raise awareness but we say a raised awareness will not allay concern.

Pleural plaques  are not just a marker for future risks of malignant disease but are themselves physical changes to the body brought about by asbestos exposure. For those who develop plaques they are a marker of mortality and confirmation that they have been injured as result of exposure to a potent carcinogen.

Never mind the statistics that the majority of sufferers do not go on to develop mesothelioma and never mind their Lordships' rather rarefied analysis of what it is that constitutes an injury, for the ordinary working man (as it usually is) the presence of pleural plaques tells them that they have not escaped the effects of asbestos expsoure.

It is to be remembered that the Government has hitherto been liable for the negligence of the MoD and previously nationalised industries. It is a significant player as an asbestos defendant. We believe proposals for a scheme from such quarters are likely to be met with a degree of scepticism.

Where pleural plaques are found the victim requires an accounting with the perpetrator. This provides closure. This accounting was until recently provided by means of an award of compensation. Parliament enacted a statute allowing a victim to claim provisional damages but the common law remedy has always been full and final damages. Until recently the victim  not only had a remedy but also had a choice as to the manner in which this remedy be exercised. That is now thrown away by their Lordships' decision.

2. What are your views on whether it would or would not be appropriate to overturn the Hosue of Lords’ decisionon pleural plaques?

We say that where the law and justice part ways, as here, it is the role of Parliament to provide justice when the law cannot.  It is right that the decision be reversed.

There is recent precedent for Parliament to overturn a decision of the House of Lords. S3 of the Compensation Act 2006 reversed the decision of the House of Lords in Barker v Corus.

Any person who before the Lords' decision in Rothwell developed pleural plaques would begin investigations and would take steps to obtain liability and medical evidence and details of the defendant's assets and insurance position. Such evidence would protect the claimant's position as to the future if, for instance, they opted for provisional damages.  Figures from the ABI suggest that in less than one third of requests is the ABI able to provide details of the insurer. If any scheme is introduced such investigations, since they will not be undertaken at the date pleural plaques develop but only later, will be delayed by years. This will make it more difficult to trace assets and witness evidence. The obvious consequence is that those who go on to suffer mesothelioma will go uncompensated and will become a significant burden on the State through reliance on unrecouped state benefits and the services of the NHS and local authorities.

Alternatively, prior to the Lords' decision, a claimant could bring a claim to the court on the presently available evidence and obtain a determination of all triable issues If successful he could then obtain an award of provisional damages and in the event that he were to develop mesothelioma (for instance) he would have protected his position - any subsequent loss of witness evidence would be of no consequence and there would be no additional hurdle to be overcome in relation to tracing the relevant insurers.

We are aware of the proposal of the Scottish Parliament to reverse the Lords' decision. If Westminster fails to follow suit this will create the bizarre situation where it will be possible for an English Claimant who was exposed in England to bring a claim against an employer that is Scottish or that has a presence in Scotland, but not vice versa.

3. Do you consider that no fault financial support for pleural plaques would be appropriate? If so, what would be the rationale for this? If not, please give your reasons.

A "no fault" scheme fails to provide the victim with the psychological "reckoning" they need since it divorces the remedy from the perpetrator. They will perceive the employers as having bought their way out of their responsibility.

4. If a no fault payment scheme were to be introduced:

a) Which of the above two schemes should be introduced, and why?

We say the decision of the House of Lords should be reversed. If the decision is not to be reversed then any scheme should as far as possible mimic the remedies perviously available through civil litigation. The second scheme, making payments to all victims, is to be preferred. The first scheme, denying any remedy for any but a small number of victims, is illogical and impractical as well as being unjust.

b) What level of payment would be appropriate?

Full civil damages with a choice of provisional or final damages, inlcuding damages for consequential losses of income in the past and in the future.

c) How should the scheme be funded?

It is inappropriate that any scheme should receive public funding save in relation to claims arising from the negligence of the Government and those organisations for which it is responsible e.g. the MoD, British Shipbuilders etc.

These claims relate to risks that are widely insured and for which the insurers have already received premiums. They should be glad to pay damages in full if there is a saving as to costs.

However, there is no guarantee that any no fault scheme, run properly on the basis of full compensation, would be any cheaper than the current system of civil litigation once the costs of the civil servants, support staff, buildings and infrastructure are accounted for.

d) What limitation period should apply for each option?

We do not see that there should be any limitation period at all. Certainly there is no compelling reason for a limitation period less generous than is provided for by the Limitation Act 1980. This provides a primary limitaiton period of three years with a  discretion to allow late claims to proceed. It is noted that in asbestos disease claims the courts almost universally allow late claims to proceed even when up to a decade out of time.

It should be made clear in any scheme that any application to the scheme, or any entitlement to make an application (i.e. the presence of pleural plaques and/or the claimant's knowledge thereof), does not prejudice the claimant's future rights. To be specific, whether or not any application is made, time must not run for limitation purposes in relation to any later civil claim for any asbestos disease.

Field Fisher Waterhouse LLP is a full service European law firm based in the City of London with 133 partners, over 200 other lawyers and nearly 300 support staff.

The firm has a wide-ranging client base. It includes listed and unlisted companies, multinationals, banks and other financial institutions, professional partnerships, trade associations and Government departments.

We have particular expertise in personal injury and clinical negligence claims.

We are perhaps the UK’s leading asbestos claims firm, having recovered over £100M in compensation for more than 1,800 Claimants and their families over the last 25 years.  We have perhaps unrivalled experience in acting in fatal disease and accident claims.

We are well placed to comment upon the Government’s proposals relating to the pleural plaques claims.

The Government consultation paper poses a number of questions. We shall respond to the first four questions only. The other questions relate to questions of epidemiology and for that reason fall beyond our remit.

For further information, please contact Andrew Morgan.