The Ministry of Justice has confirmed that the Government will not overturn a Law Lords' ruling that pleural plaques are not compensatable damage. It will, however, push through a range of measures to support people who have been exposed to asbestos, including those with pleural plaques.
Pleural plaques are small areas of scarring on the lungs that are benign and are an indicator of exposure to asbestos. Although they do not cause or develop into a more serious asbestos-related condition, they do signify an increased risk of developing mesothelioma (a form of lung cancer) because of exposure to asbestos.
Until recently, courts in England and Wales recognised that pleural plaques were potentially compensatable, and claimants who could prove their case were awarded damages. The position changed in October 2007 when the House of Lords held that compensation should not be paid to someone who has pleural plaques as a result of negligent exposure to asbestos. This was, it said, because pleural plaques are symptomless and cannot therefore give rise to an actionable claim. This effectively knocked out any claims by people diagnosed with the condition.
In July 2008 the Government launched a consultation on the most appropriate way to support people with pleural plaques in the wake of the ruling. The consultation closed in October 2008, but the Government has only now announced its response.
"On the basis of medical evidence received during the course of this review," said Justice Secretary Jack Straw, "we are unable to conclude that the Law Lords’ decision should be overturned at this time or that an open-ended no-fault compensation scheme should be set up."
"We are firmly committed to supporting people with asbestos-related diseases and intend to build on and extend the measures which we have already introduced in this area," he added.
These measures include:
- An extra-statutory scheme of fixed payments of £5,000 for individuals who had begun, but not resolved, a legal claim for compensation for pleural plaques at the time of the House of Lords ruling that ended the right to receive compensation.
- The creation of an Employers' Liability Tracing Office to help people who develop an asbestos-related disease to trace the relevant insurer and obtain full compensation.
- A Department of Work and Pensions consultation, currently underway, on the creation of an Employers’ Liability Insurance Bureau, which will act as a fund of last resort for sufferers of asbestos-related disease who cannot trace the insurance records needed to gain compensation.
- Increased upfront payments for mesothelioma sufferers and their dependents.
- A commitment to expand research in this area, including considering how best to establish a world-leading network of medical practitioners to research asbestos related disease, with government support for increased investment alongside £3 million of funding from the insurance industry.
- A working group of claimant solicitors, trade unions, insurers, the judiciary and civil servants to examine litigation practices and procedures for compensation claims relating to mesothelioma, and to identify options for streamlining them in order to reduce the time taken to conclude cases.
- Consideration of changes to the law to clarify the limitation period to bring a claim for mesothelioma, and resolve differences in claims settled before or after death.
- The Third Parties (Rights against Insurers) Bill, currently before Parliament, which aims to simplify the process of bringing claims against the insurers of companies which no longer exist.
The announcement was welcomed by the Association of British Insurers (ABI).
“The Government’s decision not to reverse the House of Lords ruling is the right one," said Nick Starling, the ABI’s Director of General Insurance and Health. " The House of Lords judgment reflects medical evidence that plaques are symptomless, have no impact on health, and do not develop into asbestos-related diseases, like mesothelioma. It also upholds the fundamental legal principle that compensation is payable when someone suffers symptoms following negligence, but not for exposure to a risk alone.”
The position in Scotland is very different, following the coming into force of the Damages (Asbestos-related Conditions) (Scotland) Act, which was passed by the Scottish Government in March last year.
This Act reverses the House of Lords ruling, and makes it possible for people in Scotland with pleural plaques to claim compensation. A judicial review of the Act by a number of large insurance companies was recently rejected by the Court of Session, although an appeal has been lodged.
A Private Members Bill along similar lines is currently making its way through the UK Parliament. It has now reached the House of Lords Committee stage (where there is a line-by-line examination of the Bill), with a hearing due on 5th March.
Our earlier coverage
"Closing the Gates" - Pleural Plaques are not compensatable holds the House of Lords
Extension to Pleural Plaques Bill
Pleural plaques consultation imminent
Pleural plaques bill passed
Pleural plaques bill goes to House of Lords
Court rejects pleural plaques challenge and Appeal follows
Employers' Liability Insurance Bureau
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