26 Feb - Right to damages for pleural plaques ruled out

Friday, 26 Feb 2010

People with pleural plaques – small, symptomless areas of fibrosis
found in the lung,  caused by exposure to asbestos – will not be able
to claim compensation, the Government confirmed today (25 February).

A Law Lords’ ruling in October 2007, which upheld a Court of Appeal judgement that the existence of pleural plaques does not constitute actionable damage, caused huge controversy, leading the Government to publish a consultation paper to assess whether it should overturn the judgement, or pursue other options to support people diagnosed with the condition.

While the Government has been considering its response to the consultation, which closed in October 2008, the Scottish Parliament passed the Damages (Asbestos-related Conditions) (Scotland) Act 2009, which makes pleural plaques a compensatable injury north of the border.

Announcing the decision not to follow Scotland’s approach, Justice secretary Jack Straw said: “On the basis of medical evidence received during the course of this review, including authoritative reports from the Chief Medical Officer and the Industrial Injuries Advisory Council, 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.”

A spokesperson for the Ministry of Justice told SHP: “The medical evidence is clear that while pleural plaques are a marker of exposure to asbestos, they are generally symptomless, are not harmful, and do not become harmful. Any increased risk of a person with pleural plaques developing an asbestos-related disease arises because of that person’s exposure to asbestos rather than because of the plaques themselves.”

However, in what it regards as a “unique situation”, the Government has promised to award a payment of £5000 to those individuals who had already begun, but not resolved, a legal claim for compensation for pleural plaques at the time of the Law Lords’ ruling.

It has also announced a number of other measures to assist those with asbestos-related diseases. These include, among other things:

• 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;
• consultation, already underway, on creating an Employers’ Liability Insurance Bureau to act as a fund of last resort for sufferers of asbestos-related disease who cannot trace the necessary insurance records to pursue a claim; and
• a working group of claimant solicitors, trades unions, insurers, the judiciary and civil servants to examine litigation practices and procedures for mesothelioma compensation claims, and to identify ways to reduce the time it takes to conclude cases.

UCATT and the TUC welcomed the extra measures of support but expressed disappointment at the decision not to reverse the Law Lords’ ruling. Alan Ritchie, general secretary of UCATT, said: “The Government’s decision is disappointing – most pleural-plaques victims are being abandoned. It is simply wrong that an accident of geography will mean that pleural-plaques victims in England and Wales will be barred from receiving compensation but those in Scotland will be free to claim full compensation.”

But the Association of British Insurers felt the decision was vindicated. Said its director of general insurance, Nick Starling: “The House of Lords judgement 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.”

In a further conciliatory move by the Government, lump-sum payments from the 2008 Mesothelioma Scheme will also increase by around 40 per cent from April to the same level as those paid under the Pneumoconiosis etc. (Workers’ Compensation) Act 1979. This will mean that individuals who develop mesothelioma from asbestos exposure outside the workplace will receive the same payment as those exposed at work.

People who currently receive the minimum payment of £8197 from the Mesothelioma Scheme will see this rise to £11,678 in April, while the maximum payment will rise from £52,772 to £75,176.

DWP minister Bill McKenzie said: “We recognise the terrible effects mesothelioma can have on families, who have to cope with the effect of the disease on their loved ones, witnessing their pain, suffering and, ultimately, their death. They will now receive an extra amount to help them through these extremely difficult times.”

Source: SHP Feb 2010