Lawyers were shocked at the House of Lords decision to end compensation for those suffering from the asbestos-related condition of pleural plaques. Jon Robins looks at the legal ramifications


Commentators have dismissively talked of pleural plaques sufferers as a sub-set of ‘the worried well’. After all, the condition, which the House of Lords ruled last month was not worthy of compensation, might be scarring on the lining of lungs and a sign of exposure to asbestos, but it is asymptomatic and does not itself lead to more serious asbestos-related conditions.



‘It’s an absolute scandal,’ comments Valerie Pask, a 55-year old mother of seven from Nottingham. ‘The government has known about the dangers of asbestos for years and did nothing while I watched my family die horribly.’



Asbestos-related illnesses have claimed the lives of six family members. ‘Valerie has plaques after she was exposed domestically,’ comments Adrian Budgen, head of the asbestos unit at national firm Irwin Mitchell. ‘She has already lost two brothers to mesothelioma, aged 45 and 50 years. Her mother and father died of asbestos-related illnesses and she has another sister with plaques.’



Mesothelioma is the terminal cancer of the lining of the lungs nearly always caused by asbestos exposure. Ms Pask believes she was exposed helping her mother wash her father’s dusty overalls when she was a child. He worked for asbestos insulation companies in power stations. ‘With a family history like that, you are going to be worried,’ Mr Budgen says. ‘She is a relatively young woman who has to live with this for the rest of her life. She has this horrendous sword of Damocles hanging over her head.’



The Law Lords refused in Rothwell v Chemical Insulation & Co the opportunity to overrule the appeal judges’ decision of January 2006 preventing sufferers from claiming damages. ‘Proof of damage is an essential element in a claim in negligence and, in my opinion, the symptomless plaques are not compensatable damage,’ ruled Lord Hoffmann.



Dominic Clayden, director of technical claims at Norwich Union, has said that the plaques challenge is about whether the ‘worried well’ should receive compensation. He argues that the medical evidence is that plaques ‘are totally asymptomatic and people with them, apart from a very small minority, have no physical awareness’. But he also argues there is important legal principle at stake. ‘There is a risk that by compensating anxiety in this case, it may apply to other issues, from mobile phones to GM crops.’



Martin Bare, president of the Association of Personal Injury Lawyers, declares himself ‘absolutely staggered that the Lords have dashed the hopes of these men who have been negligently exposed to asbestos’. He continues: ‘The ruling effectively tells them they have not been injured, yet their bodies had been invaded by asbestos and each day the clock is ticking. While the insurance industry will undoubtedly celebrate this financial victory, it has come at the expense of all those victims who have had faith in our justice system.’



‘I don’t think any of the judges have any concept of what it’s like to have the fear of knowing you have pleural plaques,’ comments Frances McCarthy, head of personal injury at Pattinson & Brewer and one of Mr Bare’s predecessors. ‘I can’t get my head around how you can have a scarring on your skin and that can be compensatable, but a scar on your lungs isn’t.’



The amounts of money paid for compensation have been, she reckons, ‘very modest’. The January 2006 ruling of the Court of Appeal slashed the full and final damages that could be awarded, pending liability, to between £5,000 and £7,000 from £12,500 and £20,000 received previously. ‘The insurers have been working very happily without drama or fuss for between 20 and 30 years,’ she says. ‘They have been perfectly happy taking their premiums for years and years, but when it comes to them having to pay out, they aren’t so keen.’



Politicians in Scotland have shared the concern of the unions, claimant lawyers, campaign groups and families expressed throughout the UK. The first minister, Alex Salmond, insisted the ruling did not apply north of the border. ‘As the ruling was in the context of an English appeal, it is not binding at the present moment in Scotland,’ he said.



Mr Budgen observes: ‘MSPs are pushing for legislation and it could create a two-tier system if Scottish claimants are compensated but English and Welsh aren’t.’



The claimant camp sees the plaques judgment as the latest in a series of attempts by insurers to evade liability in an attempt to cut costs through deploying technical arguments, and of course, ministers in England and Wales did step in recently to overrule the judgment by the Law Lords in the case of Sylvia Barker in 2006.



Five years ago in the notorious Fairchild case, insurers attempted to strike out thousands of claims from sufferers by arguing that responsibility could not be shared if more than one employer exposed a worker. The Lords did not uphold the argument. But last summer, insurers successfully argued in Barker that, if there was more than one employer, compensation should be split between them all. As some have now gone out of business or are impossible to track down, this would have meant some families missing out on part or all of their compensation.



Alarmed at this prospect, ministers stepped in to protect ex-workers by amending the Compensation Bill, which was then going through Parliament. ‘I haven’t seen any similar calls from English MPs,’ comments Mr Budgen. ‘There isn’t the same sympathy factor for plaques sufferers because they aren’t dying or badly disabled, but I still feel that it is a shocking decision because the medical evidence is that if you have plaques, you have an increased chance of developing a malignancy in the future that is proven.’



The Law Lords did leave one small glimmer of hope when they debated whether sufferers might be able to sue for breach of contract. Claimant lawyers are pessimistic about the prospects of success though this route. ‘I believe that this is the end of the road,’ comments Ruth Davies, a partner at north-west firm John Pickering & Partners, a firm specialising in industrial disease and asbestos claims. ‘There was this tantalising bit where the three judges said that there might be some room for claims to be made in contract. However, it seems to me that it would be very tenuous. Those people who are able to qualify to make a claim in contract will be extremely limited.’



Richard Hopley, a partner in defendant firm Kendall Freeman in London, specialises in asbestos claims and acts for the reinsurers involved in T&N’s historic asbestos liability. He disagrees with Ms Davies’ assessment. ‘I’d be amazed if there aren’t claimant lawyers around the country at the moment investigating this point, hitting the books, and perhaps looking for a good test case,’ he says. ‘It is somewhat surprising, having slammed one door, to potentially open up another much bigger door through which a lot more people might try to come.’



Mr Hopley reckons that people ‘who were or are employed by a company that have been exposed to asbestos such as they now have a risk of developing what might be a life-threatening disease, should in theory have a right of action in contract for the employers’ breach of duty’. It would be a breach of the duty to provide a safe working environment, he explains. ‘It doesn’t just seem to be limited to those people who have plaques but just about everybody in the UK who has been exposed to a dangerous level of asbestos. It could be an extraordinary widening of the class of people who have a potential claim.’



Mr Hopley also believes that it is pretty unlikely that the government will legislate to reverse the recent ruling in the same way that it reversed the Barker judgment. ‘It’s just not that emotive an issue and the House of Lords haven’t talked enough about “injustice” and “regret”.’



Manchester sole practitioner Anthony Coombs specialises in mesothelioma cases. He puts the plaques judgment in the wider context of asbestos claims. ‘Insurers talk about how they are pleased to compensate people with genuine diseases like mesothelioma, and how the plaques decision will mean the limited money available will go to more “deserving” victims,’ he says. ‘The truth is that the insurers and their legal advisers have spent the last six or seven years trying to avoid paying compensation to mesothelioma victims by a series of test cases.’ This takes us from Fairchild in 2002 to Barker in 2005 to Rothwell and now the so-called ‘insurance trigger’ test cases, where, he explains, ‘insurers at the time of exposure want to pass responsibility for these claims to insurers at the time the diseases develop’.



Mr Coombs says: ‘Many contracted the disease with companies that went out of business years ago, so there are no insurers at the time the disease develops, typically 30 years after exposure to asbestos.’ He also points out insurer-sponsored attempts to push for a pre-action protocol. ‘It would ostensibly be designed to settle cases without litigation,’ he says. ‘Everyone who does this work knows that cases never settle without robust litigation, or never settle on the best terms for the victim without litigation.’



Jon Robins is a freelance journalist