A trend appears to be developing whereby marginal injury asbestos claims are in danger of creating disproportionate costs bills.

Pleural plaques – current position

As an asbestos related injury, pleural plaques, lacking disability, are no longer actionable in England and Wales.

Those with pleural plaques, who had commenced claims or legal proceedings prior to the House of Lords’ judgment in Johnston v NEI International Combustion Ltd [2007] (also known as Rothwell), following the Government’s decision not to overturn that decision by legislation, are however able to apply for one-off payments of £5,000 under a Government funded scheme. Future claims for pleural plaques will not be recognised in England and Wales.

Those who were exposed to asbestos in Scotland and have succumbed to pleural plaques, or to symptomless pleural thickening or symptomless asbestosis, have the Damages (Asbestos-related Conditions) (Scotland) Act 2009 to fall back on in order to claim compensation. The Scottish Act was subject to judicial review - insurers’ legal challenge was rejected in January 2009, appealed in July 2010, and a final decision is awaited.

Beddoes

In England and Wales, persons with pleural thickening or asbestosis, but no symptoms, are reliant for any hope of compensation on the Newcastle-upon-Tyne County Court decision in Beddoes, Cooksey and others v Vinters Defence Systems and others [2009].

The Beddoes and Cooksey claims were two of a group of test cases heard before His Honour Judge Walton, who considered a raft of symptomless asbestosis and symptomless pleural thickening claims, finding in favour of two out of the four test claimants. The Judge concluded, controversially, that a very low level of disability due to asbestosis – as low as 1.25% - would be sufficient to make a claim actionable. Furthermore, he found that such injury and disability might be identified solely by the medical expert, even where the claimant himself is not giving an account of symptoms, commenting “If medical science can identify an effect upon the claimant before he is aware of a symptom, that can amount to damage, provided it is more than minimal”.

A disability of 5% is perhaps comprehensible. A disability of 1.25% would normally, and unsurprisingly, be seen as close to de minimis for the purpose of litigation and not meriting pursuit. Mr Cooksey’s 1.25% disability level due to asbestos was reached by the Judge apportioning an overall diagnosed disability level of 5% (based on medical evidence) caused by four different respiratory conditions, of which only one was asbestos related. The concept of a medical expert ascribing so precise a minimal disability figure in a regular injury claim would be curious. The difficulty of identifying accurately so low a level of disability caused solely by asbestos also seems baffling.

Comment

Looking to the likely pattern of symptomless claims, detailed medical investigations will be necessary to prove the extent of injury created by asbestos in such cases. Frequently, other causes or conditions, such as obesity or smoking history, will be giving rise to breathlessness and disability, and in claims where marginal disability may be arising from asbestos, those other conditions, and their overlap with asbestos exposure as causes of the symptoms, will have to be investigated closely.

In setting the disability threshold at 1.25%, the Court has created an area of investigative complexity in which expensive medical analysis, including costly radiography, will become crucial. Medical expert costs may become a prohibiting factor for both claimants and defendants.

An important distinction in the medical investigation of asbestosis claims, and therefore of relevance in symptomless marginal disability asbestosis claims, is the medical foundation of the diagnosis of fibrosis in the lungs, and whether the same has truly been created by asbestos dust, or by other causes. This is a further problem likely to generate medically intensive expert analysis and a significant increase in legal costs.