Introduction

The Ministry of Justice (“MOJ”) has canvassed the views of Claimant representatives, the insurance industry and other interested parties as to whether or not the Government should follow in the steps of the Scottish Parliament by introducing legislation to negate the decision of the House of Lords in Johnston–v- NEI [2007] and conjoined cases, in which it was held that asymptomatic and benign pleural plaques do not constitute a compensatable injury. In the alternative, the MOJ invites views as to whether or not the Government should establish a ‘no fault’ compensation scheme for individuals who have been diagnosed with pleural plaques and, if so, who should pay and how much?

Kennedys act for a wide range of clients who face claims involving asbestos induced injuries, including insurers, self-insured corporations, health authorities and local authorities. They, therefore, consider themselves well qualified to respond to the MOJ’s consultation paper on pleural plaques. Before responding specifically to the particular questions raised in the consultation paper, Kennedys feel compelled to say that it is absolutely imperative that the insurance industry and uninsured entities who frequently face asbestos claims are permitted to continue financing the increasing number of mesothelioma and other serious asbestos injury claims. It would be very short sighted for the Government to court short term popularity by allowing money to be siphoned off from what is a finite ‘pot’, so as to compensate a condition which causes no pain or disability, thus leaving insufficient funds to compensate future mesothelioma victims and people with serious asbestos induced conditions.

Questions 

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

Kennedys believe that a public education campaign to raise awareness of the nature of pleural plaques will help allay concerns. The condition is often misunderstood not only by the public but also by general medical practitioners.

Appropriate guidance and training for General Practitioners, and others involved in such a campaign, is essential to ensure that the advice given by them to the public, either directly or via Government sponsored literature, is accurate and consistent. The advice also needs to be positively framed so as to assist in alleviating public concern about this benign condition, which seldom leads to serious illness.

Counselling people diagnosed with pleural plaques may also help allay anxiety. Periodic x-rays every 2-3 years will reassure patients. Instead of taxpayers money being spent compensating an asymptomatic condition, it would be better if those funds were used to provide periodic x-rays.

  1. What are your views on whether it would or would not be appropriate to overturn the House of Lords’ decision on pleural plaques?

Kennedys believe it would be inappropriate for the Government to overturn the House of Lords’ decision in Johnston–v- NEI.

The case was carefully analysed by Holland J, a very experienced personal injury Judge. It was then comprehensively reviewed by the Court of Appeal and subsequently by the House of Lords. Both appellate Courts decided that pleural plaques did not constitute a compensatable injury.

The law of negligence has evolved over the centuries and is constantly reviewed and refined by the judiciary who take into account changes in society and public opinion. Where it is considered that injustice will result from applying existing law too strictly, the judiciary is innovative and is not slow to find a way to right an obvious wrong. An example of this was the case of Fairchild –v- Glenhaven Funeral Services Limited [2002] HL, in which the House of Lords found an exception to the law of causation in order to avoid an injustice to a Claimant who could not establish which of two culpable former employers had exposed him to the fatal asbestos fibre or fibres which caused his mesothelioma. Kennedys argue that this is the proper and just way to deal with changes in the law rather than Government intervention. The Executive should not overrule the judiciary unless there are very exceptional circumstances.

It would be fundamentally wrong for the Government to usurp the law of negligence for political reasons or for it to submit to pressure from a minority who stand to benefit from that change. If the law of negligence were changed, it would have a far-reaching effect on other cases. The impact of change, therefore, needs to be fully and properly evaluated.

The intention of the Scottish Parliament to introduce legislation to overturn the effects of the House of Lords ruling in relation to pleural plaque victims in Scotland is not a good reason for England and Wales to follow suit. The argument that an anomalous situation will occur if people can claim compensation in one part of the UK but not in another is not compelling because anomalies already exist. For example, students in Scotland have their university fees paid for them. Further, the elderly in Scotland receive more favourable benefits than the elderly south of the border. The Government has not shown any inclination to remove these anomalies and so there appears to be no logical reason why it should follow the Scottish Parliament in the case of pleural plaques.

For the Government to overturn the House of Lords’ decision by legislation, it would effectively be disenfranchising the judiciary. And if it were to become a common feature for Government to overturn judicial decisions by legislation, this would lead to uncertainty for litigants, which would have a serious effect on society and commerce.

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

It would be inappropriate to provide no fault compensation payments for a symptom less condition which has a negligible risk of developing into something more serious. It would be more appropriate to compensate a person should he later succumb to a significant injury.

As previously stated, it is imperative that insurers remain able to finance serious and disabling asbestos claims. It is necessary to look at the long term. Asbestos injuries (particularly mesothelioma) are on the increase and funds need to be preserved to meet the unknown number of future claims. If funds are allowed to be depleted by thousands of asymptomatic pleural plaques, then this may result in some insurers going out of business. This will then transfer the financial burden for compensating victims of serious asbestos induced injuries to the defendant companies or the taxpayer. We are frequently instructed by companies which are uninsured for their historical asbestos liabilities.

The consultation paper states that on stakeholders’ past claims experience, less than 5% of people diagnosed with pleural plaques subsequently develop a more significant asbestos related disease. In fact,

Kennedys’ experience of dealing with a considerable number of pleural plaque claims over many years is that less than 1% of Claimants who have settled on a provisional basis have gone on to contract a more serious illness.

Historically, pleural plaques claims were settled at low (almost nuisance) value when there was very little understanding of the condition and fewer claims.

  1. If a no fault payment scheme were to be introduced: 
  1. Which of the Schemes should be introduced, and why?

Pleural plaques are not (and never have been) a prescribed illness worthy of Industrial Injuries Disablement Benefit. The reason for this is that they cause no disablement or symptoms. They are simply a marker of previous asbestos exposure.

Instead of compensating symptom less injury, funds would be better spent if they were used to fund medical research for curing or prolonging the lives of mesothelioma victims. Such an approach is more likely to provoke a positive response from the insurance sector, the unions and the medical profession.

Introducing a no fault scheme would lead to a glut of claims. Against a climate of financial uncertainty, a no fault scheme funded by the insurance industry and by uninsured entities may result in many insolvencies which in turn will lead to other social problems. If a no fault system were to be introduced, such a scheme should be confined to past claims only.

  1. What level of payment would be appropriate?

Kennedys consider that an award in the sum of £5,000 would be excessive having regard to the fact that pleural plaques are benign and do not cause disability. In the Employment Tribunal injury to feelings in discrimination claims are compensated within a bracket of £500-£5,000. If there is to be a no fault scheme for pleural plaques, any payment should be at the lower end of the bracket applicable in Employment Tribunal cases. The JSB Guidelines (9th edition) category (A)(d) for minor psychiatric damage refers to awards of less than £1,000 for temporary anxiety. 

  1. How should the scheme be funded?

The Government should fund any no fault scheme. 

  1. What limitation period should apply for each option?

A one-year limitation period from the date of diagnosis, with no exceptions, would be appropriate.