First published in The Gazette, 6 March 2008, "Take the High Road".
There is currently a grave crisis over compensation for sufferers of pleural plaques, a scarring of the lining of the lungs caused by exposure to asbestos. It has arisen from the House of Lords’ judgment last autumn, in Johnston v NEI that such plaques do not constitute a compensatable injury. This followed a period of over 20 years in which many with pleural plaques recovered damages that typically fell in the range of £15,000 to £20,000. This is hardly the mark of a “trivial” condition.
There are many reasons for reversing their Lordships’ decision but the recent announcement by the Scottish Government that people with pleural plaques will be able to seek compensation in Scotland requires particular attention. In Westminster, Bridget Prentice MP said that “if a Scottish Parliament finds a way of dealing with it, we will examine that very carefully. I agree that it will be unacceptable in such a situation for people in one part of the United Kingdom to receive compensation and others in another part not to do so. That would be inequitable.”
Indeed it would. It should be inconceivable for there not to be parallel legislation in England and Wales, and would cause intense outrage to the Government’s very own supporters. Such a situation would throw up absurd anomalies and raises the spectre of cross-border litigation on abstruse and difficult questions of international law. Companies that operated on both sides of the border would have to pay compensation to its employees North of the border but not to those who worked to the South. The aggrieved Southerners would seek to rely on the doctrine of forum conveniens to have their claims tried under Scottish law, since they are denied a remedy in England.
But there are more important issues at stake than the uniformity of law across Scotland, England and Wales. The decision of the House of Lords overturned 22 years of case law, and sparked outrage from asbestos campaigners and politicians.
The view of the Lord Chief Justice in the Court of Appeal was that it was better to wait for the proportion of pleural plaques sufferers who go on to develop lung cancer or mesothelioma to do so, and then obtain compensation for their illnesses. However, these diseases are so aggressive that a lifetime settlement is often unobtainable. For the third of claimants who are bachelors, divorced or widowed, the compensation is savagely reduced by the Law Reform (Miscellaneous Provisions) Act before passing wastefully as a windfall to their heirs. For the others, it is left to the bereaved widows and children to pursue the claim.
Those who were subjected to heavy occupational asbestos exposure have collective experience of the threat and reality of mesothelioma and lung cancer. For them: the diagnosis of pleural plaques is no “symptomless” affair. For them it is “the beginning of the end” even if they do not eventually go on to develop an asbestos cancer. For many the airing of a grievance, an admission of liability and an award of compensation provides an important element of closure and of psychological healing. The availability of provisional damages meant that pleural plaques victims could obtain this closure whilst still preserving their entitlement to full compensation if they went on to develop an asbestos cancer. That right is now denied and for that reason their Lordships’ decision is an injustice.
There really is no good reason not to legislate. It will cost the Government and the tax payer nothing. The effect of such a statute is that insurers who have received the premiums will resume paying damages, as they have done for over 20 years
The House of Lords has stated the law. It is well known that on occasions the law and justice diverge. Wise governments reconcile them again, and that is what is required of this government now.
Andrew Morgan is a Partner in the Personal Injury Group at Field Fisher Waterhouse LLP, and specialises in asbestos claims.