Committee for Finance and Personnel Damages (Asbestos-Related Conditions) Bill
Asbestos Victims Support Groups Forum – UK
Submission to the Northern Ireland Assembly: Department of Finance and Personnel
concerning the Draft Damages (Asbestos-related Conditions) Bill 2010
The Asbestos Victims Support Groups Forum – UK (Forum) is a national organisation comprising regional asbestos victims support groups who provide support and advice to asbestos victims throughout England, Wales and Scotland.
The Forum participates in the All Party Parliamentary Group on Occupational Safety and Health Asbestos Sub-Committee and represents asbestos victims on committees and bodies concerned with issues affecting asbestos victims.
Most importantly, the Forum is in daily contact with asbestos victims, victims of the world’s worst occupational health disaster, whose suffering is rarely fully appreciated, and who face a continuous battle for justice. Hardly a year goes by without a new attempt, principally by employers’ liability insurers, to limit their liabilities for insurance they wrote to cover asbestos-related diseases. Several attempts have been rebuffed by the courts 1, but not in every case. In one notable case, Barker v Corus (UK) Plc. Parliament overturned a Law Lords’ decision in a case that would have denied justice to thousands of dying mesothelioma sufferers.
The decision to abolish compensation for sufferers of pleural plaques 2 has caused huge dismay and led to a prolonged campaign to have this House of Lords’ decision overturned.
We appreciate that the Department of Finance and Personnel (the Department) will have taken expert submissions concerning the medical, legal and human rights questions relating to the draft Damages (Asbestos-related Conditions) Bill 2010 (the Bill). Our submission is based on the experience of pleural plaques sufferers and our experience working with asbestos victims for nearly two decades and we hope that the Department will take some account of our submission.
1. Pleural plaques diagnosis – the reality Asbestos laggers who were heavily exposed to asbestos, often for many years, have suffered a high incidence of fatal asbestos cancers. Consider the GMB branch Heat & Frost Laggers experience. Out of 350 members 58 had contracted asbestos-related diseases.
- 25 had pleural plaques (7 later contracted lung cancer or mesothelioma)
- 8 pleural thickening (2 later contracted lung cancer or mesothelioma)
- 15 asbestosis (3 later contracted lung cancer or mesothelioma)
- 3 lung cancers
- 7 mesothelioma
Twenty three of the branch members had died from asbestos-related illnesses.3
The reality is that many pleural plaques sufferers know of, or have witnessed, the death of their work colleagues from asbestos-related cancers. One member of the above GMB branch, Brian Fairbrass (Benny) committed suicide on learning of his diagnosis.4 Pleural plaques sufferers often live in close-knit communities and all too often they read of the death of a fellow worker from mesothelioma or asbestos-related lung cancer – how can this not cause anxiety?
It is argued that pleural plaques sufferers should not feel more anxious than those who have been exposed to asbestos who have not developed pleural plaques. This argument comes from people who have no knowledge or understanding of what a diagnosis of pleural plaques means. From our experience, once someone is told that they have an asbestos disease, everything changes for them. They know that their bodies have reacted to the asbestos fibres in their lungs, causing damage, and an irreversible change has occurred. In all likelihood, they will have been shown X rays or CT scans depicting the affected areas of their lungs. In our experience, reassurances that pleural plaques are the least serious of the asbestos diseases never allay their fears. The fact that it is the asbestos fibres in their lungs, not pleural plaques that may yet cause more serious disease makes no difference. They now know that their lungs have been affected and the chance of something worse happening is real in a wholly different way.
The response to a diagnosis of pleural plaques varies, for example, one man said that he had ‘put his house in order and paid for his funeral’, but for most the news is bad and they hope for the best. In our experience, no one diagnosed with pleural plaques takes that diagnosis lightly.
We believe that our testimony on the impact of a diagnosis of pleural plaques is borne out by the experience of many health professionals who have diagnosed people with pleural plaques. We urge the Department to see beyond the reassurances of the insurance industry that pleural plaques are inconsequential and nothing for people to worry about. The insurance industry reassurance has gone so far as to say that pleural plaques are a “good thing” because it proved that the body’s defence systems were in good working order. This was the view expressed by Dr. Pamela Abernathy of the Forum of Insurance Lawyers.5
2. The law brought into disrepute The right to compensation for pleural plaques sufferers was a matter of settled law for twenty one years. Nothing has changed over twenty one years in the medical understanding of pleural plaques: they are, as they always have been, scarring of the lung pleura resulting from the body’s reaction to asbestos. Pleural plaques occur where there has been significant exposure to asbestos, consistent with heavy occupational exposure. They are thus a marker of exposure to asbestos fibres, fibres which might yet cause serious asbestos disease. For twenty one years compensation was paid for the damage done to the lung, the scarring of the lung pleura, and for the anxiety, and in some cases the distress that this diagnosis caused.
We accept that the law is not immutable, it changes over time. However to change the law in respect of compensation for pleural plaques where there has been no change in legal principles of the tort of negligence, and no new medical evidence, brings the law into disrepute. For pleural plaques sufferers, the abrupt change in the law makes no sense. The Forum groups have spent hours on the telephone for days on end talking to pleural plaques sufferers who cannot accept the fine legal distinctions as to what constitutes ‘damage’. For them, their lives have changed, their fears are real and it is the law that is unreal.
3. Legal inconsistency In evidence to the Secretary of State for Justice in 2009,6 Dr. Rudd, an eminent consultant physician and authority on medico-legal matters, exposed the inconsistency in the law and articulated the instinctive objection of pleural plaques sufferers to a change which simply made no sense to them whatsoever.
Dr. Rudd explained that the Law Lords’ implication that ‘physiological damage’ as well as ‘anatomical damage’ is necessary for an injury to constitute actionable damage is inconsistent with other areas of personal injury law. He gave an example where a person suffers a facial injury which leaves a scar, ‘anatomical injury’, and is awarded damages even though the ‘physiological function’ of the face is not impaired.
He gave another example where the law allows compensation where someone has neither anatomical nor physiological damage. Where someone receives an injection where, for a while, it is thought to be contaminated with the virus, HIV, the only physical injury is the puncture of the skin by a needle, yet compensation is allowable for psychological damage. Dr. Rudd goes on to say:
“It must be at least equally appropriate to award damages to persons who are acknowledged to have been negligently exposed to asbestos, who have suffered ‘anatomical injury’ i.e. pleural plaques, who are at significant, and in some cases large, long term risks of lung cancer and mesothelioma.”
We urge the Department to take account of the inconsistency of the law as described by Dr. Rudd. We believe that the fine legal distinctions about what constitutes damage in respect of pleural plaques, which are so perplexing to asbestos victims and seem so unfair, do not provide the grounds to abolish compensation. On the contrary, they are in conflict with existing law.
4. A profound sense of injustice Were it not for the negligence of employers and the institutional failure of government, health and safety enforcement agencies and public health authorities we would not be witnessing an epidemic of mesothelioma deaths and the persistent diagnoses of non-cancerous asbestos-related diseases, all too often preceding a diagnosis of mesothelioma or lung cancer.
The fine legal distinctions concerning what constitutes damage are not just lost on someone who has just seen an X ray showing the ‘damage’ to the lungs, they seem utterly offensive to someone who worked with no protection whatsoever in a dirty, dusty environment, full of asbestos fibres with no warning of the dangers of asbestos exposure or any protection whatsoever from fibres that can cause cancer. Reproduced (scanned) below is a restrained and polite letter from David Richardson to his MP in 2007. We have heard less restrained comments from many pleural plaques sufferers who are outraged that they were not only negligently exposed to asbestos and have been diagnosed with an asbestos disease, pleural plaques, but that they should lose their right to compensation.
5. Opening the floodgates
It has been argued that to allow compensation for pleural plaques will ‘open the floodgates’ for claims for anxiety caused by other injuries. This argument is unsustainable. For twenty one years pleural plaques were compensatable and there was not an explosion of other claims based on the law relating to pleural plaques compensation. There is no reason whatsoever to believe that the situation will change if the law is returned to the position prior to the Law Lord’s judgment in 2007.
In respect of claims for pleural plaques we would like to categorically state that we deplore the use of scan vans to encourage people to make claims. It is not only damaging for people to be exposed to radiation, it is also wrong to put people in the way of anxiety and distress about a potential asbestos disease. Where a diagnosis of pleural plaques is made during a medical investigation then it is right to inform a patient of their diagnosis. In these circumstances patients should also have the right to sue for compensation.
Conclusion
We have no doubt that the testimonies from pleural plaques sufferers in Northern Ireland will confirm our experience working with asbestos victims in England, Wales and Scotland. The incredulity, shock and profound sense of injustice felt by so many asbestos victims we have supported over the years we believe will be reflected in the testimonies of people in Northern Ireland.
As for England and Wales, the reaction to the decision to end compensation from Alan Watson was:
“I worked at British Rail and I have known work colleagues die of Mesothelioma, being diagnosed with pleural plaques is like standing on the edge of a precipice, to be denied compensation as well, adds insult to injury”
A reaction to the decision to provide some compensation only for those diagnosed prior to 17th October 2007 was summed up by Mr. Molyneux who said:
“I was wrongly exposed to asbestos for many years and have seen the effect it has had on so many people who have died from mesothelioma. The asbestos fibres lodged in my lungs, causing pleural plaques, signal a heightened risk that I too may suffer serious consequences. I have to live with that and so do hundreds of others. Can the Government live with its decision today to compensate some but not others?”
Compensation for pleural plaques is not just about money, it is first and foremost about justice.
Contact for the Forum:
Tony Whitston (Chair)
Greater Manchester Asbestos Victims Support Group
Windrush Millennium Centre
70 Alexandra Rd.
Manchester
M16 7WD
Tel: 0161 636 7555
asbestos.mcr@gmail.com
Footnotes:
1 Fairchild v Glenhaven [2002] HL
2 Johnson v NEI International Combustion Ltd [2007] UKHL 39
3 http//www.britishasbestosnewsletter.org/ban70.htm
4 http://ibasecretariat.org/lka_landmark_demo_pleur_plaque_rul.php
5 http://news.scotsman.com/politics/Asbestosrelated-condition-39a-good-thing39.4451333.jp
6 Dr. Rudd’s letter to the Rt Hon Jack Straw, Lord Chancellor and Secretary of State 1st October 2009
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