Committee for Finance and Personnel

Damages (Asbestos-Related Conditions) Bill

DFP Response to Committee's Request for Comments on Evidence Received to Date

Mr Shane McAteer
Clerk
Committee for Finance and Personnel
Room 419
Parliament Buildings

Stormont Our Ref: CFP133/10

23 February 2011

Dear Shane,

Re: DAMAGES (ASBESTOS-RELATED CONDITIONS) BILL

Thank you for your letter of 14 February, which set out the Committee’s request for comments on the written submissions on the above Bill and responses to the following questions:

1. Are pleural thickening and asbestosis asymptomatic?
2. What is the rationale for including these two conditions in the Bill alongside pleural plaques?
3. Is compensation currently available in NI for pleural effusion and pleural thickening?

Taking the questions in the order in which they appear, we would say as follow:

• Pleural thickening is a thickening of the pleural layers around the lung.  There are two layers around the lung and pleural thickening can affect the inner layer and outer layer.   It would appear that symptoms, such as breathlessness or chest pain, may arise if the pleural thickening is diffuse.   It would also appear that the level of thickening relates to the level of exposure to asbestos.
• Asbestosis is a lung condition caused by prolonged exposure to asbestos. It would appear that it is a relatively rare condition today because the amount of exposure required to cause it is fairly considerable and regulations to restrict the intensity of exposure have been in place for some time. It would also appear that asbestosis progresses slowly, but, in the more severe cases, can place a significant strain on a person’s health, and, ultimately, shorten life expectancy. In his evidence to the Committee Professor Seaton stated that there were around 40 cases of asbestosis per year in Northern Ireland and that those cases were “mostly the mild form of asbestosis”.

• Clause 2 has been included in the Bill because it would appear that the insurance industry has endeavoured to build on its success in the Johnston case by arguing that “mild” cases of other asbestos-related conditions do not give rise to any symptoms and do not, therefore, constitute damage for the purpose of the law of negligence. This development was confirmed by Dr Shepherd in his evidence to the Committee. It has also been evidenced in 4 test cases which went before Walton J in the County Court in Newcastle upon Tyne in 2009. The judge rejected “ …(the)… suggestion that it is sufficient if there is a disease process which is abnormal and irreversible”, but he did go on to assess each case. In Beddoes v Vinters Defence Systems Ltd and others it was estimated that 1.5 % of a 5% respiratory disability was attributable to asbestosis and the Claimant succeeded in his claim. In Cooksey v Winters Armstrong ltd and others it was estimated that 1.25 % of a 5% respiratory disability was attributable to asbestosis and the Claimant succeeded in his claim. In Minnikin v National Grid Transgroup Ltd, a respiratory deficit of 3% was said to have been contributed to equally by chronic bronchitis and asbestosis and it was held that there was no material injury. In Dixon v Winters Defence Systems Ltd and others it was, apparently, held that the claimant had suffered neither symptom nor adverse effect on lung function and he was, therefore, found to have suffered no material injury. The same judge sat in Smith and Deanpast Ltd and others in 2010. This was a High Court case in which a claimant with a 15% respiratory disability was suffering from asbestosis, folded lung and visceral pleural thickening. The defendant successfully argued that the pleural thickening was not diffuse and that the disability was also due to the Claimant’s obesity.

• When giving evidence to the Committee, Dr Shepherd noted that the lung functions tests could be conducted when the patient is static and went on to suggest that any loss in lung function might not be readily apparent. Professor Seaton was not aware of the insurance industry’s approach to other asbestos-related conditions, which he said was “completely wrong”.

• Following on from Johnston, it would appear that compensation in respect of an asbestos-related condition will only be paid if the Claimant can provide evidence of physical symptoms.

With regard to the written submissions, we have prepared the attached table, which set out the points made in the submissions, together with our comments.

We hope the above information and comments are helpful.

Yours sincerely,

NORMAN IRWIN