Industrial Disease Newsletter

Thursday 3rd January 2008

ASBESTOS PLEURAL PLAQUES TEST CASE LITIGATION

1. Introduction:

   From the early 1980’s, the lower Courts have awarded Damages for pleural plaques that cause scarring to the lining of the lungs. For over 25 years the Courts recognised that asbestos exposure causes scarring to the lungs.

   Secondly, the exposure to asbestos indicated a higher than normal risk of the victim contracting other asbestos related diseases including mesothelioma.

   Thirdly, the Courts recognised that most, if not all, victims suffered from anxiety and some from a clinical stress condition as a result of their knowledge of their condition and the risks involved.Taken together, the lower Courts were satisfied that these victims should be compensated and were consequently awarded damages in the order of £15,000 and often more. This was not an insignificant sum for the victims involved as it reflected a range of medical problems that affected them in the long term.

2. The Rothwell Test Cases:

   The Insurance Industry over the last few years woke up to the reality that their reserves were likely to be increasingly burdened by an increasing number of asbestos disease claims, which would include many thousands of pleural plaques claimants. The insurers decided to characterise the whole concept of the plaques condition as being trivial in the hope that the Courts were prepared to separate the physical condition from the other issues of risk and anxiety. The Trade Unions were understandably keen to oppose this view and so various Test Cases were selected when the Rothwell case came to the Court of Appeal in January 2005. On that occasion, the Court of Appeal decided against victims, though there was a strong dissenting Judgment from one of the Appeal Judges stating that the long held view was that plaques victims should be compensated, failing which Parliament should change the law to assist victims.

3. House of Lords’ Ruling [2007 UKHL 39]:

   Lord Hoffman gave the Leading Judgment in the House of Lords, when he summarised the Decision of the Court is as follows:-

   1. “The question is whether someone who has been negligently exposed to asbestos in the course of his employment can sue his employer for damages on the ground that he has developed pleural plaques. These are areas of fibrous thickening of the pleural membrane which surrounds the lungs. Save in very exceptional cases, they cause no symptoms. Nor do they cause other asbestos-related diseases. But they signal the presence in the lungs and pleura of asbestos fibres which may independently cause life-threatening or fatal diseases such as asbestosis or mesothelioma. In consequence, a diagnosis of pleural plaques may cause the patient to contemplate his future with anxiety or even suffer clinical depression.
   2. Proof of damage is an essential element for a claim in negligence and in my opinion the symptomless plaques are not compensatable damage.Neither do the risk of future illness or anxiety about the possibility of that risk materialising amount to damage for the purpose of creating a cause of action, although the law allows both to be taken into account in computing the loss suffered by someone who has actually suffered some compensatable physical injury and therefore has a cause of action. In the absence of such compensatable injury, however, there is no cause of action under which damages may be claimed and therefore no computation of loss in which the risk and anxiety may be taken into account. It follows that in my opinion the development of pleural plaques, whether or not associated with the risk of future disease and anxiety about the future, is not actionable injury. The same is true even if the anxiety causes a recognised psychiatric illness such as clinical depression. The right to protection against psychiatric illness is limited and does not extend to an illness which would be suffered only by an unusually vulnerable person because of apprehension that he may suffer a tortious injury. The risk of the future disease is not actionable and neither is a psychiatric illness caused by contemplation of that risk”.

4. The Future:

   It should be understood that the House of Lords is the final Appeal Court in the United Kingdom and so for the time being pleural plaques victims are deprived of their right to claim. However, it should be noted that if, in the future, an industrial disease (other than pleural plaques) is diagnosed, then the victim is likely to have a cause of action and should take prompt legal advice. It is also possible that the Industrial Disease lobby in Parliament may seek a change in the law to make pleural plaques actionable. Only last year, Parliament was prepared to assist mesothelioma sufferers in this way and so it is likely that, efforts will be made on behalf of pleural plaques victims to change the law.

For further information, please contact Peter Hankins:

Freephone: 0800 0859960 or email.

January 2008