 |
| Pleural Plaques Update |
|
 Overview |
|
|
It is not currently possible to claim for pleural plaques. However, it may be possible to claim in the near future.
You can claim compensation for pleural thickening and other asbestos related diseases. If you have been recently diagnosed with pleural plaques,
you can still call us for advice on the options available - you may be entitled to compensation from the government under the
under the Pneumoconiosis Act of 1979.
The following is a brief summary of the ongoing pleural plaques debate from the House of Commons and House of Lords . . .
|
|
|
Prime Ministers Questions - Wednesday 12th March 2008 |
|
|
Mr. Stephen Hepburn (Jarrow) (Lab): The Prime Minister will be aware of the disgraceful plight of pleural
plaque sufferers in this country, who are being denied their rightful claim to compensation by the courts.
Does he agree that it does not matter how the issue is dressed up: pleural plaques are a working-class industrial
injury caused by negligent exposure to asbestos? Will he meet the group of MPs who have been campaigning on the issue,
so that we can bring an end to this dreadful, Victorian scandal?
|
|
|
The Prime Minister: I am grateful to my hon. Friend for raising the House of Lords judgment,
which now has to be answered. Asbestosis and mesothelioma are terrible diseases, and all of us who have seen
the effects that they cause know that we have to do more to help the victims of those diseases.
On pleural plaques, we are looking at the matter at this very moment. We will publish a consultation document soon.
We are determined to take some action, and I am very happy to meet his delegation.
|
|
|
HOUSE OF LORDS - WEDNESDAY 17th OCTOBER 2007 |
|
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE:
Johnston (Original Appellant and Cross-respondent) v. NEI International Combustion Limited (Original Respondents and Cross-appellants)
Rothwell (Original Appellant and Cross-respondent) v. Chemical and Insulating Company Limited and others (Original Respondents and Cross-appellants)
Topping (Original Appellant and Cross-respondent) v. Benchtown Limited (formerly Jones Bros Preston Limited) (Original Respondents and Cross-appellants)
(Conjoined Appeals) Grieves Appellant) v. F T Everard & Sons and others (Respondents)
|
|
| LORD HOFFMANN |
|
" 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.
|
|
|
Proof of damage is an essential element in 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. "
|
|
|
Court of Appeal Decision Rothwell v Chemical & Insulating Co Ltd - 06 January 2006 |
|
| Overview |
|
Pleural plaques is a type of scarring on the lung caused by exposure to asbestos.
It is accepted as an asymptomatic condition which nevertheless is a clear marker of significant
asbestos exposure and the victim carries an increased risk of developing a more serious asbestos
related disease such as lung cancer, asbestosis, mesothelioma or pleural thickening.
|
|
|
It has also been accepted that the victim may well develop psychological symptoms arising from the
increased risk of developing a more serious asbestos condition in the future.
|
|
| Damages |
|
Prior to the Appeal the victim could proceed either by way of provisional damages which would
enable him to accept a lesser amount around £4,000 but with the opportunity to return to Court at a
later date if he developed one of the more serious asbestos related conditions, or alternatively between
£7-£10,000 if the claimant wished to settle on a full and final basis. |
|
| Court of Appeal Decision |
|
The Court of Appeal ruled on a 2:1 majority verdict that pleural plaques did not themselves
amount to anything more than minimal damage and did not give rise to any physical symptoms
and therefore the victims were unable to establish a cause of action.
The Court also ruled that where pleural thickening was diagnosed, again,
if the condition was asymptomatic then the condition was not a cause of action. |
|
| Psychological damage |
|
In the case of Mr Rothwell he had a recognised psychiatric illness from which he developed
irritable bowel syndrome. Here the Court again stated that the Defendants were not liable
on the basis that “it was not reasonably foreseeable that a man of normal fortitude would suffer
this type of psychiatric damage”. |
|
| Reasons for the decision |
|
The insurance industry estimates that if this judgment is upheld in the House of Lords it will save the insurance industry £1.4 billion.
|
|
| Prospects of success of an appeal ? |
|
There is a strong dissenting judgment from Lady Justice Smith who expressed that the judgment
upholding the previous case law that as pleural plaques are accepted as scarring of the tissue of
the pleura, this in itself presents physical damage and a 1% risk of developing a more serious asbestos
condition and is 100% greater than a risk faced by the average person and this together with anxiety
gives rise to the claimant establishing a significant injury. |
|
| Appeal to the House of Lords |
|
Originally it was estimated that the Appeal would take place two years from the date of the judgment
but due to pressure from all sides, The House of Lords are likely to hear the appeal in July 2007. |
|
| What happens next |
|
Please contact us if you have any questions. We will still assess your claim and contact you if it is possible to
claim for Pleural Plaques after the court of appeal.
Call us on Free Phone: 0800 783 9535 and ask for Lynne Manners or Warren Miller. |
|
| |
|
|
