Previous Section Index Home Page

17 July 2006 : Column 41

New clause 7— Asymptomatic chemical exposure—

‘The lodging in the body of a chemical or substance which may cause injury as a consequence of negligence or breach of statutory duty, shall give rise to a cause of action whether or not the lodging has caused symptoms at the time the action is commenced or brought to trial.’.

New clause 8— Disapplication of Crown Proceedings Acts—

‘The Crown Proceedings Act 1947 and the Crown Proceedings (Armed Forces) Act 1987 shall not provide a defence to a claim brought after the Act came into force, in respect of injury caused by exposure to chemicals or substances occurring before that date but which did not manifest symptoms in the claimant until after that date.’.

Government amendments Nos. 7 to 10.

Bridget Prentice: I am delighted to be introducing new clause 13 and related Government amendments Nos. 7 to 10, which, I believe, will make a real difference to sufferers of mesothelioma and their families who have been, or would have been, affected by the recent House of Lords judgment in the case of Barker v. Corus.

Mr. Frank Field (Birkenhead) (Lab): The Minister rightly talks about her pleasure in moving the new clause. That pleasure is widely felt, certainly among Members on the Labour Benches, because many of our constituents have a real interest in what she is about to say. I thank her.

Bridget Prentice: I am grateful to my right hon. Friend for his intervention, especially because I want to ensure that I make it clear throughout my speech how grateful I am to my right hon. and hon. Friends for the campaigning that they have done on this issue and the pressure that they have put on me, and the Government as a whole, to ensure that we would consider new clause 13 and the Government amendments today. I agree that the measures are important to many hon. Members, and they are especially important to the families and constituents whom they represent.

Mr. Oliver Heald (North-East Hertfordshire) (Con): Of course we welcome the new clause and amendments. However, how would the Minister respond to a letter that I have received from the solicitor who acted for the Department of Trade and Industry when it instigated the litigation that resulted in the House of Lords decision in Barker v. Corus? The solicitor writes:

Will the hon. Lady explain which Minister decided to take the case of Barker v. Corus forward? How much did it cost, and why have the Government got into this mess?

Bridget Prentice: I am disappointed that the hon. Gentleman is trying to make juvenile points— [Interruption.] If he is prepared to listen, I will explain to him one of the simple things about cases in both the Court of Appeal and the House of Lords. Cases are given the title of the person taking the action and the person defending the action. The hon. Gentleman will see that no Government name appears in the case of
17 July 2006 : Column 42
Barker v. Corus as either the appellant or the defendant. The case was taken by the families against Corus. He should stop trying to make silly interventions and allow us to take a historic decision today that will change the lives of people who are suffering because of a horrible disease.

Mr. Heald rose—

Bridget Prentice: If I may, I would like to get past the first sentence of my speech. I will give way again shortly.

Let me outline the situation. In the 2002 case of Fairchild v. Glenhaven Funeral Services, the House of Lords decided that a person who had contracted mesothelioma after wrongful exposure to asbestos—

Mr. Heald: On a point of order, Madam Deputy Speaker. Is it in order for the Minister to misrepresent the position, albeit no doubt inadvertently? It was British Shipbuilders (Hydrodynamics) Ltd that took the case to the House of Lords, funded by the Department of Trade and Industry. I have quoted from a letter from the solicitor—

Madam Deputy Speaker (Sylvia Heal): Order. That is a matter for debate, rather than a point of order for the Chair.

Bridget Prentice: In the 2002 case of Fairchild, the House of Lords decided that someone who had contracted mesothelioma after wrongful exposure to asbestos at different times by more than one negligent employer could sue any of them, notwithstanding the fact that he could not prove which exposure had caused the disease, because all had materially contributed to the risk of his contracting that disease. Fairchild did not resolve whether liability should be joint and several, although it was presumed by the parties that that would be the rule, and that was the approach taken in practice. However, in Barker v. Corus, the House of Lords decided that, instead, the damages were to be apportioned among those responsible for the wrongful exposure according to their relative degree of contribution to the chance of the person contracting the disease.

That decision did not impose a limit on the damages that could be recovered from those responsible for the exposure to asbestos, but it did mean that the risk of any of them being insolvent and unable to pay the appropriate share would fall on the claimant, and that in practice the claimant would have to trace all relevant defendants, as far as that was possible, before liability could be apportioned and full compensation paid, or alternatively to issue multiple claims to recover damages on a piecemeal basis.

David Howarth (Cambridge) (LD): I fear that the Minister has missed one important part of the argument in the Barker case: it extended liability to cover cases where part of the exposure was caused by the claimant himself. Is not there a danger that the law will go back to its state before Barker if the new clause is passed?

17 July 2006 : Column 43

Bridget Prentice: In one sense the law will go back to before Barker—to Fairchild, which represents the position that we wish to put people in. As I said at the beginning, although Fairchild did not in itself determine joint and several liability, in practice that is what happened, and that is what we want to achieve.

David Howarth: I am grateful to the Minister for giving way again, because this is a very important point. There are two aspects of Barker. One was in favour of the claimant, by expanding the scope of the Fairchild ruling; the other was the imposition of proportionate several liability instead of joint and several liability. If we return to Fairchild completely, the liability rule will contract and fewer people will gain damages in the first place.

Bridget Prentice: I do not accept the hon. Gentleman’s version of what will happen as a result of the amendments. If he will allow me to go through the rest of the outline of why and how we are doing this, with a bit of luck it will all become clearer.

The practical effects of the decision, which the Law Lords were not asked to consider, would be that claims could take much longer to be concluded and would be much more difficult and time-consuming for claimants, when they and their families are already under considerable pain and stress. That is why we are taking action today to reverse the effects of the Barker judgment and to help claimants suffering from this terrible disease to receive the compensation to which they are entitled as soon as possible.

Tony Lloyd (Manchester, Central) (Lab): May I too congratulate my hon. Friend on this important step? Although she is absolutely right to emphasise that the decision is fair to the claimants, it is also logical medically. I know of no doctor who believes that it is even remotely sensible to try to apportion the responsibility or the causality among different former employers. The Barker decision was treated with total incredulity by the medical profession, who of course must deal with the consequences of the outrageous actions of the asbestos purveyors of the past.

Bridget Prentice: My hon. Friend makes a very important point. That is why we have tabled the amendments. The very fact that a single fibre of asbestos is enough for someone to contract this horrible disease makes it very difficult medically to decide directly where that might have happened.

I should make it clear that the amendments are just part of what the Government are doing. Together with colleagues in the Department for Work and Pensions, we are working with the Association of British Insurers, the Association of Personal Injury Lawyers and the TUC urgently to identify ways of speeding up the settlement of mesothelioma claims. My right hon. Friend the Secretary of State for Work and Pensions has already indicated that he will be making a statement about that work before the recess. I thank the ABI, APIL and the TUC for the helpful and constructive discussions that we had when formulating the amendments.

17 July 2006 : Column 44
4.45 pm

Chris Bryant (Rhondda) (Lab): Those of us who last week heard the Minister for Employment and Welfare Reform make a commitment to providing a statement before the recess were encouraged. Will the Under-Secretary underline the importance of taking swift action? Sadly, people who contract mesothelioma may have no more than a year or 18 months between the moment when they know that they have contracted the illness and dying, so it is important that the Government move swiftly, and that the system is swift to administer. Does my hon. Friend agree?

Bridget Prentice: I absolutely agree with my hon. Friend, and I hope later to reassure him that we are making sure that that happens. It is all very well our introducing the amendments, but if people who are suffering had to wait an extended time to receive their compensation, much of what we are doing today would be undermined, so my hon. Friend is right to make that point.

Mr. John Greenway (Ryedale) (Con): I, too, thank the Minister for the speedy way in which she has responded to this problem, which dominated Second Reading. She mentioned the ABI, and I am grateful for the changes that the Government have implemented. The new clause is complex, and amends, for example, the financial services compensation scheme. Can she give the House the assurance that all claimants will receive full compensation? If all those responsible were insolvent, there would be a loophole, and a gap in provision. That requires a great deal of attention, so it would be helpful to all of us if she gave that assurance. Finally, I endorse the point about speed, which is particularly important, given that the rules committee has to draw up a new framework to ensure that compensation is made speedily. That process has, in the past, been protracted, and that would not be appropriate in the circumstances.

Bridget Prentice: The hon. Gentleman makes a fair point. Officials are working on that issue, virtually as we speak. He is right about the effect on the Financial Services and Markets Act 2000, and indeed on the Policyholders Protection Act 1997. We are not changing liability under that scheme, but we will make sure that people are properly covered and that FSMA, as it is affectionately known, is used properly. Work on that is going on now. Later, I hope to show that people can receive compensation even before the regulations are made, and that the money can be drawn back later by the people who pay it. I hope that I have given the hon. Gentleman reassurance.

I want to deal with the detail of the amendments, and I hope that the explanatory note that has been provided will be of assistance. New clause 13 provides that where a person


the negligent person will be jointly and severally liable. That will enable the claimant to recover full compensation from any responsible person, and will
17 July 2006 : Column 45
also apply to claims made by the claimant’s estate or dependants when the claimant has not made or resolved a claim prior to his death.

Mr. David Hamilton (Midlothian) (Lab): I, too, congratulate the Minister and her officials on the manner in which they took the Bill through the House, and on ensuring that it will apply to Scotland throughout the period in question. The issue is extremely important, so does the Minister share my disappointment that Members from the Scottish National party do not see fit to be in the Chamber, even though the issue affects so many Scots?

Bridget Prentice: My hon. Friend points out the absence of SNP Members, but it does not surprise me, as they rarely come to the Chamber when something of such importance to many of their constituents is being debated. I am not surprised—disappointed, perhaps, but I may be too old and cynical even to be disappointed any more.

With reference to Scotland, I am grateful to our colleagues in the Scottish Executive who worked extremely hard in a very short time to agree the Sewel motion, which will allow the provision to apply to Scotland. I put on record my thanks to them for taking on board the issues that we raised with them, despite the fact that we did not necessarily have every t crossed and every i dotted.

The provision will apply regardless of where the exposure took place. I am aware that some concerns have been expressed that this may extend the principle contained in Fairchild. I do not believe that this is the case. Although the case of Fairchild related to a workplace exposure, the principle contained in the House of Lords judgment was not restricted to such cases. To restrict the provision to workplace exposure would mean that some of the claimants affected by Barker would be left in exactly the same difficulties as they are now suffering, and that different claimants would be treated in different ways purely because of where the exposure occurred. That cannot be right.

Mr. John Redwood (Wokingham) (Con): Can the Minister give us an idea of how much in total might be paid out if the new clause goes through, and what that would mean for each sufferer?

Bridget Prentice: No, I regret that I cannot give the right hon. Gentleman a figure for the sum that would be paid out. When my right hon. Friend the Secretary of State for Work and Pensions makes his statement, he may have more detail. I shall let him know that that would be of interest to the House. If he can, I am sure that he will try to give a figure, but it is difficult to make a direct statement on such matters. We know that there are between 1,000 and 2,000 cases per year, so we can work on that basis. The changes to the FSCS will improve the speed with which claimants receive compensation, but as I said earlier, they do not alter liability under the scheme.

The provision also ensures that where a claimant has worked for a single employer who is now insolvent, but where only part of the period of exposure is covered by insurance, the claimant will be able to recover compensation from that insurer on the same basis as before the Barker case. That is a point that the hon. Member for Ryedale (Mr. Greenway) raised.

17 July 2006 : Column 46

Subsection (3) makes it clear that the provision does not affect the existing law on contributory negligence. Where a claimant has himself been responsible for part of the negligent exposure, it is right that that should be reflected in the level of compensation, but the provision will apply where, for example, a self-employed person has been negligently exposed by another while working as a contractor.

Subsection (3) also makes it clear that a person who has paid full compensation can then seek a contribution to the damages awarded from other responsible persons under the Civil Liability (Contributions) Act 1978. In the light of concerns expressed by insurers, subsection (4) provides for contributions to be apportioned on the basis of the relative lengths of the periods of exposure for which each was responsible, unless the parties agree otherwise or the court thinks that another approach is more appropriate. That will ensure that defendants and insurers are able to recover contributions in as straightforward a way as possible. In that context, it is also important that the lawyers acting for claimants ensure that defendants are provided with a full employment and exposure history, and we are looking to see whether amendments to secondary legislation will help to achieve this. That, too, will help to speed up compensation.

Subsections (7) to (11) confer a power on the Treasury to make regulations about the provision of compensation to a responsible person or an insurer of a responsible person in specified circumstances. These provisions are essential to help avoid delay in paying compensation, and will allow the current practice of employers and insurers making parallel payments with the FSCS to continue. As well as speeding up the claims process, they also produce a fair outcome for insurers.

These subsections confer a power for the Treasury to make provisions that would facilitate speeding up the payment of claims to mesothelioma victims. These provisions would enable responsible persons to claim money back from the financial services compensation scheme, when another responsible person and their insurer are both insolvent and thus unable to pay their own share of compensation payments—again, that is related to the point that the hon. Member for Ryedale made. The power includes the ability to deal with situations arising before the establishment of the FSCS that were, as I have said, settled under the Policyholders Protection Act 1975.

The power will come into effect only when the Treasury has laid the necessary regulations and the Financial Services Authority has made the relevant rules. However, the rules permit the liable party to claim contributions in respect of claims dealt with from the date of Royal Assent—that is the point that my hon. Friend the Member for Rhondda (Chris Bryant) asked about. The Treasury will make regulations, which will be laid as soon as practicable in the autumn, once Parliament reconvenes.

The FSA is considering what changes may be needed to the FSCS to facilitate the swifter settlement of mesothelioma claims in accordance with the amendment of this Bill. The FSA proposes to take forward any changes as a matter of priority.

Next Section Index Home Page