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5.45 pm
Mr. Dismore: Having been foreshadowed by the hon. Member for North-East Hertfordshire (Mr. Heald), I remind the House that I have been a personal injury lawyer for many years—indeed, for rather longer than he indicated. I retain a practising certificate and am a consultant to my law firm, although I do not practise. I am also a member of the Association of Personal Injury Lawyers.
I congratulate the Government on new clause 13. It is a realistic response to an urgent problem and the hon. Gentleman was somewhat churlish about it. No matter who appealed the case, sooner or later, given the aggressive approach that the insurance industry is increasingly adopting towards personal injury cases, someone—an insurance company—would have taken it to the House of Lords. It is serendipitous that the decision taken in the House of Lords happened when there was still sufficient space to decide what should be done and to let the Government table amendments today to put matters right in the Bill. Had that not been the case, it might have been a long time before an opportunity arose to put right the problems created by the Barker judgment. On the same serendipitous note, and for similar reasons, I hope that the Minister might think again on my new clause about pleural plaques.
The hon. Member for North-East Hertfordshire keeps going on about legal costs. The answer on that is in the hands of the insurance industry. If it does not fight cases so aggressively and admits liability where appropriate in good time, legal costs do not mount up. Frankly, in most asbestos cases, the legal costs are not the huge proportion that he seemed to suggest of the £150,000 awarded in mesothelioma cases. I suggested many years ago, and it is even more relevant now, that we should set up a register of employers’ liability insurance, so that if a company goes broke or ceases to trade, or if an insurance company ceases to trade, there is a record for 10, 15 or 20 years later of who carried insurance risks at a particular time. That would be a helpful way forward.
I shall talk about my two new clauses. New clause 7, as my hon. Friend the Minister anticipated, is about pleural plaques. She referred to the fact that the half-dozen test cases known as the pleural plaques cases are going to the House of Lords and questioned whether my new clause was framed in rather general terms that could incorporate other situations. It is indeed a general amendment; I would like to try to anticipate what may happen in future. However, it is primarily focused on pleural plaques and I cannot think of any other case at present that it would incorporate, and nor, I think, can anyone else.
There has been a problem on pleural plaques only for the past few months. For 20 years, the principle of compensating for the injury of pleural plaques has been well established in the courts. Compensation, until one particular case came up in the Court of Appeal, was
usually in the region of £6,000 to £7,000, linked to provisional damages. Provisional damages are important in this respect for reasons I shall come to later. In the pleural plaques case—sometimes known as Grieves, sometimes as Rothwell—the six claimants were all negligently exposed by the defendant employer to asbestos dust. That exposure had three foreseeable consequences. The claimants developed pleural plaques; they are at risk of developing one or more long-term asbestos-related disease; and they are at risk of developing anxiety. In fact, Mr. Grieves developed a recognised psychiatric injury.
Generally speaking, the view developed in the courts up until that case was that aggregating the three elements meant that sufficient damage to found a cause of action could be established. The Court of Appeal, in a majority decision, decided that that was not so and that the three had to be looked at disjointedly. In those circumstances, compensation would not follow. I prefer the dissenting judgment of Lady Justice Smith, who took the round approach adopted in the courts for the previous 20 years, when the question was simply a question of fact to be determined in the individual case.
This issue is important. In the judgment of the Court of Appeal, the word “policy” appears in the words of the Lord Chief Justice. Policy, in my view, is a matter for this House as much as, if not more than, one for the courts. It is for this House to decide whether people who suffer from pleural plaques ought to be compensated, as they have been for the past 20 years. The Lord Chief Justice said that it was important that claims be brought within reasonable time, and I agree. He said litigation should be finite, and I agree with that, too. My concern is that the very fact of bringing a claim for pleural plaques means that liability is determined in relation to the claimant’s exposure to asbestos in a timely fashion, early on when the diagnosis of pleural plaques was made. If, 10 or 15 years later, the victim happens to contract one of the more serious diseases—asbestosis or mesothelioma—the issues of liability have already been determined and decided through an award of provisional damages and the victim can come back to the court quickly, if the case cannot be settled, to obtain the compensation needed for the substantial sum. That is why the question of pleural plaques is important when one is considering timely consideration.
We need to look at the effect on the victim, too. In the Grieves case, the victim developed a recognised psychiatric injury but, because the Court of Appeal had concluded that pleural plaques was in itself insufficiently significant, he could not claim for the psychiatric injury because, as we know from other precedents, it has to be linked to a physical injury in the first place.
Mr. Heald: I have already set out one or two examples, but I should like to give another—the measles, mumps and rubella vaccine. If somebody was worried about the risk from the MMR vaccine, could they not bring a claim under new clause 7? The situation would be similar with almost anything else, such as exhaust fumes or particulates. If there was anything that a person was worried about, they could bring a claim under that provision. Does the hon. Gentleman really think that that is sensible?
Mr. Dismore: I do not agree that my new clause would have that effect. The hon. Gentleman will be aware that MMR cases have been litigated ad extenso for some considerable time without great success. I dealt with his other points in my earlier intervention.
The provision is important because many cases result in fatality, as has been said, so if we can resolve the pleural plaques issue early, those fatal cases could be resolved quickly, too. As a consequence of the cases I mentioned, there has been a huge windfall for the insurance industry but a great loss for those who suffered from the negligence of their employers.
The proper basis for an award in respect of pleural plaques is straightforward. We should have to show initial exposure to asbestos, coupled with ingestion, followed by permanent penetration of the chest by asbestos fibres—as happens with pleural plaques—that remained as a catalyst for future harm causing physiological damage, creating the risk of a future disease that can be assessed and engendering suffering in the form of anxiety. Putting all those things together gives us something that is rather more than an insignificant injury, and it should be compensatable.
All the policy issues point in the same direction, too. The existence of pleural plaques requires that a person is exposed to asbestos in the first place. The large number of potential victims indicates that a significant section of society was unprotected, notwithstanding the legislation that was supposed to help at the time. This is not a case of employers being retrospectively made responsible for something for which they could not plan. The economic needs of employers have to be placed in the context of their obligations to society as a whole. There are no floodgates to be opened, because, until January this year, such claims had existed for more than 20 years without the courts being overwhelmed by litigation. The insurance industry has known of the problem—as has industry itself—for a long while and has had plenty of time to make provision for the potential cost of claims.
To accept that organic change—which is what pleural plaques amounts to—is actionable is not to lower the burden of proof, because it will still be for the claimant to show that exposure was the fault of the employer. To accept the defendants’ arguments sends out the wrong signals: to employers about the need to take care; to the insurers about their tactical use of the justice system, as in the Grieves and Barker cases; and, more important, to the general public about the ability of the courts to deal with problems that they have been handling for 20 years without ever having been doubted. If we are concerned about certainty in the law, could there be a more important example than this one? We have to find the right balance between claimants and defendants and, as a consequence of that Court of Appeal judgment, the present balance in relation to pleural plaques is woefully wrong.
My second new clause deals with the Crown Proceedings Act 1947. When my hon. Friend the Minister opened the debate, she gave the arguments that I was expecting. She referred to the debates in 1987 about retrospectivity. I remember them well, because I was lobbying for retrospectivity at the time, although not so much in the context of today’s debate. In 1987, the explosion of asbestos litigation had not really
occurred; cases were just starting to come through, but not in the great volume that we see at present, and certainly not in relation to the problems of service personnel.
The argument about limitation was primarily to do with ordinary accident claims where the limitation period would have been three years. If my new clause were accepted and implemented, it would not affect those cases, because they would be caught by the limitation period, which has long expired, post-1987. Furthermore, the provision does not deal with accidents; it is limited to disease, with particular reference to asbestos.
My hon. Friend referred to the 2001 review. I remember lobbying the Ministry of Defence about that and listening to its rather spurious arguments that the benefits available through the war pensions scheme were equivalent to common law benefits if calculated over time. I am sorry to say that the MOD was not prepared to put those calculations to an actuarial assessment to find out who was right—it or me. I am pretty sure that I was right.
My hon. Friend was correct in saying that the problem arises from section 10 of the Crown Proceedings Act 1947 and its replacement by the provisions of the Crown Proceedings (Armed Forces) Act 1987, which repealed it in large part. The best illustration of the problem is the 1998 case of Quinn v. the Ministry of Defence, where the claimant, during his service in the Royal Navy, had stripped asbestos insulation from boilers and pipes that caused both pleural thickening and mesothelioma. The Court of Appeal held that the Crown had immunity from litigation due to the 1947 Act, because the exposure to asbestos took place before 1987, even though the symptoms did not manifest themselves until long after. That is the basic problem with which we are grappling in relation to asbestos. We are trying to put right problems created by the law as it stood in the past and by exposure to diseases and hazards long ago.
The difficulty is that that serviceman, like many others, was exposed during his service—for some of them it was during their national service—especially in the Royal Navy but in other branches of the forces, too, long before the 1987 Act was amended. Years later, they find that they have a medical condition, yet they have no legal redress whatever. That is a manifest injustice, which is made even more unjust by the sort of cases that I used to deal with on behalf of civilians who had worked in MOD dockyards side by side with servicemen stripping, repairing or refurbishing ships. The civilian was entitled to bring a claim for damages and obtain £150,000, or whatever the amount happened to be, as compensation for mesothelioma, yet the person at his side, who had done exactly the same job but happened to be wearing the Queen’s uniform, could not receive compensation. That is not fair or right, which is why I passionately believe that we must accept the proposals that I have promoted today.
I hope that my hon. Friend will ask the MOD to reconsider its position. It is grossly unfair that people exposed to exactly the same hazard are treated so differently due to a mistake made in 1987 when people did not realise the problems that would occur 20 years later.
David Howarth: I remind the House of the interest I declared on Second Reading, which is that I occasionally receive a royalty or two from books I wrote or to which I contributed on these subjects.
Like my hon. Friend the Member for North Southwark and Bermondsey (Simon Hughes), I want to raise a point about the drafting of new clause 13 that may have effects that the Government do not intend. I ask them to consider my points before the Bill goes back to the House of Lords.
The problem is that the Barker case was about two different issues. The first related to the Fairchild rule, which was a relaxation of the rules of causation in favour of claimants, and whether it would extend to cases where part of the exposure to asbestos had come not from an employer but from a period of self-employment by the claimant. The second issue has caused the most difficulty: whether the apportionment of damages should be made on the basis of the traditional rule of joint and several liability or a new rule of proportionate several liability.
The problem in Barker was that three of the Law Lords decided the first issue, the extension of the Fairchild rule, in favour of the claimant, but the second issue—switching to proportionate several liability—in favour of the defendant. More to the point, the Law Lords linked those two decisions; they come as a package deal. I will read from the speech by Baroness Hale of Richmond in the House of Lords, which makes the point very clearly. In paragraph 128, she says:
“One way of explaining Fairchild is that all were in breach of duty and one of them must be guilty, so that it made sense that all should be liable. That rationale does not apply, or certainly not with the same force, if there are other, non-tortious causers in the frame. But if the tortious exposers are only liable in proportion to their own contribution to the claimant’s overall exposure to the risk of harm, then the problem does not arise.”
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Why is that a problem? It is a problem because, given that those two issues were decided together as a package deal, if one of them is reversed, that raises the question of what the courts will do about the other. If we simply go back to joint and several liability, overturning the decision of the Law Lords on the issue of apportionment, the danger is that the Law Lords will say, “In that case, the claimant in Barker can’t win at all. In fact, there is no liability to the claimant in Barker.” If that happened, that claimant would be in a worse position after the Bill than before it. At present, under the Barker decision, at least they can get some damages if they can find one of the various employers who will pay—who is in a position to pay. However, after the Bill goes through, there will be no liability at all and they will get nothing.
The question is whether the drafting of new clause 13 overcomes that problem. I fear that it does not. One argument might be that subsection (2)(a) of new clause 13 states:
“irrespective of whether the victim was also exposed to asbestos—
(i) other than by the responsible person, whether or not in circumstances in which another person has liability in tort”.
One could say that that covers the problem and that what is intended is to reverse only the pro-defendant aspect of Barker, not the pro-claimant aspect. The trouble with that interpretation of the new clause is the way in which subsection (1) is written. I hope that the Minister will take this point on board. Subsection (1) states, “This section applies where” and then it lists four conditions. The fourth condition is:
“the responsible person is liable in tort, by virtue of the exposure mentioned in paragraph (a)”.
In other words, not by virtue of the exposure mentioned in subsection (2). That means that subsection (1) comes first and one has to decide whether the claimant was liable in tort on the basis of the old law, or the law as the courts put it, not on the basis of the rest of the new clause. That gives rise to a serious problem in relation to what the effect of the new clause will be.
There are two points for the Government to clear up. First, what exactly do they intend in relation to Barker? Do they intend to reverse only the aspect of Barker to do with joint and several liability and to leave alone the case’s extension of the Fairchild rule, or do they intend to allow the courts to decide what to do about that other aspect? Secondly, if they do intend that both aspects of Barker should be decided in favour of the claimant, are they confident that the present drafting of the new clause achieves that aim? All I ask them to do is to consider those questions.
Mr. Doran: I add my congratulations to those already given to the Minister by my colleagues. I draw attention to my entry in the Register of Members’ Interests and declare an interest as a member of the GMB union and an interest in relation to Thompsons solicitors, who were both involved in representing Mrs. Barker. The point made by the hon. Member for Cambridge (David Howarth) is certainly of interest and needs to be studied, but I am not sure that the mechanics of the procedure in this House and the other place will allow it to be examined properly in the time scale available. However, I would be interested to hear the Minister’s comments.
I want to be brief, because we have had a full discussion and there has been full consideration. It is important that the Government responded so speedily and compassionately to the problems thrown up by the Barker case. Many previous speakers have mentioned the aspects of mesothelioma that create difficulties—the lack of warning and the speed with which the illness has fatal consequences. The speed is extremely important.
My major point is that none of these matters would have come before the House had it not been for the work of the trade unions, who supported Mrs. Barker and the other pursuers who were involved in the cases being decided by the House of Lords. We are talking about ordinary people doing ordinary jobs who have been subjected to the various elements that caused their illnesses, but who are not in a position, because of the complexity of the issues that they face and the expense, to pursue such matters on their own behalf. The legal aid system is not as helpful as it once was in that respect. Trade unions support their members in this way not just in run-of-the-mill cases, but in difficult cases such as the Barker case and, previously the
Fairchild case. People are supported by the trade union movement to open up the law, to probe it and to deal with these difficult issues. In this particular case, that has led to some difficulty for claimants.
I raised an issue with the hon. Member for North-East Hertfordshire (Mr. Heald) in relation to the problem that the Government face when, on the one hand, they represent the employer in many of these cases——as they do in the case that we are discussing, through the inheritance of the responsibilities of the British shipbuilding company—and, on the other hand, they have to respond quickly to the consequences of the decision. I am sure that he makes the point in all seriousness, but it is important that we on this side do not take it too seriously. If a Minister were faced with legal advice to say that the Fairchild decision makes the Government potentially liable for massive damages because it has fundamentally changed some of the principles of liability, it would be negligent of Government in those circumstances not to have tested the situation. I am sure that any Minister faced with that legal advice would be left with virtually no alternative but to follow it. From the outside, it looks daft and a waste of public resources, but, in any circumstances, anyone with any knowledge of what happens in government would know that that is not the case. It is a course that had to be pursued.
I welcome the extension of the legislation to Scotland. The Scottish Parliament is in recess and has been for the past 10 days or so, so it would not have been possible to legislate there. It is important that, as part of the devolution settlement, we have the process known as the Sewel motion to allow those important decisions to be taken for the whole of the UK. In Scotland, the senior court in civil cases is the court of the House of Lords, so the judgment in Barker will apply in Scotland as much as it applies in England and Wales. That aspect is extremely important.
New clause 6, which was tabled by the hon. Member for North-East Hertfordshire, is a distraction. The immediate priority is dealing with the consequences of the Barker case. Discussions are going on that might lead to a scheme for arbitration, but we will have time to reflect on that in the future. The urgent priority is the Barker decision, so I hope that the Government will not be distracted from that.
Mr. John McFall (West Dunbartonshire) (Lab/Co-op): I support new clause 13 and endorse the actions that have been taken since the House of Lords judgment in the Barker case, which caused a lot of turmoil in my constituency, as it no doubt did in others. Clydebank, which is in my constituency, is the proud home of shipbuilding, with the Queens and other ships being built there. However, a consequence of that is that we have the highest incidence of mesothelioma and asbestos-related diseases in the United Kingdom. The judgment is thus crucial to the best interests of many of my constituents.
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