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Westminster Hall

Wednesday 4 June 2008

[Mr. Peter Atkinson in the Chair]

Pleural Plaques

Motion made, and Question proposed, That the sitting be now adjourned.—[Mr. Watts.]

9.30 am

Mr. Michael Clapham (Barnsley, West and Penistone) (Lab): This is the second Adjournment debate on pleural plaques since the Law Lords made their judgment on 17 October. In between those occasions there have been meetings with Ministers and a number of questions have been asked. I make no apology for that, because this is an enormously important issue to ordinary working people. It is nine months since that judgment was made, but it appears that there has been little movement. We want to see movement.

Pleural plaques are a clear indicator of asbestos exposure and compensation has previously been paid in respect of claims over the past 25 years. The Law Lords’ decision ended the practice of paying compensation and left thousands of people bewildered and confused about the likelihood of their ever obtaining compensation in future for a condition that they contracted through no fault of their own and, in most cases, because of negligent exposure.

I shall read a letter I received, as chair of the all-party group on occupational safety and health and its asbestos sub-group, from Mr. Rudd, who is probably the leading expert in the country on asbestos. He is a consultant at Barts and head of its mesothelioma research centre. He was also involved as the expert witness in the House of Lords case. His letter, in my view, clears up many of the fallacies connected with pleural plaques. I shall move from that to explore some of the issues that he raises.

Mr. Rudd says:

Last year there were 2,000 diagnoses of mesothelioma cancer, which is the third fastest-growing in the UK. Mr. Rudd continues:

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Mr. Rudd’s letter dispels a number of fallacies, some of which I shall mention. For example, he says that pleural plaques are a pathological change—in other words, a disorder caused by pollution of the body through the inhalation of asbestos fibre, which can arise only as a result of exposure to asbestos. He says that pleural plaques are symptomless but can cause discomfort. People who come to my constituency surgery suffering from pleural plaques and breathlessness contend, as victims, that the breathlessness has come on as a result of their pleural plaques.

David Howarth (Cambridge) (LD): I congratulate the hon. Gentleman on securing this second debate on the subject. However, will he confirm that the House of Lords decision does not affect people who have symptoms such as breathlessness that they can show were caused by pleural plaques? It is important that we reassure people that if they are ill, their rights have not been taken away.

Mr. Clapham: The hon. Gentleman will be aware that the House of Lords decision referred to the fact that people may be able to sue under contract law in cases where they have the condition. I am told by lawyers who have looked at this matter that there is no possibility of a case succeeding at contract. I agree that a worsening of the symptoms—for example, where diffuse pleural thickening is found—is a compensatable condition. In addition to compensation being pursued at common law, people may receive payment of an industrial injury disablement benefit where there is pleural thickening. I take the hon. Gentleman’s point on board. However, it is important to show the Minister and her colleagues that there is a great deal of concern, because although the consultant says that pleural plaques are symptomless, he mentions that they can cause great discomfort. People come to my surgery and I meet people at trade union conferences. I attended the Union of Construction, Allied Trades and Technicians conference only three weeks ago and met a number of people who contend that their condition of breathlessness is the result of pleural plaques.

I want to mention the background of one judge who dissented and had greater empathy, as that is an important factor in understanding why the judgment was made. I also want to draw attention to the hypocrisy of the insurance industry.

Dr. Ian Gibson (Norwich, North) (Lab): Before my hon. Friend moves on to talk about judges, I should like to put on record that in respect of bowel cancer there was a phenomenon called polyps, some of which turned out, after years of research, to be early cancers. Perhaps, if we did the research and investigation, we would find that some pleural plaques might, because of other instances, turn into cancers. There is no evidence either way, so we need more research in that field, too.

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Mr. Clapham: I am grateful for my hon. Friend’s intervention. The TUC holds that, in addition to mesothelioma, some 4,000 people die from cancer after exposure to asbestos and it contends that that is clearly the result of the asbestos exposure, although there is not the same evidence to substantiate that point as there is, for example, in respect of mesothelioma cancer.

The consultant said that, on investigation, chest X-rays show that less than 1 per cent. of the population are found to be suffering from pleural plaques. In other words, he dispels the view expressed by civil servants that pleural plaques occur generally within the population. That is not true. Pleural plaques occur only as a result of asbestos exposure and the country’s leading medical expert has clearly made that point. X-ray evidence shows that people with pleural plaques have been exposed to asbestos and it is not a condition found in the general population.

Roughly a third of people occupationally exposed to asbestos develop calcified pleural plaques after 30 years. After 20 years of exposure, 15 to 20 per cent. of people develop calcified pleural plaques. Again, that is clearly an indication that the body has been polluted and that there is an intensity of pleural plaques. One can well understand why people contend that their pleural plaques have caused breathlessness. As my hon. Friend the Member for Norwich, North (Dr. Gibson) said, more research might show whether when pleural plaques intensify, the condition relates to breathlessness.

We know that pleural plaques show a physical change in the lining of the lung in a person who has been exposed to asbestos—either occupationally and environmentally—and suffered the penetration of asbestos fibres. Mr. Rudd points out that people with pleural plaques commonly experience anxiety about the risk of mesothelioma and other serious diseases. As I said, I went to the UCATT conference a couple of weeks ago and talked to men with pleural plaques who work in the construction industry. This is what I was told.

John Scott, a UCATT official from the north-east who has been diagnosed with pleural plaques, said:

In other words, although he tries to take an optimistic view of life, he is brought back to reality by the knowledge at the back of his mind that he has pleural plaques and may develop mesothelioma cancer.

Tony O’Brien, a UCATT worker from London, was diagnosed with pleural plaques three years ago. He has been exposed to asbestos since he was 15 years old when he started an apprenticeship in the construction industry. He said:

In other words, the damage was clearly caused by negligence. It is a grievance that a person who has been negligently exposed to asbestos, which has caused a physiological change, is unable to make a compensation claim unless his condition worsens to the extent that he is fully disabled. I say that because when one sees someone who suffers from diffuse pleural thickening, they are often gasping for breath and cannot walk uphill. They are limited in their mobility and suffer from a worsening condition that causes a great deal of disability.

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The Law Lords’ decision means that a person with pleural plaques is unable to claim compensation unless the condition worsens. That is despite the fact that, as Tony O’Brien says, he knows he was negligently exposed and would not be suffering from the condition if his employer had taken more care, yet he cannot sue for compensation until his condition worsens.

Mr. David Anderson (Blaydon) (Lab): Not only would Tony know, but his employer would know too, and that is where the real negligence lies. This has not gone on in ignorance but while employers knew that they were using a substance that was poisoning their work force.

Mr. Clapham: I thank my hon. Friend for that intervention. It is true that those men were negligently exposed. Part of the grievance is that men who were exposed from the age of 15 in the same way as Tony O’Brien are now unable to pursue compensation. The grievance is made worse because we know that until the House of Lords decision, compensation had been paid in such cases for 25 years. Those men carry a grievance and I say to the Minister that they feel they have been badly let down.

The decision was made nine months ago, as the Minister knows because in July 2006 she played an important part in reversing the Barker judgment. The decision in that case was made in the House of Lords in May 2006 and by June the legislation to reverse it was on the statute book. However, there has been no movement on the matter after nine months, despite the concern caused among workmen who have been exposed to asbestos.

As my hon. Friend the Member for Blaydon (Mr. Anderson) said, it is clearly wrong that an employer should be able to evade their responsibility. The Minister should seriously consider that and think about overturning the Law Lords’ decision through legislation. As I said, it is nine months since that decision was made. People like Tony O’Brien and John Scott have every right to be concerned because the fact that the ruling stands is a green light to other employers to take risks in future with people’s health when using dangerous chemical or other substances at work. That is an important aspect of the judgment because employers will see that the employer in this asbestos case—pleural plaques—has been able to get away with it and does not have to pay compensation.

There are 274,000 businesses in the UK construction industry. It is a fragmented industry and the bulk of employers are small companies. Those companies will think that the decision allows them to get away with exposing their work force to asbestos. It is also a green light to small companies in other industries, so we need to be seen to make swift progress on the matter.

As I said, the Law Lords indicated that they had sympathy for the plight of the victims. It was suggested that some of the victims might sue for breach of contract. Lawyers have advised me that such cases would not succeed. I have always believed that there has been a failure to empathise in this case, and one can see that when considering the make-up of the judges. The dissenting judge, Lady Justice Janet Smith, comes from an altogether different background. She was a housewife for 10 years before she decided to study law, which she did through a correspondence course. When she became a barrister,
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she worked in Manchester for 20 years and represented occupational industrial disease cases and personal injury cases generally.

It was Justice Janet Smith who dissented in the case; she made the point that she thought that the men should be paid compensation. Her experience sets her apart from her colleagues. She was closer to the victims. She understood them; she knew the background that they came from and the industries that they worked in, and that led to her decision that compensation should be paid. Even in the High Court, Mr. Justice Holland accepted that the men had been negligently exposed to asbestos and that they should be paid compensation for their pleural plaques. I therefore urge the Minister to take up with her colleagues the need to move speedily to ensure that the men can claim compensation.

The Minister has to be aware that what we are debating is one of a series of attacks on asbestos victims by the insurance industry. We have already mentioned the Barker case. I have the transcript of an interesting interview that took place on Radio 4 on the day of the Law Lords’ decision: 17 October 2007. In that interview, the representative of the insurance industry, Mr. Nick Starling, said, “We”—the insurance industry—

However, when we juxtapose that statement with the action of the insurance industry yesterday in launching a test case on the trigger issue, it is shown to be pure hypocrisy. I understand that there will be a nine-week hearing in the court and the case will most probably finish up in the House of Lords. If the insurance industry is successful in the trigger case, it will be able to escape liability completely. The insurance industry comes back time and again, like a jackal, to tackle the issue of occupational disease caused by asbestos. It is therefore important that the Minister takes a stand.

The problem for the victim in such a situation is that there may be no other insurer to pay their claim. We shall see whether the insurance industry succeeds with the trigger case, which is really about deciding which insurance company should pay compensation and whether the tumour was caused when the fibre was first inhaled or whether the point at which the insurance industry should take things up is when the tumour develops, which may be 40 years afterwards. By that time, there may not be an insurer that can be traced and the company may not be in business, so if the insurance industry is successful, it could escape liability altogether. The case clearly shows hypocrisy on the part of the insurance industry: on one hand, it says that it wants to pay fair compensation, but on the other hand it is coming back time after time, like a jackal, to try to ensure that it can dispose of liability altogether in asbestos cases.

I understand that a consultation exercise will be launched in the next couple of weeks, but I strongly suggest to the Minister, even at this eleventh hour, that she does the following things. She has to emphasise to her colleagues the need to reverse the Law Lords’ decision. That is the best and cleanest way forward. Legislation could be framed to say that any permanent, irreversible structural change to the lung or lining of the lung diagnosed during a person’s lifetime as pleural plaques, pleural thickening or asbestosis caused by negligent
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exposure to asbestos shall amount to actionable damage and be compensatable and this shall include any action for such damage that has been struck out or discontinued since 17 October 2007. If we had legislation based on that principle, we could return to the situation that prevailed before the Law Lords’ decision, which would be fairer for everybody concerned.

The Minister might also consider insisting that the insurers use their considerable savings from the pleural plaques judgment. She may be aware of the suggestion that they made savings of £1.4 billion as a result of the judgment. She might like to insist that the insurers set up a fund for claimants who, through no fault of their own, cannot identify an insurer and whose employer has gone out of business. That would ensure that people caught in that situation could claim compensation from the fund. The Minister might want to raise that with the insurance industry.

If there is to be a consultation, I hope that the Minister has thought about the long delay that there has been—it is nine months since the decision—and will make it the shortest period of consultation possible. If we have to wait six months before we can start considering the options, people will feel that we have failed. It is important that we show people that we want to restore a fair compensation system.

9.56 am

Linda Gilroy (Plymouth, Sutton) (Lab/Co-op): I congratulate my hon. Friend the Member for Barnsley, West and Penistone (Mr. Clapham) on securing the debate, which is timely. He has led much of the work on this issue. I think that I am right in saying that he was involved in initiating the sub-committee of the all-party group on occupational safety and health, which deals with these matters and keeps them before us. I say to hon. Members who have not yet picked up a copy of the debate pack provided by the House of Commons Library that he has also done us a great service by prompting the production of that pack, because for those of us who continually have to explain to constituents where the problem stemmed from, it sets out clearly how we have come to this situation, which needs to be changed.

My hon. Friend spoke very clearly about how this condition comes from exposure to asbestos at work and how people who are exposed at work to asbestos are 1,000 times more likely than others to develop this condition. My constituency contains the Devonport dockyard, which sadly makes the area a hotspot for deaths arising from asbestos-related diseases. As my hon. Friend mentioned, one third of people develop disease from the pleural plaque condition that turns into a cancer within a 30-year period and 20 per cent. within 20 years. I think that those were the figures that he cited.

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