| Previous Section | Index | Home Page |
4 Jun 2008 : Column 262WH—continued
The second example, which raises an even more serious problem, relates to people who were exposed to large amounts of asbestos, but who have not developed plaques.
David Howarth: As yet. Such people may not, however, develop plaques before they develop mesothelioma. The problem is that those people, who are in exactly the same position in terms of the risk that they face, would not benefit from the hon. Gentleman’s suggestion. There is a question of fairness across these various groups of possible claimant, which is a problem.
As the letter from the consultant expert mentioned by the hon. Gentleman stated, having pleural plaques does not in itself cause an infirmity—it might, and if it does, the right to sue will still remain—but simply marks the fact someone has been exposed to asbestos. At the same time, many people who do not develop plaques, but who have been exposed to asbestos, are at exactly the same risk of developing mesothelioma or asbestosis and should, therefore, be treated in the same way as those who have developed pleural plaques.
Hon. Members have already discussed why cases came to the House of Lords when they did. The House of Lords decided that it was not possible in general to sue for the future risk of contracting a disease and that people had to wait until something bad happened to them before they could sue—that was the ruling in the case of Gregg v. Scott in 2005. As a consequence, it became almost inevitable that the pleural plaques cases would go the way they did.
Jim Sheridan: I am closely following what the hon. Gentleman is saying. My point is that the House of Lords did not wake up one morning and say, “Let’s deny compensation to pleural plaques sufferers.” What happened was a direct result of the insurance companies’ challenge.
David Howarth: I fully accept that the situation has come about because the insurance industry took advantage of the new legal situation, but the insurance industry did not create that situation. The situation was created in a different context—that of medical cases—and related to the general point about whether someone was allowed to sue for risks that had not yet arisen. There is a gigantic legal debate about that general question, which has not yet been resolved.
Linda Gilroy: I, too, am following closely what the hon. Gentleman is saying, because a number of people have deployed these arguments. In addition to the point made by my hon. Friend the Member for Paisley and Renfrewshire, North (Jim Sheridan), there is the fact that the conditions that we are talking about were compensated to a modest extent for 20 years—we are talking about sums of £5,000 to £10,000. Does the hon. Gentleman not think that that makes this situation somewhat different and explains why our constituents feel that it is so unfair?
David Howarth:
I understand the feeling of the hon. Lady’s constituents. My point is simply that it was thought before the Gregg v. Scott case that it might be possible to sue for risk on its own. That is an unresolved
issue in the law, which goes back to a House of Lords case called Hotson v. East Berkshire relating to medical negligence. When the Gregg case was decided, however, it became clear that people could not sue for future risks.
The question whether people should be able to sue for future risks is a difficult one. Let us say that there are 100 people and that there is a 5 per cent. chance that some of them will develop a disease or condition. If people were allowed to sue for future risk, one would give each of those 100 people 5 per cent. of the future damages to which they would be entitled were they to get the full disease. The problem with that is that 95 of them would turn out to be overcompensated, because they would get 5 per cent. compensation even though they did not get the final disease, while five of them would not get compensation for the whole seriousness of the condition. We might then say, “Let us give the 5 per cent. full compensation, but still give the 95 per cent. 5 per cent”, but the defendants would complain that they were paying out almost double the compensation than if they had simply compensated people with the disease.
That is a big unresolved problem with the law, and the consequences of changing the whole law are not yet worked through. It is not clear that it would be a good idea. However, if only the bit concerning pleural plaques is changed, the result is the anomaly of how to deal with people in exactly the same position—including people exposed to asbestos—who would benefit if the whole law were changed, but not from the suggestion of the hon. Member for Barnsley, West and Penistone.
Mr. Clapham: The reality prior to the House of Lords decision was that when a man was found to have pleural plaques and received compensation the insurance industry would approach him to ask whether he was prepared to accept a full and final settlement or an interim payment. Such individuals were put in an invidious position, which my hon. Friend the Minister has removed as a result of her work on the Child Maintenance and Other Payments Bill. The payments with respect to mesothelioma will address that situation. The overlapping of different statutes has created a betterment. It seems to me—the hon. Gentleman admits this—that the law cannot deal with every problem. Yet the solution that I have put to the Minister would reverse the situation and at least make things better, although not in every case because some cases would be missed.
David Howarth: I accept the hon. Gentleman’s point that there would be an improvement for some cases by following that course of action. The question then is whether it would be right to follow it for all cases. I have spent too much time in my remarks understanding the Government’s difficulties, and I do not want to understand them any more, but I recognise that they have a responsibility to the whole range of possible claimants under tort law.
I have only a couple of minutes left, and I want to spend them agreeing with the second of the suggestions made by the hon. Member for Barnsley, West and Penistone, which is crucial. The real problem now is that a large number of people are potential claimants with respect to serious disease at some point in the future. When they develop those diseases, they can
claim, but what happens when we get to that point and find that the company has gone out of existence, because it is insolvent, or, worse, that as in the Cape cases, which hon. Members will remember, there has been some corporate engineering, so the only bit of the company that is liable is a bit that does not have any money? Those are the possibilities against which the Government must act.
There are two points to make: first, the law must require some sort of contingent liability fund to be set up, either directly by the defendant companies, or through the insurance industry; and secondly, we must make sure that future victims will be allowed to claim directly against the fund, and not be told that they can claim only against insolvent companies, and that there is no point. Progress can be made on both those points now, without a vast amount of thought about the consequences for fairness in the rest of the law. That is why I fully support the hon. Gentleman’s second suggestion and urge the Minister to think about that suggestion separately from his first.
10.34 am
Mr. Henry Bellingham (North-West Norfolk) (Con): I, too, congratulate the hon. Member for Barnsley, West and Penistone (Mr. Clapham). He made a good and telling contribution on 23 January, but there was not enough time in that debate for every participant to make a long speech. He presented his case very well, with passion and sincerity. It was most heartfelt.
The issue as a whole affects not only the industrial heartlands of the country, but almost every constituency. Indeed, a significant number of my constituents in North-West Norfolk, which is hardly one of our great industrial heartlands, suffer from pleural plaques problems. They are either retired people or people who have worked in the construction, lagging or other industries. It was interesting to hear the speech of the hon. Member for Plymouth, Sutton (Linda Gilroy), and to learn about her experience and expertise in connection with shipbuilding and related industries in her constituency.
An aspect of the debate that has struck me is the remarkable success of campaigners on behalf of employees exposed to asbestos, dust and related problems. The history of the issue encompasses the Pneumoconiosis etc. (Workers’ Compensation) Act 1979, the action taken to assist mesothelioma sufferers, the Compensation Act 2006, which stipulated that negligent companies had to be jointly and severally liable, and part 4 of the Child Maintenance and Other Payments Bill, which the hon. Member for Barnsley, West and Penistone mentioned. There have also been changes to the civil procedure rules and a practice direction to ensure a uniform fast-track system for all mesothelioma cases. Significant progress can be seen if one looks across the whole spectrum.
Before the House of Lords ruling the law was based mainly on the 1980 case of Patterson v. Ministry of Defence, because a key finding in that case was the theory of aggregation: although the mere existence of pleural plaques could not give rise to a claim, when it was aggregated with the risk of anxiety the situation changed, and a claim could be mounted. The result was
that most of the cases were settled and, as the hon. Member for Plymouth, Sutton said a moment ago, most were settled at a fairly modest level. The average settlement was at about the £5,000 mark. Some claims were settled for less, at about £2,000, and some for slightly more, up to about £10,000; large amounts of money were not involved. However, for a pensioner or pensioner couple who had worked hard all their lives for probably pretty mediocre wages and who were suffering great stress and anxiety, such sums, although not exactly life-changing, could make the difference between worry about the future and the ability to afford a holiday, perhaps, or a few other things to cheer up their lives. That is why the difference to those families was significant.
The status quo ante was perfectly satisfactory, because those modest awards were being paid. The cost to the insurance industry was significant, but I do not think that a single insurance company experienced a reduction in profits or in bonuses paid to directors, or significantly increased the costs to other policy holders. The figure of roughly £1 billion has been mentioned, but we should not forget that the problem is a finite one, because the unfortunate truth is that many of the pensioners, retired employees and pensioner couples are now quite old. The context in which we are discussing the matter is one of greatly improved health and safety at work so the problem will eventually go away, but there is an immediate crisis for the affected families.
It is a great pity that the House of Lords took the decision it did in Johnston v. NEI International Combustion, Rothwell v. Chemical and Insulating Company and the related cases, although I can understand why it did so. The hon. Member for Cambridge (David Howarth), who among other things is obviously an outstanding law lecturer—in fact, if I had spent less time in the pub when I was at Cambridge, and more time attending lectures by people like him, I might have got a better degree—explained in detail why the decision did not surprise him, and why it was in line with a growing and developing trend in tort case law. He mentioned the case of Gregg v. Scott.
One of the aspects of the House of Lords decision that interested me was the amount of medical evidence that is now on the record. In our debate in January, a number of hon. Members quoted medical experts. On one hand, medical experts Professor Mark Britton and Professor Tony Newman-Taylor, pre-eminent chest physicians and world-renowned experts on lung disease, confirmed that pleural plaques were not prevalent in the general male population and were an indicator of asbestos exposure. In other words, one cannot develop pleural plaques passively or as a result of smoking or other activities. They were quite adamant in their advice on the House of Lords case.
On the other hand, the House of Lords quoted other medical experts, including Dr. John Moore-Gillon, then president of the British Lung Foundation, and Dr. Robin Rudd. Dr. Rudd, a leading consultant, was fairly adamant in his advice to the House of Lords that pleural plaques in themselves did not necessarily lead to any malignant problems or asbestosis, but in the letter quoted by the hon. Member for Barnsley, West and Penistone, he clarified his views and put forward a very different argument. I find that interesting. I hope that the Minister will call in Dr. Rudd and have a discussion with him to find out exactly why his view is changing. It
leads me to suggest that medical opinion is divided. A wider inquiry is needed. Surely she should consider setting up a royal commission, or at least tasking the Industrial Injuries Advisory Council to investigate the issue, to pull together all the medical evidence, get the experts in and see whether there is any consensus between the two sides. It certainly looks as though consensus is more likely, in light of what Dr. Robin Rudd has been saying recently.
The data are fragmented, as a number of Members pointed out. I am sympathetic to the idea of a medical register, but I note that the Association of British Insurers is against it and said in its briefing to Members:
“We know that some have called for a new database to record the details of people with pleural plaques. The ABI rejects this proposal. It would not benefit people with plaques, and may cause anxiety”.
However, it is essential to have those data.
The hon. Member for Cambridge suggested setting up a fund. The insurance industry has made the point that a pleural plaques sufferer who goes on to develop more serious symptoms or mesothelioma can sue. On the other hand, for someone who is ill and has a limited life expectancy to have to go through all the anxiety and stress of a case is completely unreasonable. That is why I am attracted by the idea that a fund could be set up to pay immediate compensation to anyone with pleural plaques who has developed a physical illness as a result.
I urge the insurance industry to move quickly to use some of the roughly £1 billion that it is saving to set up a fund. Why cannot the Minister join the insurance industry in helping to set it up? The official Opposition would certainly support her if she could persuade her Treasury colleagues to come forward with some money to help pump-prime a fund, on condition that the insurance industry puts up a majority of the money. Will she consider that idea carefully?
Will the Minister also consider exactly what the cost of legislation would be? I entirely accept the points made by the hon. Member for Cambridge: to introduce legislation to overturn the House of Lords decision could indeed lead to conflicts of interest and have significant implications for other types of tort. He mentioned blood transfusion victims; I am thinking, too, of people who have been subjected to toxic fumes, and other people subjected to various nuisances and torts who have not yet developed serious symptoms.
On the other hand, I do not think that it is beyond the wit of the intelligent lawyers in the Ministry of Justice to come up with a tightly-framed Bill targeted exactly at pleural plaques victims that would not lead to any precedents being set. If the Minister can move forward on that basis, the Conservatives would be sympathetic, and would help and support her, but will she tell us what such legislation would cost? We need to know where we stand and how many victims are out there. We need a proper register, and we need to know exactly what it would cost the Treasury.
I understand fully that the Minister’s budget is tight, but the debates today and on 23 January have shown the level of feeling in the country. That feeling has been articulated by hon. Members from all parties. People feel very let down. They feel betrayed by what has happened. They do not understand all the legal nuances and the arguments that have been put back and forth.
They do not understand what the insurance companies have been saying. What they do know is that a situation that could have given them some slight relief has been taken away, and they look to the Government to come up with solutions. The Conservatives will certainly support the Minister in any action that she takes.
10.45 am
The Parliamentary Under-Secretary of State for Justice (Bridget Prentice): I, too, congratulate my hon. Friend the Member for Barnsley, West and Penistone (Mr. Clapham) on securing the second debate on pleural plaques in six months. As the hon. Member for North-West Norfolk (Mr. Bellingham) said, my hon. Friend spoke persuasively in January, as did my other hon. Friends, and he has done so again today. He has spoken persuasively, cogently, powerfully and passionately about an issue that clearly raises great concerns among many of our constituents. We covered many of the same issues in the previous debate, but some issues were raised today that I want to consider a bit more. If I may, I will talk through some of the things that have happened in the past six months and then respond, as far as I can, to some of the particular issues raised today.
It is important to put on record again the fact that both the Ministry of Justice and the Government as a whole are absolutely committed to helping people who have been exposed to asbestos, as we have demonstrated in the initiatives that have been mentioned. The Compensation Act 2006 gives people who have contracted mesothelioma the opportunity to get their compensation more quickly, and the new practice direction for mesothelioma claims, which came into effect in April, will ensure that claims are resolved quickly and interim payments are made at the earliest opportunity.
As my hon. Friend said, the Child Maintenance and Other Payments Bill will provide up-front financial support for mesothelioma sufferers who were not eligible before, including those who were exposed as a result of contact with a relative, for example by washing their clothes. He kindly gave me credit for the measure, although I do not deserve it, as my colleagues at the Department for Work and Pensions took through the provisions. However, it shows the Government’s commitment across Departments to giving people suffering from a particularly horrible disease some security in the last few months of their lives.
The previous debate was secured by my hon. Friend the Member for Paisley and Renfrewshire, North (Jim Sheridan). I told him at the time that I would continue to hold discussions with hon. Members about the effects of the House of Lords decision to see whether there was a way for us to help and support people with pleural plaques. My right hon. Friend the Justice Secretary and I have indeed had further discussions with a variety of interested parties: colleagues, trade unions, the insurance industry and others. As the Prime Minister said in March in response to my hon. Friend the Member for Jarrow (Mr. Hepburn), the consultation work will take place soon. I apologise to my hon. Friends for the fact that the consultation paper has not been published. I shall return to that point in a moment.
We take the problem of pleural plaques very seriously. The description given by the hon. Member for Cambridge (David Howarth)—he mentioned figures of 5 and
95 per cent.—demonstrated the complexities of the problems involved and explains why we have taken far longer to come up with a plan for pleural plaques than for mesothelioma, which was a much more straightforward case. Fortunately, at the time, the Compensation Act 2006 was going through the House, which allowed me to introduce an amendment to deal with it. Nevertheless, we have been actively exploring options on how to help those who have been exposed to asbestos and who have developed pleural plaques, which clearly is not the same condition as mesothelioma.
The House of Lords judgment raised very complex issues. I take the point made by my hon. Friend the Member for Barnsley, West and Penistone about Lady Justice Smith and the 2:1 judgment of the Court of Appeal in favour of the insurance industry. The House of Lords judgment was unanimous—I shall return later to the point that my hon. Friend made about psychiatric illness—and based on the fundamental principles of the law of negligence. We must be responsibly mindful of the complexity of the issues and the strength of the Law Lords’ findings.
I do not want to raise hopes unnecessarily. This is an incredibly complicated area, which the hon. Member for Cambridge articulated far better than I can, owing to his legal background and understanding of the issues. We have been carefully considering all possible options, and the consultation paper being prepared as I speak will deal in detail with the legal background, the available medical evidence and the advantages and disadvantages of suggestions made in response to the House of Lords judgment. We hope to publish that consultation paper by the middle of this month. The intention is that the consultation will run for 12 weeks, as is the case with most Government consultations, so that everyone with an interest can respond fully. We aim to publish our response before the Queen’s Speech in November.
| Next Section | Index | Home Page |