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“Pleural plaques are not thought to lead directly to any of the other benign varieties of asbestosis-induced pleural disease”.
Dr. John Moore-Gillon has also said:
“Pleural plaques do not themselves ‘turn malignant’ and become a malignant mesothelioma”.
The issue is whether the development of pleural plaques amounts to an actionable injury. I would argue that, if there is a causal link between the suffering and the employment that caused the suffering, there is clearly a case in law. If there is no such causal link or no quantifiable suffering, there is no case in law.
Michael Fabricant (Lichfield) (Con): Is not the extent of the pleural plaques a key point? In themselves, they can be asymptomatic—that is, they present no symptoms. Contrary to the example given earlier, if people are not suffering from a particular dysfunction, it could be argued that there is no cause for compensation to be paid. Unless there is an X-ray or some other form of diagnosis, there is no way of telling whether someone has pleural plaques.
Mrs. Laing: My hon. Friend, as ever, makes a very good point, which helps the debate.
I take the point made by the hon. Member for Plymouth, Sutton (Linda Gilroy), which I think is the crux of the matter. She said that the hon. Member for Hendon was trying to widen the law so that not only the disease, injury and suffering but the fear of the consequences—and therefore the psychological effect of having developed pleural plaques—would be taken into consideration. I see the hon. Gentleman nodding; I am glad I have identified the crux of the matter correctly.
This is rightly a narrow Bill about a specific issue. The principle behind the way in which personal injury law has developed in this country would be changed considerably by it—
Mr. Dismore indicated dissent.
Mrs. Laing: The hon. Gentleman says no. I shall certainly give way to him so he can explain that.
Mr. Dismore: The problem is that psychological injury in these circumstances can be looked at by the courts only if there is also a physical injury that they consider compensatable. My Bill simply tries to establish that pleural plaques are compensatable, so that a link could therefore be made to the psychological injury. There is no new principle involved.
Mrs. Laing: I thank the hon. Gentleman for his perfectly logical and reasonable explanation.
Mr. Andrew Robathan (Blaby) (Con): Unlike the hon. Member for Hendon (Mr. Dismore), I am not a personal injury lawyer, or indeed a lawyer of any shape or form, but it seems to me that he wishes to overturn a ruling of the House of Lords. For all I know, he may be right to want to do so, but does it not seem strange that overturning such a ruling should be reliant on him? I would rather have expected the Government, if they felt that the ruling was unsound, to have come forward with their own proposals to improve the law. I have to say that we are going through a fairly strange constitutional procedure when a Back Bencher is determining, on a Friday when the Chamber is very empty, how to overturn a ruling of this country’s highest court.
Mrs. Laing: My hon. Friend makes an extremely good point. Clearly, there would have been no need for the hon. Gentleman to introduce his Bill had it not been for the House of Lords’ decision, which was quite clear on this matter. Indeed, it has been discussed in many different ways in this Chamber over the last several years since the case was first brought—quite rightly, long before it ever came to the House of Lords. I well understand why the hon. Gentleman has brought his Bill forward in an attempt to overturn the ruling, but we need to reflect that before the House of Lords finally made that ruling, the matter had been considered in great detail—year after year and on the basis of all the necessary evidence put before the various courts that had considered it. If he wishes to challenge the House of Lords, there is no way for him to do so other than by trying to change the law himself.
I agree, of course, with my hon. Friend the Member for Blaby (Mr. Robathan) that if the law is to be changed in this way, it should be for the Government to decide how best to do it, so I shall conclude shortly to allow the Minister to give us the Government’s opinion.
Michael Fabricant: We can all tell from my hon. Friend’s accent that she is Scottish and she will be aware that the Scottish Parliament passed similar legislation. Is she aware of whether any additional costs were created for Scottish businesses and whether the legislation was applied to people who had not suffered from specific symptoms? Let me make it clear that hon. Members on both sides of the House will feel that people who have symptoms of any kind deserve compensation.
Mrs. Laing:
On that last point, I agree, of course, with my hon. Friend, who is absolutely right to mention the position in Scotland. I was just coming to that because the Scottish equivalent of the hon. Gentleman’s Bill was passed by the Scottish Parliament on 11 March this year. My colleagues there agreed with its general principles and, as I have said, I agree that it was right to bring forward this Bill today and I understand the hon.
Gentleman’s motives. Nevertheless, our colleagues in the Scottish Parliament rightly asked for the costs of implementing that Bill to be routinely monitored.
As I said a little while ago, it is our duty as a Parliament to balance the rights of the individual against the rights of the taxpayer and the public purse. I say that with compassion and sympathy for all those suffering from pleural plaques—asbestosis has terrible consequences, which we all understand—and it is on the basis of that sympathy and compassion that I conclude in order to hear what the Minister has to say.
2.4 pm
Michael Fabricant (Lichfield) (Con): I want to say a few words, because I, too, have had constituents with asbestosis coming to my surgery—although not, I think, as many as some other Members. Interestingly, I have been made aware of an example involving someone who was in the Royal Navy. The circumstances related not to putting on an asbestos mask, but to working with pipes that were clad with asbestos. That has also been a major cause of this particular dysfunction.
Where people are clearly suffering from a symptom, or have a condition that will clearly lead to a further condition that will have a symptom, there is an acceptance by every right-thinking person—and, indeed, an acceptance in the law—that compensation should be asked for and given. The problem with the Bill, however, is one of degree. A single pleural plaque, if restricted in size and in a certain part of the pleura, might not give a symptom to the person who has it. Neither is there any clear indication that a pleural plaque or group of pleural plaques will lead to asbestosis or any other lung condition; as my hon. Friend the Member for Epping Forest (Mrs. Laing) has said, several specialists have confirmed that.
The hon. Member for Plymouth, Sutton (Linda Gilroy) pointed out that some people might have concerns that this might develop into a condition, and I understand that, but there comes a point at which one has to say that an unreasonable fear cannot be compensated for—and, indeed, at which it would be unreasonable to ask for compensation. [Interruption.] I invite the hon. Lady to intervene, if she wishes to do so.
Michael Fabricant: I am happy to give way to the hon. Gentleman.
Mr. Dismore: The research done by Dr. Rudd, who is probably the pre-eminent doctor in this area, of 150 dockyard workers re-examined 10 years after the detection of asymptomatic pleural changes, shows that 10.3 per cent. had radiographic changes suggestive of asbestosis, and 4.5 per cent. had clinical and radiological signs of asbestosis. Therefore, although there may not be a causative link, there is certainly a statistical link, which is what creates the distress, fear and worry that the individuals concerned suffer from. That distress, fear and worry can be compensated if there is a physical injury to link it to—if there is a physical change, asymptomatic though it may be. The problem is how to compensate if there also has to be treatment.
Michael Fabricant:
I thank the hon. Gentleman for his comments, which were very helpful, because I now understand why people may well be concerned if they
are demonstrating this condition. Pleural plaques also appear for other reasons, of course, and people can have other concerns.
Mr. Robathan: I do not want the hon. Member for Hendon (Mr. Dismore) to misunderstand me, so let me first of all say that this is a very well-intentioned Bill. However, it seems to me that he was arguing that people should be compensated for stress, and—
Mr. Dismore indicated dissent.
Mr. Robathan: Well that is what the hon. Gentleman said, I think, and that seems to me to be a fairly strange route to go down, in what is a very serious matter to do with the development of diseases from which people die.
Michael Fabricant: I hear what my hon. Friend says, but I am not sure that I wholly agree with him. If someone has been working in circumstances where they have been in contact with asbestos—through no fault of the employer at the time, as they would not necessarily have known that asbestos was a clear cause of pleura and other types of lung dysfunction—then I understand why they might be concerned. The hon. Member for Hendon made a good point, therefore, and I can now understand the irritation, anger and disbelief of the hon. Member for Plymouth, Sutton about what I was saying earlier. This is a good example of why this sort of debate is useful, because in true and full debate information can sometimes be made available that might not otherwise become available.
Nevertheless, even if we accept, as I am now slightly inclined to do, the argument that there can be fear, concern and stress—to adopt the word used by my hon. Friend the Member for Blaby (Mr. Robathan) and the hon. Member for Hendon—if pleural plaques are in existence, the question remains: is there a damage done and is there a tort done when the pleural plaques are asymptomatic? I am talking about situations where they are so small and sparse that they are not showing any symptoms.
Jeremy Wright (Rugby and Kenilworth) (Con): Will my hon. Friend give way?
Michael Fabricant: I am very happy to give way, particularly to my hon. Friend, who is a practising lawyer.
Jeremy Wright: I should make it clear that I am not a practising lawyer, and I certainly did not practise in the field of personal injury. What I ask my hon. Friend to consider in the context of his remarks is clause 2(3), which, as I have no doubt that the hon. Member for Hendon has spelt out very clearly, clearly states the following:
“It is not necessary for a person seeking damages in respect of asbestos-related pleural thickening or asbestosis to prove that it has caused, is causing or is likely to cause impairment of that person’s physical condition.”
Does my hon. Friend agree that that is an extraordinarily sweeping statement and that it would be more helpful, in the context of this debate, if it could be a little more closely defined, so that if the hon. Gentleman’s argument is, as I suspect it may be, that these things are in
themselves pernicious, it can be explained why they are pernicious in the context of the recognisable law in this country in respect of establishing who is liable for damages?
Michael Fabricant: I thank my hon. Friend for that helpful remark and explanation of that part of the Bill, and I invite the hon. Member for Hendon to accept that particular argument. Surely the hon. Gentleman is not arguing—or is he?—that someone who is not suffering a symptom, and is not likely to suffer a symptom or any form of damage, should be able to seek compensation. Can he clarify whether he would be prepared to alter the wording of that particular provision if the Bill reaches Committee, in order to make it more acceptable?
Mr. Dismore: Of course I am prepared to consider the wording. The point is that this involves a physical change in the anatomy, and that is what I am arguing should be compensated, whether or not it causes symptoms, because that is the trigger for bringing the psychological claim. All wording is subject to discussion in more detail and amendment in Committee. I am happy to discuss things, and if someone has a better formulation, I am happy to consider it.
Michael Fabricant: I am grateful to the hon. Gentleman for explaining that. However, I feel very uneasy when he talks about any change in the body that may give cause for concern, although there may not be justifiable cause for concern. I can think of many other types of dysfunction, although many doctors would not classify them as such, that involve a change in the nature of the body that does not actually lead to anything that could be called an injury. I accept the earlier arguments that both he and my hon. Friend the Member for Plymouth, Sutton made that there is a fear that perhaps these conditions can lead to greater things, but what he has just said is far more worrying. If this principle were accepted, so many other types of changes that are asymptomatic and not in any way damaging could be open to claims for damages, based on the particular wording that he has just mentioned.
Jeremy Wright: I do not wish to add to my hon. Friend’s unease, but I suspect that I might be about to do so. Does he agree that what we should really be dealing with in this Bill is any impairment of the person’s mental or psychiatric condition and that that is really what the hon. Member for Hendon is describing? Is he not focusing his Bill on the wrong target? We should not be talking about a physical condition that may or may not have any further effects; we should be focusing on the effects. If the person has a recognisable mental impairment or a psychiatric effect caused by the worry that the hon. Gentleman has described—I am perfectly prepared to accept that that may be a worthwhile cause of action—it is that which is the cause of action, not a physical condition that may or may not lead to that harm.
Michael Fabricant:
I hear what my hon. Friend says, but earlier the hon. Member for Hendon did raise that point by saying that it is a question of cause and effect, and without recognition that pleural plaques are a cause for concern, there would be no basis for any legal
action. I wonder whether that is the case. I would have thought that the link could be established anyway— [ Interruption. ] I see that the hon. Gentleman shakes his head. He argues that no such link can be established.
I am uncomfortable about the Bill for several reasons. We all recognise that compensation must be paid to those suffering from conditions that cause distress and impairment, and I well remember arguments in this House about vibration white finger. For a long time, that too was ignored by Governments, but now compensation is paid. But if there are no symptoms at all, it is a different matter.
Mr. Robathan: That is the point that I wished to raise. Vibration white finger is measurable. It can be seen, and I have constituents who have it. Whatever the rights and wrongs of the issue, they are compensated, rightly. But the Bill specifically states that
“a condition...which...is not causing or is not likely to cause impairment of a person’s physical condition is a personal injury”.
Michael Fabricant: The point is that it can be the case only if it is written in the law. It needs to be written in the law because the common law says that where there is no injury, there is no basis for a claim. If the Bill were passed, we would therefore be in a worrying position.
I personally do not wish to oppose the Second Reading of the Bill. Nor would it be right to talk out the Bill, and that is not my aim. However, it involves some major issues of principle that not only affect this condition, but could affect a gamut of conditions. That is why it is so important to say that while we all recognise the real problems that have been encountered by workers in the asbestos industry and by those who have come into contact with asbestos as they served their country—particularly in the Royal Navy, but also in other branches of the military—we must recognise that this Bill, unamended, would make a major change in the law. That change would not be just, because it would allow claims to be made for damage when no damage had been incurred.
2.18 pm
The Minister of State, Ministry of Justice (Mr. David Hanson): I am pleased to speak at the end of this useful debate, which has probed some of the issues that we will undoubtedly wish to probe further should the Bill be given a Second Reading today.
I congratulate my hon. Friend the Member for Hendon (Mr. Dismore) on his efforts in introducing this Bill. He reflects the strong feeling on both sides of the House that this issue needs to be addressed. Indeed, it has recently been addressed by the Prime Minister, the Secretary of State for Justice and the Under-Secretary of State for Justice, my hon. Friend the Member for Lewisham, East (Bridget Prentice).
I am also grateful for the comments of the hon. Members for Epping Forest (Mrs. Laing) and for Lichfield (Michael Fabricant), who raised issues that we will wish to explore in any debate in Committee. I am also pleased to see my hon. Friends the Members for Barnsley, West and Penistone (Mr. Clapham), for Plymouth, Sutton (Linda Gilroy) and for Ealing, North (Stephen Pound), as well as my hon. Friend the Member for Paisley and Renfrewshire, North (Jim Sheridan), who raised this issue in an Adjournment debate on 11 February this year.
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