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Session 2008 - 09
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Damages (Asbestos-Related conditions) Bill

Damages (Asbestos-Related Conditions) Bill

The Committee consisted of the following Members:

Chairman: Hugh Bayley
Anderson, Mr. David (Blaydon) (Lab)
Bacon, Mr. Richard (South Norfolk) (Con)
Bellingham, Mr. Henry (North-West Norfolk) (Con)
Binley, Mr. Brian (Northampton, South) (Con)
Bottomley, Peter (Worthing, West) (Con)
Cawsey, Mr. Ian (Brigg and Goole) (Lab)
Clapham, Mr. Michael (Barnsley, West and Penistone) (Lab)
Dismore, Mr. Andrew (Hendon) (Lab)
Gilroy, Linda (Plymouth, Sutton) (Lab/Co-op)
Hemming, John (Birmingham, Yardley) (LD)
Hesford, Stephen (Wirral, West) (Lab)
Howarth, David (Cambridge) (LD)
Marris, Rob (Wolverhampton, South-West) (Lab)
Prentice, Bridget (Parliamentary Under-Secretary of State for Justice)
Scott, Mr. Lee (Ilford, North) (Con)
Sheridan, Jim (Paisley and Renfrewshire, North) (Lab)
Chris Shaw, Committee Clerk
† attended the Committee

Public Bill Committee

Wednesday 1 July 2009

[Hugh Bayley in the Chair]

Damages (Asbestos-Related Conditions) Bill

9.30 am
The Chairman: I welcome hon. Members to the Committee. I see the faces of many of those who have taken an interest in asbestos-related diseases for a long time. Before we begin consideration of the Bill, I have a few preliminary announcements. Members of the Committee may remove their jackets, if they wish, during our sittings. Will they please ensure that their mobile phones and pagers are turned off or are on silent mode during our proceedings? Before we start discussing the Bill, I call Mr. Dismore to move the sittings motion.
Mr. Andrew Dismore (Hendon) (Lab): I beg to move,
That, if proceedings on the Damages (Asbestos-Related Conditions) Bill are not completed at this day’s sitting, the Committee meet on Wednesdays at 9.30 am when the House is sitting.
May I welcome you to the Chair, Mr. Bayley? I hope that we shall not detain you too long. I have tabled the sittings motion, but I hope that we will not need it.
Question put and agreed to.

Clause 1

Pleural plaques
Question proposed, That the clause stand part of the Bill.
Mr. Dismore: Most people in the House know that, for 20 years before I entered Parliament, I was a personal injury lawyer. I suppose that I still am—once a lawyer, always a lawyer. I still have my practising certificate, but I do not take cases. I remain a consultant with my law firm, and people will know exactly how much I get next month, having had to declare it.
Rob Marris (Wolverhampton, South-West) (Lab): Tell us now.
Mr. Dismore: It is not a great deal.
As a result of my experience, I have maintained a keen interest in the development of personal injury law, and one of the issues that has been around for three years is compensation for pleural plaques—or, as the law stands, the lack of it.
Pleural plaques are a thickening of the lining of the lung, which is usually visible on an X-ray or a CT scan, and are caused by exposure to asbestos. They represent an increased risk—between 5 and 10 per cent.—of more serious asbestos-related diseases and, because of that, pleural plaques cause real anxiety and stress for those who have them. It is hard to imagine someone’s fear if they are at risk of developing a disabling illness, such as mesothelioma, which is painful and always fatal.
Until recently, pleural plaques were compensated at common law. Since 1984, there have been a series of cases mainly against the Ministry of Defence, the leading one being Church v. Ministry of Defence, when it was decided that the condition constituted an injury, enabling damages to be claimed. The amount of compensation has varied from up to about £7,000 down to between £3,000 and £4,000 for provisional damages, and as high as £15,000 for full and final settlement of a claim.
In the 2006 case of Rothwell v. Chemical and Insulating Company Ltd, the Court of Appeal found that pleural plaques are not compensatable, mainly on public policy grounds. The Court refused to aggregate the condition of pleural plaques with the anxiety and distress that they cause, deciding that each individual condition is not compensatable and that courts cannot look at the aggregate of both pleural plaques and the psychological conditions that they cause.
In autumn 2007, that decision was upheld by the House of Lords in Johnston v. NEI International Combustion Ltd. In fact, it was a consolidated appeal, including the Rothwell case, with the House of Lords deciding that pleural plaques were not compensatable. The Government held a consultation, which ended in October last year. We are still awaiting the outcome of that consultation, which included three different options: a no-fault payments scheme, presumably funded by the taxpayer, only for historic cases prior to the House of Lords ruling; a general no-fault scheme, which would relate to historic cases and those in the future; and a return to the common law scheme. The Government have so far not made their position clear about which they want to do.
Clause 1 is the meat of the Bill. It is modest. All the Bill seeks to do is to turn back the law to what we all thought it was prior to the decision in the House of Lords. It relates purely and simply to pleural plaques. It maintains the basic principles of negligence or breach of statutory duty as the test for liability. Causation and the burden of proof that the claim exists are still on the claimant.
The clause simply states that pleural plaques are a personal injury constituting actionable damage and that people may recover damages in respect of them, but nothing affects the normal operation of the rule of the law of negligence and breach of statutory duty. I hope that the clause will find favour with the Committee.
David Howarth (Cambridge) (LD): It is a great pleasure to serve under your chairmanship, Mr. Bayley. As the hon. Gentleman confessed, once a lawyer always a lawyer. I was an academic lawyer in precisely the same field. Just as his earnings might well be revealed this month, my rather pathetic royalties from various works in the field will soon be revealed as well. I have a few questions, which the hon. Gentleman might be able to answer, or the Government might, if they are to come up with a comprehensive scheme to solve the problem.
Hon. Members know that I have been particularly concerned about one aspect of the House of Lords decision in the pleural plaques case, which the hon. Gentleman has not yet dealt with. I want to put on the record that I am still worried that his solution does not obviously solve the problem that I have in mind, which is the problem in the Grieves v. Everard case. That was a pleural plaques case, but with an extra element, which should have made the case more easy for the claimant to win than other cases. That extra element was that the victim was suffering from a recognised mental illness as a result of the pleural plaques that had been discovered in his lungs.
The law on psychiatric damage is extremely confused and is hostile to claimants, which is completely at odds with modern views about mental illness—as I explained in a Westminster Hall debate that we had on the subject, so I do not want to go into details again. The hostility of the courts towards psychiatric illness goes back to a time when not everyone was convinced that mental illness had reality and when people believed that mental illness could easily be faked. That hostility is completely inappropriate now, in an era when we fully recognise that mental illness is illness. Someone with depression is just as ill as someone with a broken leg.
In the Grieves case, however, that hostility to claimants with psychiatric illness continued in the House of Lords. Mr. Grieves was told that he could not claim, for a variety of reasons, one of which amounted to saying that a person of ordinary fortitude would not react to being told that they had pleural plaques in such a way as to cause them depression. I find that rather difficult to follow, because that was what happened in reality. The judgment seemed to be blaming the victim. If someone suffers an ordinary injury and it turns out to be worse than expected because of some pre-existing condition of the victim, the victim does not have compensation reduced. The defendant, whose fault the whole thing was, has to take the risk of that extra injury. The ordinary fortitude rule seems to be unfair.
In addition, there was a notion that the real problem was that the doctor had told Mr. Grieves that he had pleural plaques and somehow it was the doctor’s fault that the victim developed psychiatric illness, which again seems extraordinary. It was the employer who exposed the victim to asbestos. It cannot really be unexpected that a doctor would tell a victim of a condition.
There was also a sense that there was no stressful event caused by the employer but that the stressful event was caused by the doctor or the victim himself. All those notions are hostile to victims who have a perfectly valid claim. I am simply concerned about whether clause 1 helps victims in those circumstances, because subsection (1) says:
“Asbestos-related pleural plaques are a personal injury which constitute actionable damage.”
It does not mention psychiatric illness.
There are a number of possible relationships between the concept of personal and psychiatric injury, which the courts have explored over the years, and the law is not entirely clear. One view is that psychiatric illness is simply a form of personal injury. When I was an academic, that was the view I tended to take, but it is not the view that the courts have taken over the years. Some courts have tended to separate personal injury and psychiatric illness to a great extent, so I am not sure that clause 1 would solve the problem in the Grieves case. I hope that when we get to a final answer, we will address the problem of Mr. Grieves. That is my fundamental point.
I want to make one or two other points about clause 1. As the hon. Member for Hendon said, the object of clause 1 is to leave the general law of negligence alone and simply deal with the one specific point of the actionability of pleural plaques. I am grateful for that, because a difficulty in this area is that the law of negligence is a very delicate flower. We do not want to upset the whole thing and interfere with how it works just by accident, by trying to solve a particular problem. He has not quite got over the problem of causation, as one would hope, because he has used the phrase “asbestos-related”, and we still need to think about how a cause is liable to work in that context. More important than that, he has not addressed the question of damages—how much compensation someone would get. He has deliberately left that alone and I want to ask him what he expects the measure of damages to be under his clause.
The hon. Gentleman referred to taking the law back to where it was before the House of Lords decision, but the law before that decision assumed that pleural plaques were actionable, not just because an Act of Parliament said that they were, but because there was an assumption that there was some sort of actionable damage at common law. If we take away that assumption, the courts will start again and will be looking at the law anew. They will not be going back to the previous law in terms of the amount of compensation; they will be thinking about it from the start.
There is a question about the extent to which anxiety will be a part of the measure of damage. In ordinary law, pure anxiety—pure emotional distress—is not recoverable. One cannot get damages just for distress. Distress, though associated with personal injury in some way—for example, with pain—attracts a degree of compensation, but in most pleural plaques cases there is no physical pain at that point of the disease, but simply anxiety about the fact that one has pleural plaques. I am concerned about whether the courts will go along with offering compensation for anxiety. If they do not, we could have a pleural plaques case in which there is no other disability at that point. Pleural plaques are an indicator that something might happen in the future, but most of the time, there is no disability at that point.
I am concerned that we will end up in a situation in which the courts say that something is an actionable loss because it is deemed to be so by clause 1, but there is no other way in which we can measure damages. The damages would therefore come out as either zero or nominal. I do not think that that is what the hon. Gentleman intends, so I want to get on the record what he does intend.
9.45 am
The Parliamentary Under-Secretary of State for Justice (Bridget Prentice): It is a pleasure to serve under your chairmanship, Mr. Bayley. Before I comment on clause 1, I say to the Committee that we have been dealing with this issue for some time. I am beginning to lose count of the number of debates on pleural plaques to which I have replied.
The main focus of the clause is about providing compensation for pleural plaques. The Government recognise the legitimate grievance that exists on that issue, particularly for those whose claims for pleural plaque compensation could not proceed as a result of the decision by the House of Lords. They had a genuine expectation that compensation would be available, but that has now been denied to them.
When compensation was payable, people who were diagnosed with the condition were then able to establish the liability of their employer for negligent exposure to asbestos. That gave them the opportunity to get swifter compensation at a later date if a more serious asbestos-related condition developed. That benefit has now been lost as a result of the House of Lords decision. In recognition of those concerns, we carried out a consultation exercise on pleural plaques. That consultation proposed action to improve the understanding of pleural plaques, and to provide support and reassurance to those who have been diagnosed with them, to help allay their concerns. It also considered the issues that arise in relation to changing the law of negligence, and we invited views on whether that would or would not be appropriate. As my hon. Friend the Member for Hendon said, we sought views on the merits of offering no-fault financial support to people diagnosed with pleural plaques, and suggested two possible ways that that might be achieved.
In publishing the consultation paper, we emphasised the importance of ensuring that any decision taken by the Government had to be reached on the basis of the best available current medical evidence. For that reason, we asked the chief medical officer and the Industrial Injuries Advisory Council to review the medical evidence during the consultation process. Published copies of those reports are in the Library, and I hope that they are available to members of the Committee and to other hon. Members.
Jim Sheridan (Paisley and Renfrewshire, North) (Lab): The Minister will be aware that the Scottish Parliament has recently overturned the decision to award compensation to people in Scotland. I work on the assumption that it also received medical advice. Does the Minister have any access to that medical advice, and will she make it available to the Committee?
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