 House of Commons |
Session 2008 - 09 Publications on the internet General Committee Debates Damages (Asbestos-Related conditions) Bill |
Damages (Asbestos-Related Conditions) Bill |
The Committee consisted of the following Members:Chris Shaw, Committee
Clerk † attended the
Committee Public Bill CommitteeWednesday 1 July 2009[Hugh Bayley in the Chair]Damages (Asbestos-Related Conditions) Bill9.30
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. 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 1Pleural
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.
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. The
clause operates by declaring—deeming—pleural plaques to
be a personal injury constituting actionable damage. The object of the
exercise is to make sure that pleural plaques cases do not fail on the
grounds that
they do not meet one of the most important tests in a negligence case,
which is that there is legally actionable damage. Damage is the gist of
a negligence action; no one can sue for negligence unless there is
legally recognised damage. That is one of the most important principles
of the law. The clause ensures that, regardless of what the House of
Lords said in the Johnston case, a pleural plaques case will meet that
test. 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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