Bridget
Prentice: I do not have direct access to that advice. The
Scottish Parliament listened to medical experts at oral hearings. My
understanding is that those experts came to the same conclusion as the
chief medical officer and the Industrial Injuries Advisory Council, but
that they made no comment about whether the Parliament should make a
decision on allowing compensation. If I can get recorded evidence of
those discussions, I will make it available to the Committee and the
wider parliamentary estate.
Let me set out
a couple of the key findings in the two reports. The reports
demonstrated a consensus on a number of important issues relating to
the medical nature of pleural plaques. For example, it is generally
accepted that although a diagnosis of pleural plaques confirms that a
person has been exposed to asbestos, pleural plaques do not, in
themselves, produce any significant change or loss of lung function,
and are unlikely to cause physical symptoms. I shall come to what the
hon. Member for Cambridge said about psychological issues.
Pleural plaques do not become
malignant or lead to mesothelioma, or other asbestos-related diseases.
Any increased risk of a person with pleural plaques developing an
asbestos-related disease arises not because of the pleural plaques, but
because of that person’s exposure to asbestos. We are
particularly keen to address that point.
The hon.
Gentleman makes a fair point about the issue of psychological and
psychiatric illnesses. I know that he raised it before, in the case
that was also overturned by the House of Lords. The courts have
established the parameters governing claims for psychiatric illness,
and my understanding is that Mr. Grieves’ case was
decided according to those principles. We prefer the courts to continue
to develop the law in that area and we are publishing a consultation
paper—a response paper—today on damages, which reflects
that position. The hon. Gentleman may well want to come back to me once
he has read it.
I emphasise
that we are still considering what our response to the issue should be
in light not just of the reports I have mentioned, but of all the other
evidence that has been presented to us. As my right hon. Friend the
Justice Secretary indicated recently, we are committed to publishing
our response before the summer recess. We recognise fully that those
conclusions will have to address the grievances that have been outlined
by my hon. Friend the Member for Hendon and the hon. Member for
Cambridge, and be made in the context of the medical evidence and other
submissions.
The Bill
represents one approach to the issue, but a number of other approaches
could be appropriate and we want to assess the best response. It is
therefore not possible at this stage to give a firm indication of the
Government’s position on the Bill, pending those conclusions
being reached. For that reason it has not been possible for me to table
any amendments for consideration at this stage.
On that
basis, if the Committee decides that this clause—and the
others—should stand part of the Bill, it may be necessary for
the Government to oppose it, or table amendments to it, at a later
stage.
Mr.
David Anderson (Blaydon) (Lab): The hon. Member for
Cambridge spoke about people going for compensation and being told by
the courts that depression was not an issue that they could rule on, so
they could not get compensation. I have to tell the Committee that I am
massively depressed by having to keep coming back to the
issue—we have been listening to the debate for nearly two
years.
I am
depressed when I think that civil servants told solicitors that I have
been working with on this issue that pleural plaques are no more
serious than freckles.
I am depressed that in real life, people like Bob Chaplin
from Gateshead lost his wife, who was our mayor, this year. I am
depressed that I have to keep going to fundraisers organised by people
like Anne Craig, who lost her husband. People such as Chris Knighton do
tremendous work to raise money, when what they should be doing is
enjoying retirement, but they cannot because their husbands have died
of an asbestos-related disease. I am
depressed that no one from the Conservative party could even be
bothered to come here today to give support, or argue against what is
being said
here.
Mr.
Dismore: In fact, the Conservative party was going to
attend in the guise of the hon. Member for Epping Forest
(Mrs. Laing). Unfortunately there was a mix-up on the
appointment to the Committee. The hon. Lady was to be substituted for
the hon. Member for North-West Norfolk (Mr. Bellingham), but
it was not done properly. I have spoken to the hon. Lady and she has
indicated that, in principle, the Conservative party is content for the
Bill to go through. I think that it was a mix-up rather than a
deliberate desire to ignore the Committee.
Mr.
Anderson: I thank my hon. Friend for that intervention. I
am slightly less depressed—I do not know what the alternative to
being even more un-depressed is. I was pleased that my hon. Friend the
Member for Midlothian (Mr. Hamilton) was so interested in
the debate that he came into the room when he was not even serving on
the Committee—that is how supportive he is on the
issue. But
the truth is, I am more depressed than anything else by the fact that
we have to come here today and listen to my hon. Friend the Member for
Hendon, because it should not be him who is coming here to hold the
debate—it should be the Government. Time and again, we have been
told by our Government, by the Prime Minister, by the Secretary of
State and by the Chancellor that, “Yes, the issue will be
resolved.” But it is not resolved, and it still does not look
like it will be resolved.
Linda
Gilroy (Plymouth, Sutton) (Lab/Co-op): Is my hon. Friend
also depressed by the fact that, at the moment, those who discover that
they have pleural plaques, and then go on to discover that they have a
more serious disease, have the additional hurdle of having to prove
that the employer is responsible? That is one of the most worrying
aspects of the whole
issue.
Mr.
Anderson: I thank my hon. Friend for that intervention. Of
course, it is about people who are in a desperate state, having to go
through all the legal and medical hoops to try to get their just
deserts. The real issue, at the bottom of all this, is that none of
this was made by God; it was made by man. People knew what they were
doing; they knew that they were poisoning people at work; and they knew
that they were not looking after people properly. They also know, every
time they go to court and win, that they are escaping their just
deserts. They should be looking after the people who they have poisoned
deliberately and criminally. But it looks again as if they are getting
off the hook today, and that is totally out of order.
The Minister
said that we have lost count of the debates that we have had on the
issue. She is right, but I ask her: have we lost count of the people
who have died as a result of the issue since we started talking about
it in October 2007? Have we lost count of the people who have been
refused compensation? We should not do that. What we should do is stop
looking for the middle way and behaving like the new Labour Government
that have let the people down. We should start acting in the interests
of our class, because this is a class issue—it is the people who
have done the work who, in the main, have suffered as a result of
asbestos. So I say to the Minister today: support us on the Bill and
get on with the real job. If there are flaws in the Bill and if what
the hon. Member for Cambridge said is still an issue—I recognise
and acknowledge the work that he has done on the issue over a long
period—put it right, and put it right
now.
Mr.
Dismore: Working backwards, I agree with what my hon.
Friend the Member for Blaydon has said. The issue has indeed gone on an
awfully long time—three years since the House of Lords
judgment—and it is necessary to have it resolved. I am grateful
to my hon. Friend the Minister for making it clear that the Government
will announce before the summer recess how they intend to proceed. My
Bill may not be perfect. It will come back on Report in October if it
gets through the Committee today, and I am quite happy to work with my
hon. Friend on amendments to the Bill if we can come up with a solution
we can all agree with.
Frankly, I do not think that
there is a great deal of dispute about the medical evidence. Pleural
plaques are asymptomatic. They carry a risk of 5 to 10 per cent. of
developing into one of the more serious asbestos-related conditions,
and they cause considerable anxiety and, often, recognised psychiatric
injury to those who have them. I do not think that there is a great
deal of dispute about that. The question is: what do we do about
it?
I should
mention, as I did in an intervention on my hon. Friend the Member for
Blaydon, that although the Conservative party is not present in the
body of the Committee, they are, in the shape of the hon. Member for
Epping Forest, observing the proceedings closely from the Gallery. I am
sorry that she is not able to participate, because she made a useful
contribution on Second Reading.
I am grateful
for the substantive points made by the hon. Member for Cambridge,
because they are important. In particular, he mentioned the case of
Grieves v. Everard, which I am familiar with. He is right to say
that the law is very bad when it comes to looking at psychiatric
damage. For any physical injury, we apply subjective tests, but for
psychiatric damage, it is an objective test. There is no logical reason
for that—it goes back into the mists of time, when we had the
old nervous shock cases before the second world war. It has been a
long, hard battle to get psychiatric injury established.
I think I am
right in saying that I fought and tried the very first case of
post-traumatic stress disorder, as it became known, in the 1980s. We
had a sympathetic judge who commented in the judgment that psychiatric
injury was significantly under-compensated, and he gave us a pretty
good award within the framework of the compensation rules at the time.
Perhaps next year I can
work with the hon. Gentleman on another private Member’s Bill to
try to put some of these things right, but that is not the substance of
what we are discussing
today. 10
am
The hon.
Gentleman asked about the wording “asbestos-related”.
This is an issue not of causation but of definition. The wording arises
in subsection (3), which mentions “asbestos-related pleural
plaques”, and I suppose that it could say
“asbestos-caused pleural plaques”, but I think that the
point is definitional rather than causative.
The
substantive point that the hon. Gentleman raised was about quantum,
about which he is right. It is still an issue and it should be an issue
for the courts, as it is not right for us to legislate as to what
quantum should be. The hon. Gentleman also made some important points
about anxiety, but that issue has been dealt with in the courts. In the
Rothwell case, the Court of Appeal delivered a unanimous judgment on
what quantum would have been had actionability been established. The
courts often do that, Mr. Bayley; they put your case down
and then tell you what you would have got if you had won. It is
extremely annoying. The worst example of that I have seen was when Lord
Judge, then Mr. Justice Judge, tried the case, kicked us out
and said that if I had won, the client would have got £70,000.
The client was not at all amused; he would rather not have
known.
That
is a habit of the courts, and in the Rothwell case, the Court of Appeal
delivered a judgment of what quantum would have been, based on a review
of the county court and High Court decisions of the previous 20 years.
Also, the House of Lords has held that if the claimant has suffered
more than minimal damage, they are entitled to recover for psychiatric
consequences, including anxiety and psychiatric harm that constitutes a
recognised diagnosable psychiatric condition. I think that is the point
that the hon. Gentleman made. The Bill confirms that pleural
plaques are actionable, so compensation for psychiatric consequences
would follow. In the Rothwell case, provisional damages were assessed
at £6,000 to £7,000.
Full and
final damages take into account contingent financial risks in addition
to the award for anxiety—that was dealt with in a case called
Hindson, which went to appeal and was remitted by the Court of Appeal
to the High Court for determination of damages. In the full and final
settlement, damages were £20,000. Actionability was not in issue
in that case, because it concerned only the principle of assessment of
quantum where the claimant elected for full and final damages rather
than provisional damages. We already have case law that deals with the
problem on a contingent basis should pleural plaques have been
actionable. I hope that that answers the hon. Gentleman’s
points. Question
put and agreed
to. Clause
1 accordingly ordered to stand part of the
Bill.
The
Chairman: Perhaps it would help the Committee if I said
that we have had a fairly broad, Second Reading-style debate on clause
1, and that the subsequent clauses are pretty narrow, so I shall be a
strict Chairman. That is not because of any wish not to debate the
issue—my constituency is a railway constituency with a very high
incidence of asbestos-related diseases that
obviously came from a former carriage works—but because there is
a severe shortage of Committee time for private Member’s Bills.
As the Chair, I think it my duty to help Members to make progress with
their private Member’s Bills in the limited Committee time
available. Without wishing to prevent any Member from speaking about
the matters in the subsequent clauses, I hope that we will
make some good
progress.
Clause
2Pleural
thickening and
asbestosis Question
proposed, That the clause stand part of the
Bill.
Mr.
Dismore: Thank you, Mr. Bayley. I do not think
that the remainder of the clauses will take up a great deal of time as
they are pretty technical. Clause 2 gives effect to the general
principles in clause 1, which I have discussed, about the asymptomatic
nature of pleural plaques. It restates that the burden of proof remains
with the claimant, which is an old principle of personal injury
law.
David
Howarth: My only point on the clause has already been
referred to by the Minister in what she said on clause 1. Arguably,
anyone who has been exposed to asbestos is in a similar position to
someone with pleural plaques, asymptomatic pleural thickening or
asymptomatic asbestosis, in that they are at risk of developing the
serious diseases in the future. The clause does not deal with such
people and I hope that the Government will bear that in mind when they
come forward with their proposals. We are dealing with a much broader
class of people who are in a similar
situation.
Bridget
Prentice: I take exactly what hon. Gentleman says. The
clause extends the provisions in a way that was not included in our
consultation exercise, so we would have to consider carefully, in light
of our conclusions, whether that should be included in any legislation.
I leave it at that, with the same caveat as I left at the end of clause
1, that we shall reflect further on whether we need to amend the clause
at a later
stage.
Mr.
Dismore: I do not think that the hon. Member for Cambridge
is right about that point. It is not just exposure to the hazard that
counts; there is physiological change, albeit asymptomatic, which is
revealed in an X-ray or CT scan, so there is an additional element
beyond mere exposure. Although any change may be asymptomatic, the
claimant will know that they have something inside their body
detectable in that way, even if it is not causing them any problems. It
goes slightly beyond mere
exposure.
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