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5 Feb 2010 : Column 574

A mendment 1 agreed to.

A mendments made: 2, in Clause 1, page 1, line 7, leave out "modern day".

Amendment 3, page 1, line 10, leave out "modern day".

Amendment 4, page 1, line 14, leave out "modern day".

Amendment 5, page 1, line 17, leave out "modern day". -( Mr. Dismore. )

Clause 1, as amended, ordered to stand part of the Bill.

Clause 2

Short title and extent

Question proposed, That the clause stand part of the Bill.

The Minister for Borders and Immigration (Mr. Phil Woolas): I shall try to be helpful-very briefly. At the beginning of my remarks today, I said that there was an offer of parliamentary counsel help on some of the wording in this clause, so I shall not object to it at this stage, but I give notice, out of fairness, that we may wish to introduce amendments in the other place-should the Bill proceed.

Question put and agreed to.

Clause 2 accordingly ordered to stand part of the Bill.

The Deputy Speaker resumed the Chair.

Bill, as amended, reported.

Third Reading

1.17 pm

Mr. Steen: I beg to move, That the Bill be now read the Third time.

I spoke for just 50 minutes on Second Reading, but I was trumped by the Minister, who spoke for just on an hour.

Mr. John Randall (Uxbridge) (Con): It was very good, though.

Mr. Steen: It was very good. However, I do not think that a Third Reading speech would endear me to the House, so that will be the end of my Third Reading speech.

Question put and agreed to.

Bill accordingly read the Third time and passed.

5 Feb 2010 : Column 575

Damages (Asbestos-Related Conditions) (No.2) Bill

Second Reading

1.17 pm

Mr. Andrew Dismore (Hendon) (Lab): I beg to move, That the Bill be now read a Second time.

Today is Groundhog day for this Bill, because its terms are exactly the same as those of a Bill that passed through the House last year. Unfortunately, there was insufficient time for that Bill to go through the other place before Prorogation last November. It received full Committee and Report stages, however, with amendments moved, discussed and, ultimately, withdrawn, so later today I hope to be able to put the Bill before us through all its stages, not out of disrespect to the House, but to point out the fact that this legislation has already been meaningfully debated.

Most Members know that for 20 years before I entered Parliament I was a personal injury lawyer, and I suppose that I still am: once a lawyer, always a lawyer. As the Minister for Borders and Immigration, said earlier, "Once a Whip, always a Whip." I have never been a Whip, but I have certainly been a lawyer, and I still have my practising certificate, although I do not currently practice.

This Bill is about pleural plaques, a thickening of the lining of the lung. They are usually visible on an X-ray or a CT scan, and they are caused by exposure to asbestos. It is hard to imagine someone's fear if they are at risk of developing an evil, disabling illness such as mesothelioma, and there is a statistical connection between the two, although a medical causal connection is debatable. The fact remains, however, that the statistical connection indicates to people that they are at a much higher risk than the population at large of developing mesothelioma. It is a painful and always fatal illness, and during the course of my practice and, indeed, my time in the House, I have met many pleural plaques sufferers who have expressed their strong feelings about the issue and the problems that have recently arisen because of court decisions.

Until recently, pleural plaques were compensated under common law. Since 1984, there have been three cases against the Ministry of Defence, the leading one being Church v. MOD, involving a diagnosis of asbestos-related pleural plaques-or asymptomatic fibrosis on the pleural lining of the lungs, as it is described in the cases. In the Church case, it was decided that the condition constituted an injury, enabling damages to be claimed. The amount of compensation varied, but before the cases that stopped the claims being brought, it was in the region of £7,000 on a provisional damages basis.

In the 2006 case of Rothwell, the Court of Appeal found that pleural plaques were 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 was not compensatable and that the courts could not look at the aggregate of both pleural plaques and the psychological conditions that they cause because the two were separate.

If the psychological condition involved was a recognised psychiatric illness, that would be different. However, the
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psychological conditions of pleural plaques sufferers do not get so severe as to be considered diagnosable psychiatric illnesses. In this day and age, unfortunately, the legal system still treats injuries to the mind rather more severely than injuries to the body. Compensation is not awarded on a fair basis, comparing one with the other.

I return to the relevant cases. In autumn 2007, the Rothwell case was upheld by the House of Lords in the case of Johnston. In fact, it was the same case; several cases were heard together. The House of Lords upheld the Court of Appeal decision that pleural plaques were not compensatable, and that has been a cause of concern in the wider community and the House ever since. That concern has been the subject of numerous parliamentary questions, early-day motions, amendments to Government Bills and attempts at private Members' legislation, including my own Bill last year. It has also been raised in I do not know how many Adjournment debates. There is no perfect option for dealing with the issue; various proposals have been debated and suggested but unfortunately the Government have not announced a formal position. That is why this Bill is a good way forward.

Pleural plaques represent a serious condition that affects many people, and doing nothing is simply not an option. My Bill tries to build on what has happened in Scotland, which is ahead of the game. The Scottish Parliament passed its own legislation to restore the position in law to where it was before the cases in the Court of Appeal and House of Lords. That Bill has now achieved Royal Assent in Scotland. There were attempts to challenge its legality through judicial review, but they failed in the Scottish courts; the outer house made a strong judgment that made it clear that certain points, particularly those arising from aspects of the European convention on human rights, were not sustainable.

My Bill is modest; all it seeks to do is turn back the law to where we all thought it was prior to the decisions of the courts. Doing that, however, would mean that the insurers, who were on risk at the time, would meet the liability rather than getting the windfall of having collected the premiums without having to pay out on the risk. The Bill is tightly drawn; it is not the thin end of the wedge and it will not open the floodgates to any form of parallel litigation for other illnesses or injuries. It relates purely and simply to pleural plaques.

The Bill maintains the basic principles of negligence or breach of statutory duty as the test for liability. The burden of proof that the claim exists and should be upheld is still on the claimant. The Bill provides for a suspension of the limitation period from the date of the House of Lords decision until the coming into force of the Bill. That is only fair, but it would not affect any cases that were already settled or decided in the courts. There would be no question of trying to reopen cases that were finished. The Bill also leaves out Scotland, which, as I have said, has made its own arrangements already.

The Bill is an important measure. If pleural plaques were outside the body, there would be no argument about their being compensatable, yet because we cannot see them they do not count, according to the House of Lords. The psychological injury in such circumstances can be looked at by the courts only if there is a physical injury that they consider compensatable. The House of Lords has ruled that the internal scarring of pleural
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plaques is not compensatable as it would be if it were on the outside, so the psychological consequences cannot be compensated.

Matthew Taylor (Truro and St. Austell) (LD): I commend the hon. Gentleman for his pursuit of this issue. There is a particularly extraordinary position in relation to psychological damage and it appears to contradict established practice in other areas. I hope that, at the very least, his return to the scene will address that issue.

Mr. Dismore: I am grateful to the hon. Gentleman. Basically, the problem is that the test for a physical injury is subjective. It is sometimes referred to as the "thin skull test"-the victim is taken as found, and if they have a thin skull and have had a brick dropped on their head, that is hard luck for the tortfeasor and the victim is compensated according to the injuries sustained. When there is psychiatric injury, that is not the case; it is assessed on an objective basis, with the victim assessed not as found but according to a "reasonable man" test, as it were. That is unfair. Our legal system discriminates against psychiatric injury compared with physical injury.

My concern is that if my Bill does not go through, the campaign for reform of the rules on psychiatric injury in general will gather strength. The system is ripe for reform anyway, but the failure to compensate for pleural plaques, and for associated psychological injury that is less than a diagnosed psychiatric injury, needs to be dealt with now. If it is not, the momentum behind the campaign for widespread reform of psychiatric and psychological injury law will gather much greater momentum and ultimately become irresistible. The Bill is a good halfway house that will alleviate some of the pressure, so that we do not end up in that position.

Mrs. Eleanor Laing (Epping Forest) (Con): The hon. Gentleman mentioned the legislation in the Scottish Parliament. I recall that when we last debated the issue last April, we noted that the Scottish Parliament had asked for the costs of the implementation of its legislation to be monitored. Does he have any information about the monitoring of costs in Scotland?

Mr. Dismore: I think that legislation has only just come into force, so it would be difficult to monitor the costs so far, but they arise in two situations. One is when the Government are the de facto defendant, often standing in the shoes of a former nationalised industry, and the other is when the defendant is a private company. As I understand it, the Scottish Bill has either only just come into force or is about to, consequent upon the judicial review challenge having failed, so it is too early to discuss whether there are any costs, and if so, what they amount to. I understand the UK Government's position to be that any costs should fall on the Scottish Government, as I think they now call themselves, rather than on the UK taxpayer. That remains to be seen, and it is a matter for them to negotiate between themselves.

The hon. Member for Truro and St. Austell (Matthew Taylor) made the point about the different treatment of psychiatric injury. I believe that the Bill will resolve that issue, because it provides for the illness and injury of pleural plaques to be designated actionable damage, which is the key to unlock compensation for psychological consequences that may be less than a diagnosable psychiatric
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illness. There could then be compensation both for the pleural plaques themselves and for the lesser psychological consequences, which was what everybody thought the law was before the House of Lords intervened.

I hope that my Bill will find favour with the House, as it did last time. It was extensively debated in the previous Session, so I hope that the House will not only give the Bill a Second Reading today but put it through all its stages, bearing in mind that it has passed them before.

1.28 pm

Mr. John Randall (Uxbridge) (Con): I congratulate the hon. Member for Hendon (Mr. Dismore) on bringing the Bill back to the House and on his tenacity on this important subject. I mean this with no disrespect to him, but it is very much a lawyer's Bill. As a layman, I listened to his explanation hoping to find out exactly how the Bill would work. I think I got the general drift, but some of the more intricate parts of it eluded me.

I have a constituency interest, because for many years we had an asbestos factory in the area in which I have always lived. It seems that many people in my constituency suffer from various asbestos-related problems, including mesothelioma. I know the problems that that causes them, both physically and mentally, so anything that we can do to try to alleviate them-not only through compensation, but by recognising that we now understand what can happen-is to be welcomed.

I have listened to the various arguments and looked into terms of the hon. Gentleman's Bill, and there are some concerns. However, as he said, it has been scrutinised in this House already, so, if possible, we should allow it to go down to the other place. If the Lords have any further worries or questions, it is appropriate that they should raise them there. Saying that, I wish the hon. Gentleman good luck with his Bill.

1.30 pm

Mrs. Eleanor Laing (Epping Forest) (Con): I apologise to you and to the House, Mr. Deputy Speaker, for not being as audible as I usually am. I shall therefore be brief, in order to spare the House the horror of listening to my strained voice.

I congratulate the hon. Member for Hendon (Mr. Dismore) on his persistence in bringing forward this important Bill again. We had a long debate on the matter on 24 April last year. I understand that the Bill has been in Committee since then, and he is right to bring it back here. When we discussed the Bill last year, everyone who spoke, from all parts of the House, expressed their compassion-I certainly did-for those who have worked, sometimes for a lifetime, in conditions that they did not know, and which their then employers were not aware, were dangerous because of the presence of asbestos.

There are now generations of people suffering from asbestos-related illnesses-people who gave a lifetime's service, not only in private companies, but in the service of our country, doing important jobs in the armed forces and nationalised industries. They are suffering now, but there are generations to come who do not yet know the extent to which they will suffer. I appreciate that that is the point of the hon. Gentleman's Bill.

My hon. Friend the Member for Uxbridge (Mr. Randall) said that this was a lawyer's Bill. I am with the hon.
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Member for Hendon on that: perhaps it is a lawyer's Bill, but I confess to also having been a lawyer once. As I think I mentioned last year, when I was a young articled clerk, a long time ago, I dealt with difficult asbestosis cases.

Mr. Dismore: I did not take the suggestion that the hon. Member for Uxbridge (Mr. Randall) made in a pejorative way. My Bill is a lawyer's Bill in the sense that lawyers can understand it, because it deals with our concepts, but it is also a Bill meant for ordinary, common, working people and their families who have suffered from a debilitating problem.

Mrs. Laing: Of course it is, and in no way was I being pejorative about lawyers. Indeed, I was about to say to the hon. Gentleman that because I have dealt with the matter in a previous professional life-not quite to the same extent as him, but to some extent-I understand only too well why he has brought his Bill forward. It would allow a causal link to be established between certain actions by employers and future illnesses that might arise. I also appreciate that that is where the difficulty lies. As he said, if pleural plaques were on the outside of the body, they would be a recognisable disease and the difficulty would not arise. I fully understand the difficulty of recognising pleural plaques for the unusual condition that it is, and I give him credit for bringing that difficulty before the House for consideration. Pleural plaques do not cause illness or pain-although some argue that they do-but the psychological effects of having them diagnosed affect people and their families, as he has previously explained. The last time we debated this, the hon. Member for Hendon said:

I appreciate the hon. Gentleman's point; I recall him giving that clarification of the causal link theory for the benefit of those normal people who are not steeped in personal injury law.

I also appreciate, however, that there are various views in the medical profession on the way in which pleural plaques can be interpreted as affecting a person's health. I will reiterate the evidence of Dr. Robin Rudd, a recognised expert on this matter. He has said:

Dr. John Moore-Gillon of the British Lung Foundation has also said:

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