English Scottish divide widens over pleural plaques compensation

The decision leaves pleural plaques sufferers in England and Wales in a very different position to those in Scotland, where a new Act in force since June 2009 restored claimants' ability to claim damages for the condition.

But in a statement released today, Justice Secretary Jack Straw announced a payout of £5000 for a limited number of pleural plaques claimants in England and Wales whose legal actions were left unresolved in October 2007, when the House of Lords concluded that there was no basis for such claims.

Pleural plaques are small areas of pleural thickening on the lungs caused by the inhalation of asbestos fibres. They are harmless and, in almost all cases, symptomless. But because they indicate some exposure to asbestos, they also indicate an increased risk that the person may go on to develop an asbestos-related disease, such as mesothelioma.

From the 1980s onwards, individuals diagnosed with pleural plaques were able to claim damages from negligent employers and their insurers. But in October 2007, the House of Lords ruled that the presence of pleural plaques does not constitute actionable or compensatable damage.

The Law Lords held that it is a fundamental requirement of a negligence action that the negligence causes injury and the claimant suffers damage as a result. Since, according to current medical knowledge, plaques are harmless, there is no injury to compensate.

In 2008, the Government sought views on whether to change English law to overturn this judgment or whether a no-fault scheme should be established to provide financial support. It has since been reviewing reports on the medical evidence from the Chief Medical Officer (CMO) for England and Wales and the Industrial Injuries Advisory Council (IIAC).

In April 2009, the Scottish Parliament passed The Damages (Asbestos-Related Conditions) (Scotland) Act, which states that any rule of law that says asbestos-related pleural plaques do not constitute actionable harm "ceases to apply to the extent it has that effect".

Announcing the Government's decision not to change English law, Jack Straw said there was still no evidence to show that pleural plaques would necessarily lead to mesothelioma or other asbestos-related diseases.

"On the basis of medical evidence received during the course of this review, including authoritative reports from the CMO and the IIAC, we are unable to conclude that the Law Lords’ decision should be overturned at this time or that an open-ended no-fault compensation scheme should be set up.

"While we cannot, for the reasons outlined above, restore the previous position, we do acknowledge the unique position of those individuals who had already begun, but not resolved, a legal claim for compensation for pleural plaques at the time of the Law Lords’ ruling in October 2007.

"Such people would have had an understandable expectation that their claim would result in compensation and many had made plans accordingly."

Claimants in this limited category will each receive a payment of £5000 under an ex-statutory scheme. The amount is intended to reflect what they could have expected to receive had their claims remained actionable.

"The Government regards this as a unique situation and as not setting any precedent for any other circumstances where litigants may be disappointed," Jack Straw said.

The Justice Minister also outlined a package of other measures intended to increase understanding of pleural plaques and improve the claims process for mesothelioma victims generally. Statutory payments currently made to mesothelioma victims and their dependants will also be increased with effect from 1st April 2010.