The Government estimates the move could cost between
£3.7 billion and £28.6 billion – the very wide range
indicating high levels of uncertainty about how many claims could
actually be brought.
Pleural plaques are small, localised areas of
pleural thickening on the membrane covering the lungs, caused by
the inhalation of asbestos fibres. They are harmless and, in almost
all cases, show no symptoms.
But because they indicate some exposure to
asbestos, they also indicate that there is a risk the individual
might develop an asbestos-related condition in the future. Many of
those diagnosed with pleural plaques become severely anxious that
they will do so.
Until recently, such individuals were able to
claim damages from negligent employers. Last October, though, the
House of Lords found there was no legal basis for such claims.
The Law Lords ruled that it is a fundamental
requirement of a negligence action that the negligence causes
injury and the claimant suffers damage as a result. According
to current medical knowledge, plaques are harmless, therefore there
is no injury. Without physical injury, the risk of contracting a
future disease and the claimant's anxiety are also not actionable
claims.
Launching the MoJ's consultation on ways to
alleviate this decision last week, Justice Minister Bridget
Prentice MP said: "We understand the concern and anxiety
experienced by people who have been exposed to dangerous substances
like asbestos, and who have been told they have pleural plaques.
The Law Lords have made their decision on legal grounds but those
with pleural plaques may still need support. We need to find the
best way forward to provide that support".
One option would be to overturn the decision
by legislation. That route was taken by the Scottish Executive,
which introduced the Damages (Asbestos‑Related Conditions)
(Scotland) Bill in June.
But the Government expressed misgivings about
interfering with the Law Lords' decision. "While we invite
views on overturning the judgment," the paper states, "we are not
currently minded to favour this approach, not least because of the
implications for the fundamental integrity of the law of
negligence".
Other possibilities include improving
understanding of the condition, in particular providing support and
reassurance to those diagnosed, and setting up a "no fault" scheme
to provide financial support. The parameters of such a scheme – and
whether the cost would fall on insurers or taxpayers – have been
left open for discussion.
"The Government is committed to consulting on
a way forward and welcomes views on how people who have been
exposed to asbestos, and developed pleural plaques, might be
helped," said Prentice. "Providing reassurance to people and
offering financial support are among the suggestions we are asking
for views on".
The Government has also commissioned
independent reviews of medical evidence from the Industrial
Injuries Advisory Council and the Chief Medical Officer to consider
the extent to which people with pleural plaques go on to develop
serious asbestos‑related conditions.
Nick Starling, Director of General
Insurance and Health at the Association of British Insurers said:
"The way forward must be through education to reassure and allay
the concerns of people with pleural plaques. The insurance industry
wants to work with the Government to achieve this.
Legislation is not the answer. Pleural plaques are symptomless, do
not impact on a person's health, and do not develop into
asbestos‑related diseases".
Responses to the consultation are required by
1st October 2008.
Want more content like this? This story was written by the insurance and reinsurance legal experts at Pinsent Masons, the law firm behind OUT-LAW.COM. See our legal info for Insurance and Reinsurance.
