The decision by the Lord Chancellor and Secretary of State for Justice (Jack Straw) to uphold the Law Lords' decision, (17 October 2007) that the existence of pleural plaques does not constitute actionable or compensatable damage is a disappointment.
In particular since prior establishment of liability of negligent exposure to asbestos often expedited compensation claims for individuals later diagnosed with mesothelioma, the twelfth most common cancer killer in men and the cancer of most rapidly increasing incidence in women.
The only recourse left for pleural plaques sufferers is very limited. Payments of £5,000 will be made to those who had begun, but not resolved, a legal claim prior to the 2007 ruling, which will benefit anyone left in limbo by the decision. Further details are awaited regarding the extra-statutory payments, but it is expected that anyone diagnosed with pleural plaques following the ruling will have no recourse for compensation.
However, the government's publication of a consultation paper on the issue does offer some hope to mesothelioma sufferers. Since the problem for many sufferers of serious asbestos-related diseases is their inability to obtain full compensation because they cannot trace the employer's insurer of more consequence to many will be the creation of a UK-wide Employers' Liability Tracing Office (ELTO) to manage an electronic database of EL policies and operate an existing tracing service which the Association of British Insurers and the Lloyds Market Association have worked to as a voluntary Code of Practice since 1999. This improvement will be of particular importance where conditions like mesothelioma are concerned, as patients frequently die very soon after diagnosis, leaving little time to trace records and obtain compensation.
However Government plans go further, even with an ELTO there will be some who are unable to trace their insurance records and thus are denied full compensation, so an Employers' Liability Insurance Bureau (ELIB) is proposed, to provide a compensation fund of last resort for those still unable to trace EL.
Aware of the need for immediate action the Government is also to take steps to increase upfront statutory payments currently made to mesothelioma sufferers and their dependants. These will be increased by 1.5%. The Secretary of State for Work and Pensions is also seeking to increase payments to all dependants by up to £5,000, so that awards are closer to those paid to sufferers. Increases which will come into effect on 1 April 2010.
Looking ahead, with a view to reducing the time it takes to conclude future cases, it is proposed that a working group made up of claimant solicitors, trade unions, insurers, the judiciary, and civil servants be brought together to examine litigation practices and procedures for compensation claims relating to mesothelioma, and to seek possible solutions to the difficulties that arise from delays in obtaining medical reports, particularly due to the shortage of medical experts in this area.
Clarification of the limitation period for bringing a claim will seek to resolve difficulties experienced by mesothelioma sufferers as a result of differences in the value of claims settled before or after the death of the person concerned. Such clarification will see the limitation period for bringing a claim run from the date a claimant becomes aware of suffering from mesothelioma.
Further changes to the law will be seen in the Third Parties (Rights against Insurers) Bill, which will enable claims against insolvent employers to be brought direct against the employer's insurer. However the most welcome news of all is the Secretary of State for Health's request that Department of Health officials consider and advise on how best to create a world-leading network of medical research practitioners for asbestos-related disease, and an announcement that the insurance industry will contribute £3 million towards research into asbestos-related disease.
Other asbestos related diseases such as Pleural thickening/Fibrosis, Asbestosis, asbestos related lung cancer and Mesothelioma are unaffected by the decision, and claims against employers in these cases are still actionable.
For more details contact James Walsh, Head of our Industrial Disease Department or telephone James on 01752 292260