English Scottish divide widens over pleural plaques compensation

The Government has ruled out changing English law to allowpeople who have developed pleural plaques as a result of exposureto asbestos to claim compensation from negligent employers andtheir insurers.

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

But in a statement released today, Justice Secretary Jack Strawannounced a payout of £5000 for a limited number of pleural plaquesclaimants in England and Wales whose legal actions were leftunresolved in October 2007, when the House of Lords concluded thatthere was no basis for such claims.

Pleural plaques are small areas of pleural thickening on thelungs caused by the inhalation of asbestos fibres. They areharmless and, in almost all cases, symptomless. But because theyindicate some exposure to asbestos, they also indicate an increasedrisk that the person may go on to develop an asbestos-relateddisease, such as mesothelioma.

From the 1980s onwards, individuals diagnosed with pleuralplaques were able to claim damages from negligent employers andtheir insurers. But in October 2007, the House of Lords ruled thatthe presence of pleural plaques does not constitute actionable orcompensatable damage.

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

In 2008, the Government sought views on whether to changeEnglish law to overturn this judgment or whether a no-fault schemeshould be established to provide financial support. It has sincebeen reviewing reports on the medical evidence from the ChiefMedical Officer (CMO) for England and Wales and the IndustrialInjuries Advisory Council (IIAC).

In April 2009, the Scottish Parliament passed The Damages(Asbestos-Related Conditions) (Scotland) Act, which states that anyrule of law that says asbestos-related pleural plaques do notconstitute actionable harm "ceases to apply to the extent it hasthat effect".

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

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

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

"Such people would have had an understandable expectation thattheir claim would result in compensation and many had made plansaccordingly."

Claimants in this limited category will each receive a paymentof £5000 under an ex-statutory scheme. The amount is intended toreflect what they could have expected to receive had their claimsremained actionable.

"The Government regards this as a unique situation and as notsetting any precedent for any other circumstances where litigantsmay be disappointed," Jack Straw said.

The Justice Minister also outlined a package of other measuresintended to increase understanding of pleural plaques and improvethe claims process for mesothelioma victims generally. Statutorypayments currently made to mesothelioma victims and theirdependants will also be increased with effect from 1st April2010.  

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 .

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