Law lords' asbestos ruling 'a disgrace'

News | HSW
27.11.2007

A house of Lords ruling that workers with the asbestos-related condition pleural plaques should not be able to claim compensation on grounds of negligence has been condemned by unions and campaigners.

On 17 October, law lords ruled that pleural plaques - scarring of the lungs from exposure to asbestos that can be forerunner of asbestosis and mesothelioma - is not a disease itself, ending a right to claim compensation established 20 years ago. Thousands of workers with the condition will now be unable to seek damages.

The legal argument began in November 2004 when 10 claimants fought a move by insurance companies to stop paying out to people with pleural plaques. The insurers - including Norwich Union, Zurich and British Shipbuilders - argued the condition was not a disease as it caused no symptoms. Their lawyers described the claims as "claims by the worried well" and said the insurance bill could top £1 billion.

In February 2005 the High Court ruled in the claimants' favour, but the Court of Appeal overturned that judgment in January 2006. Last month the law lords unanimously upheld the appeal court's decision.

Tony Whitston, chair of the Asbestos Victims Support Groups Forum, described the ruling as "a disgrace". Mike Clancy, assistant general secretary of the union Prospect, said the decision "totally ignores the suffering endured by these victims and their families who, following the diagnosis of pleural plaques, live with the continual fear of developing a life-threatening respiratory disease."

David Cass, a solicitor at law firm Irwin Mitchell, told HSW that government intervention was a possibility. "It's certainly being investigated," he said. "Whether or not the politicians will agree that this is a situation in which they should intervene - as they did with the mesothelioma decision in the case of Barker - remains to be seen."

But the judgment does leave the door open for a challenge on the grounds of breach of contract rather than negligence. "Three law lords suggested there might be an opportunity to sue former employers on the basis that they breached their contracts in not exercising their duty of care," explained Cass. "So there is a chink of light."

The ruling is not binding in Scotland at present, because it has a separate legal system. A  strong lobby north of the border for a change in law to ensure compensation for pleural plaques sufferers raises the possibility of a two-tier system emerging.