Pleural plaques are caused by inhaling asbestos fibres but, unlike more malign conditions caused by exposure to the deadly substance, they are symptomless and do not cause disability. Nevertheless, there is a great deal of legal debate and development in the area of compensation for sufferers, so Mike Boyle reviews the legal reasoning that has led to the current position and argues that any reversal would be counter-productive.
In January 2006, the Court of Appeal handed down a ruling that was widely heralded as a reversal of 20 years of ‘precedence’.1 The Court held by a 2:1 majority that those with asymptomatic pleural plaques resulting from wrongful exposure to asbestos fibres in the workplace were not entitled to compensation. This decision was upheld by the House of Lords in 2007, albeit for differing reasons.
Unsurprisingly, this outcome has been welcomed by employers and their insurers, and condemned by claimant lawyers, who are actively lobbying Parliament to overturn the Lords ruling. Indeed, the Scottish Parliament is well on its way to reversing this decision through the Damages (Asbestos-Related Conditions) (Scotland) Bill, currently advancing through the legislative process.
Limiting disease claims
The starting point for any discussion relating to asbestos litigation should be the recognition that, until comparatively recently, those suffering from an occupational disease were at a significant disadvantage compared with those who had suffered a traumatic injury. Indeed, until 1963, many claims for latent diseases were effectively barred, as legal action had to start within three years of exposure (this had been six years until the mid-1950s), thereby placing the claimant at a serious disadvantage, given the sometimes decades-long interval between exposure and the onset of a disease.
Thus, in the pneumoconiosis case Cartledge v E Jopling and Sons Ltd [1963], the House of Lords held that the claim was statute-barred because of the lapse of time between the employer’s negligence and the bringing of the case. Their Lordships recognised that this was an unreasonable and unjust position but were unable to address this through common law because of the Limitation Act 1939.
This unfair situation was eventually overturned, and modern provisions are contained within the Limitation Act 1980. This allows a three-year period for personal injury claims to be brought,2 commencing either when the cause of action accrued, or on the date of knowledge of the injury – whichever is later.
Similarly, a number of other disadvantages suffered by disease claimants has been addressed through judicial creativity and parliamentary intervention. The classic approach to causation, for example, has been extended in a series of landmark cases. In cases where employees were exposed to asbestos in multiple workplaces, the Court of Appeal had maintained a traditional approach to causation, concluding that mesothelioma was an indivisible disease, triggered on a single, unidentifiable occasion by one or more fibres. As it could not be established which period of employment had caused the disease, to allow compensation would therefore be an injustice to the defendants.
Nevertheless, in Fairchild v Glenhaven Funeral Services Ltd [2002] the House of Lords held that the demands of justice and fairness would be best served by allowing such claimants to succeed.
So, much has been done to level the legal playing field for claimants with other types of asbestos-related disease, such as mesothelioma and pneumoconiosis, so why aren’t those with pleural plaques currently treated in the same way?
What is a significant injury?
It is trite law that in order to succeed in an action for personal injury, damage or loss must occur for which compensation is sought. Indeed, one of the triggers to starting the limitation period is the knowledge that the injury is ‘significant’.3 In Cartledge, Lord Pearce held that: “It is a question of fact in each case whether a man has suffered material damage by any physical changes in his body. Evidence that those changes are not felt by him, and may never be felt, tells in favour of the damage coming within the principle of de minimis non curat lex.4 On the other hand, evidence that in unusual exertion, or at the onslaught of disease, he may suffer from his hidden impairment tells in favour of the damage being substantial.”
Thus, the distinction between damage that is material and that which is so slight as to be insignificant is important as a trigger for compensation and the start of the limitation period. This was a key factor in a series of pleural-plaques decisions, beginning with Church v Ministry of Defence (1984).
Here, a claimant diagnosed with symptomless pleural plaques caused by negligent exposure suffered anxiety at finding out he had contracted asbestosis. The judge (Pain, J) held that it would be wrong to consider the plaques as insignificant, and thus that the consequent anxiety is an actionable injury.
This line of reasoning was followed in Sykes v Ministry of Defence (1984) but rejected by Rose J in Morrison v Central Electricity Generating Board (1985), who found no cause of action in a claimant who suffered only from symptom-free pleural plaques and a small degree of anxiety. This supported the MOD’s contention in both Church and Sykes that symptomless physiological changes, which did not affect the claimant’s quality of life, could not be actionable.
Subsequently, in Patterson v Ministry of Defence (1986), the defendant’s argument that Morrison had been correctly decided was rejected by Simon-Brown J, who considered that the risk of future symptoms developing could not be ignored.
The appeal deal
Given the conflicting decisions at first instance it was, perhaps, inevitable that the issues would go to appeal, in the form of the pleural-plaques test litigation.5 In essence, this case was based on combining three heads of claim that, individually, could not constitute a cause of action:
first, that irreversible damage in the form of pleural plaques had occurred after wrongful exposure to asbestos;
second, that this resulted in an increased risk of developing an asbestos-related disease; and
third, the anxiety at the prospect of this.
In Grieves v FT Everard & Sons Ltd [2006] a majority in the Court of Appeal held that there was no legal or logical basis for aggregating three non-actionable heads of claim in this way. Public-policy issues loomed large in the Court’s deliberations, including a distinct unease at the prospect of claims managers encouraging asbestos-exposed workers to undergo medical screening for the sole purpose of bringing claims for compensation. This would likely create stress and anxiety where none had existed, and would involve needless x-ray exposure with the associated risks involved.6
Arguably, of most concern was the disproportionate cost of litigation compared with any likely damages awarded, and Lord Phillips CJ’s fear that claimants may “be tempted to claim a final award, thereby… gambling, to the possible prejudice of themselves and their families, that they will not contract an asbestos-related disease”.
From a limitation perspective, it is arguable that once a potential claimant is diagnosed with symptomless pleural plaques, he or she might effectively be time-barred from claims after three years if a more serious condition develops – although, as outlined above, the court has discretion in this area.
In the subsequent appeal in Johnston v NEI International Combustion Ltd [2007] (sometimes known as Rothwell v Chemical and Insulating Company Ltd), their Lordships were less convinced by public-policy arguments but unanimously rejected the proposition that the three non-actionable heads of claim could be aggregated in this way.7
Lord Hope observed that it would be easy to dismiss the claim “by applying the simplest of mathematical formulae: two or even three zeros, when added together, equal no more than zero”, but considered that this would not do justice to a genuine legal analysis problem.
Nevertheless, their Lordships held that having symptomless pleural plaques does not amount to an actionable injury, and that an increase in the risk of contracting a disease does not, by itself, result in a cause of action. It was also held that any anxiety suffered after diagnosis was not actionable, as it was not a recognised psychiatric illness. Even where psychiatric injury did occur,8 this was exceptional, and it was unreasonable to expect an employer to foresee that an employee might be vulnerable 30 years after wrongful exposure.
Conclusion
Of the seven judges that heard this litigation, only Smith LJ found that pleural plaques were not de minimis, on the basis that they were lesions comparable with a disfiguring scar caused by a cut or burn. She felt that disfigurement caused by cut or burn injuries should be addressed by the sum of damages awarded.
However, her peers rejected this proposition on the basis that, unlike cuts and burns, the formation of plaques was not painful and did not harm the quality of life.
While claimants and their solicitors obviously support Smith LJ’s dissenting view, the Court’s decision is generally held to be fair. Compensating for a ‘harm’ that involves no pain, suffering, or detectable effect on the quality of life would erode the restitutionary principle. This is a fundamental tenet of the tort system, which aims to put the claimant in the same position as before an injury caused by the defendant’s breach of duty.9
Given the nature of the human condition, it is further argued that classing anxiety as a compensatable harm would open the floodgates to numerous claims.
This might persuade those diagnosed to pursue a claim even when they did not wish to do so, lest the clock start running, thereby potentially barring future claims in the event of symptomatic disease developing.
Following the decision by the House of Lords, the Ministry of Justice issued a consultation paper seeking views on whether or not pleural plaques should be compensatable.10 Then there is the Scottish Bill, which is now progressing through Holyrood.11 Unsurprisingly, insurer and claimant lawyer organisations are at polar opposites in this debate.
The last word should therefore go to someone who does not have a financial interest in the outcome. Speaking in advance of the Scottish Parliament Justice Committee’s evidence hearing on the Damages Bill in September 2008, Prof Neil Douglas, president of the Royal College of Physicians of Edinburgh, and a consultant in respiratory medicine, said: “The Scottish Government’s intention to help people with asbestos-related illness is laudable. However, we believe that the proposed Bill, as it stands, is flawed in that the development of pleural plaques (scarring to the lining of the lungs) is not an indicator that an individual who has been exposed to asbestos will go on to develop mesothelioma. Pleural plaques, on their own, are harmless, benign, and cause no medical impairment. Instead, it is the intensity of an individual’s exposure to asbestos that causes mesothelioma. [I]t would be fundamentally wrong to use the existence of pleural plaques as a basis for compensation claims within this Bill.”
Clearly, those suffering from pleural plaques that do cause pain and suffering are entitled to compensation under the current system. Given the amount of analysis the appellant courts have put into this decision it is respectfully suggested that politicians should avoid gesture politics of this kind.
Ultimately, it is difficult to see how such a reversal would be of benefit. At best, it would merely contribute to the ‘claims culture’ that is perceived to exist within this country, and, at worst, it would needlessly increase the anxiety of those with this condition.
References
References
1 The pleural plaques cases prior to the Court of Appeal ruling were heard in courts of first instance and cannot be considered to set precedence. To see SHP’s original news story on the decision, go to www.shponline.co.uk/article.asp?pagename=archive&article_id=2912
2 The exception is for personal injuries based on trespass to the person, when the six-year period applies
3 Limitation Act 1980 – section 14
4 Latin: the law does not concern itself with the smallest things or trifles. Some matters are of such minimal significance that the law will not involve itself with them
5 Test cases are used to establish the legal parameters that can be used to settle large numbers of potential claims that would otherwise overwhelm the legal system
6 Screening for pleural plaques usually involves a chest x-ray or CT (computerised tomography), scan involving several x-ray beams sent simultaneously from different angles
7 To see SHP’s original news story on this decision, go to www.shponline.co.uk/ article.
asp?pagename=archive&article_id=6900
8 As was the case with one of the applicants, Mr Grieves, who suffered clinical depression caused by worry about the increased risk of an asbestos-related disease
9 As stated by Lord Blackburn in 1880: “Where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation or reparation” – Livingstone v Rawyards Coal Co. (1879-80)
10 To see SHP’s original news story on this consultation, go to www.shponline.co.uk/ article.asp?pagename=archive&article_id=7835
11 To see SHP’s latest news story on the Bill, go to www.shponline.co.uk/ article.asp?
pagename=archive&article_id=8003
Mike Boyle CMIOSH is a consultant specialising in personal injury claims
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