Compensation for asbestos related pleural plaques

Those with asbestos related pleural plaques¹ are no longer entitled to compensation through the courts ruled the Court of Appeal on 26 January 2006 in the pleural plaques test cases.²

Workers whose health has been damaged by their employer have been let down. The decision to overturn 20 years of case law was made on policy grounds. The Court of Appeal prioritised the commercial interests of insurers and employers over the interests of workers.

All of the employers involved in the pleural plaques test cases admitted that they had negligently exposed their staff to asbestos dust.

There will be an appeal to the House of Lords, but the appeal hearing is not likely to take place until 12-18 months from now.

Often those who are diagnosed with pleural plaques have been exposed to asbestos over a period of many years and at high intensity. They will suffer anxiety as a result of the diagnosis and face increased risks of developing more serious asbestos related disease including cancer.

One of the Court of Appeal Judges, Lady Justice Janet Smith³, disagreed with the majority decision of the court, and acknowledged the substantial increase in risk of developing a more serious asbestos disease those exposed to asbestos live with. She says, for a person who has not had occupational exposure to asbestos, the lifetime risk of developing mesothelioma is as low as 1 in 10,000. For a person who has been exposed to sufficient asbestos to develop pleural plaques, the risk will typically be between 1% and 5%, depending on the dose of asbestos received. It follows that any claimant who has pleural plaques will also be at a significantly increased risk (at least one hundred fold and possibly five hundredfold) of developing mesothelioma.

The decision does not affect the right of victims of asbestos disease to claim compensation through the courts for the more serious asbestos related conditions of asbestosis, mesothelioma and lung cancer.

There will be an appeal to the House of Lords, but the appeal hearing is not likely to take place until 12-18 months from now.

The Court of Appeal judges did not give clear guidelines as to how pleural thickening cases would be dealt with. It is often difficult to distinguish between pleural plaques and pleural thickening. It is now more important than before to distinguish whether the diagnosis is pleural plaques or pleural thickening, as pleural plaques will now not be compensated by the courts.

Irwin Mitchell is working on the assumption that pleural thickening, which often gives rise to symptoms, will remain a condition for which the courts award compensation.

In spite of this set back, it is important for those who are diagnosed with asbestos disease, including pleural plaques and pleural thickening, to seek legal advice promptly to avoid falling foul of the strict court time limits for making a claim.

Any court action must be started within three years of the date of being told for the first time that you have an asbestos related condition, otherwise the court action is likely to fail for reasons of delay alone. The courts have discretion to overlook the time limit on a case by case basis, but it is very difficult to persuade them to do so.

Irwin Mitchell continue to pursue claims for those suffering from asbestos related pleural thickening and the more serious asbestos related diseases.

We continue to represent those suffering from pleural plaques and we will protect their position pending the outcome of the appeal to the House of Lords. We look to the House of Lords to overturn the decision of the Court of Appeal and reinstate compensation for those with pleura plaques.

Ken Bellamy, of Sheffield, is one of those affected by the Court of Appeal decision. He was diagnosed with pleural plaques in late2005 and came into contact with asbestos whilst working as a pipe fitter between 1965 and 1979. He says,

"Whilst I'm hugely relieved I don't have cancer, there is a possibility I will go on to develop an asbestos-related terminal condition. I was the chief witness in the case of a colleague who died aged only 38 as a result of mesothelioma. He had the same exposure to asbestos that we all had through the negligent work practices of our employer. I don't know what the future will bring and at only 56 I have to live each day in fear that I will not live to watch my children and grandchildren grow up. My wife and I have such a lot that we would like to achieve and experience in life, but now we feel the clock is ticking."

We are working on the assumption that pleural thickening, which often gives rise to symptoms, will remain a condition for which the courts award compensation.

¹Pleural plaques are localised areas of pleural thickening with well demarcated edges, usually involving the visceral pleura but sometimes the parietal pleura. There is no well defined minimum level of exposure but clinical experience shows that when plaques are radiologically detectable in the UK there is nearly always a history of significant occupational or paraoccupational exposure to asbestos.

²Grieves et al [2006] EWCA Civ 27.

³Chair of the Harold Shipman enquiry

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