The government consultation paper, 'Pleural plaques' (which has been welcomed by the insurance industry), considers what the most appropriate way of supporting people diagnosed with pleural plaques would be, following the Law Lords' unanimous decision on 17 October 2007 that pleural plaques are not actionable or compensatable damage.
Before last October it was possible for those with pleural plaques to claim damages. The consultation paper asks for views on the best and most appropriate way to respond to the Law Lords decision.
The paper proposes action to improve understanding of pleural plaques and to provide support and reassurance to those diagnosed with pleural plaques to help allay their concerns. It considers the issues that arise in relation to changing the law of negligence and invites views on whether this would or would not be appropriate. It also seeks views on the merits of offering no fault financial support to people diagnosed with pleural plaques, and on two possible ways of doing this.
What are pleural plaques?
Pleural plaques are small localised areas of fibrosis found within the pleura of the lung caused by asbestos exposure. They do not usually cause significant symptoms (if any) and do not impair lung function. Pleural plaques are in themselves benign but are a marker of exposure to asbestos.
What is the background to the case?
On the basis of certain High Court decisions in the 1980s, it was possible for people to be awarded damages for negligent exposure to asbestos which had led to the presence of pleural plaques. However, in January 2006 the Court of Appeal held in the case of Rothwell v Chemical & Insulating Co Ltd (and conjoined cases) that pleural plaques were not compensatable. In a unanimous decision on 17 October 2007 the House of Lords upheld that decision.
Compensation is already available for a range of asbestos-related diseases such as mesothelioma, asbestosis, pneumoconiosis and asbestos-related lung cancer, and the House of Lords judgment confirms that if the claimants did develop any recognised asbestos-related disease in future they would then have a claim in respect of that disease.
However, following the Law Lords' decision compensation is no longer available for pleural plaques. It has been estimated that if this decision were reversed, it could cost the insurance industry from between £1bn to 28.6bn, with a subsequent impact on employers’ liability premiums.
The insurance perspective
Nick Starling, director of general insurance and health at the Association of British Insurers (ABI) has said that ‘The way forward must be through education to reassure and allay the concerns of people with pleural plaques. Legislation is not the answer.’
The consultation closes on the 1st October 2008.