The Justice Secretary, Jack Straw, has confirmed that the Government will not reinstate pleural plaques as a compensatable injury. They will not interfere with The House of Lords decision in Johnston v NEI International October 2007, which confirmed that asymptomatic pleural plaques were not an actionable injury. However Claimants with ongoing unresolved claims, which were begun before October 2007, will receive one-off payments of £5,000 from the Government. Full details of the payment scheme are yet to be announced.
Importantly the Government has recognised that whilst pleural plaques, which are areas of fibrosis in the lungs, are a mark of exposure to asbestos, they are generally symptomless, are not harmful and do not become harmful. Any increased risk of developing an asbestos-related disease that a person with pleural plaques has arises out of the exposure to asbestos, rather than from the plaques themselves.
A range of measures has been announced including increased medical research into asbestos-related disease, a working group to develop speedier and simplified claims procedures, increased interim payments in mesothelioma claims, and improving the tracing of insurance policies needed to make claims.
A consultation is taking place on establishing an employer’s liability insurance bureau to serve as a fund of last resort for mesothelioma Claimants.
The Government’s announcement recognises the important legal principle that a symptomless physiological change is not sufficient to form the basis of a compensation claim. The range of measures announced by the Government should assist more people with serious asbestos-related disease to obtain compensation more quickly.
The Government has not followed the Scottish Government, which reinstated pleural plaques and other asymptomatic asbestos disease in the Damages (Asbestos-Related Conditions (Scotland)) Act 2009. If it had done so this would have led to a very significant increase in the cost of claims to employers and insurers. The Actuarial Professions’ UK Asbestos Working Party recently updated its estimate of future costs of asbestos claims from £4.7 billion for 2009 to 2040, to £11 billion for 2009 to 2050.