asbestos victims’ claims for compensation rejected by Law Lords

Last week, the House of Lords handed down a decision that will profoundly impact upon thousands of claims for compensation by asbestos victims despite having been negligently exposed to asbestos.

The decision was given in what have become known as the ‘pleural plaques test cases’, Johnston -v- NEI International Combustion Ltd; Rothwell -v- Chemical and Insulating Co Ltd and others; Topping -v- Benchtown Ltd (formerly Jones Bros Preston Ltd); Grieves -v- FT Everard and Sons.

The fundamental issue was whether the appellants, who had been negligently exposed to asbestos and subsequently developed pleural plaques, could sue their employers for compensation. Pleural plaques are a type of incurable scarring on the lining of the lungs frequently described as a ‘marker’ of exposure to asbestos. The plaques rarely cause breathlessness or pain and the number of those diagnosed who go on in later life to develop cancer are relatively few, but this often depends on the level of asbestos exposure.

Nevertheless, over the past two decades, thousands of victims of this sort of asbestos exposure have received compensation for the anxiety they face as to their condition and whether associated disease will develop.

In the test cases, in the court of first instance, the trial judge had awarded substantial damages on the basis that pleural plaques constituted an actionable injury. When the insurers involved appealed this decision, the Court of Appeal reversed it on the basis that the damage was minimal as the pleural plaques did not cause symptoms of themselves or even increase the risk of disease in the future.

On a further appeal to the House of Lords, the appellant victims argued that the pleural plaques did constitute an actionable injury and, in the alternative, that pleural plaques together with the risks of future disease and the mental fear of future disease constituted an actionable claim.

The Lords followed the Court of Appeal and unanimously rejected the victims’ claims on the basis that they were incomplete without proof of damage. It held that as the victims’ damage was symptomless pleural plaques and the risk of future illness or anxiety were negligible, the claims could not be actionable. The Law Lords went further in the case of Mr Grieves. He argued that he had suffered psychiatric illness and irritable bowel syndrome as a result of his pleural plaques diagnosis so that even if the plaques themselves were not actionable, his psychiatric illness was. Mr Grieves was also denied compensation.

Claire Howard, a partner in Blake Lapthorn’s Personal Injury team with experience of dealing with these types of claims, said of this recent ruling:

“It is a real blow to the thousands of people who were exposed to asbestos and live with the real possibility that their health will deteriorate as a result. These individuals were exposed to asbestos when their employers knew of the risks, but failed to protect their workers. The victims lungs have been scarred, but because they currently and I have to say, fortunately, have no symptoms, they aren't entitled to any compensation. The initial appeal to the Court of Appeal is another example of the insurance industry’s considerable and sustained efforts to limit their financial liabilities to victims of negligent employment practices. I have real sympathy for the victims who have to live with the knowledge of the exposure and the potential future health issues, which include mesothelioma a cancer currently without cure, and yet they aren't entitled to any compensation. They simply have to wait and see if health problems occur.”

If you would like to discuss any of the issues raised in this article please do contact Claire Howard. Claire is on the Law Society Personal Injury Panel of specialist solicitors as well as a member of Association of Personal Injury Lawyers (APIL) and can be contacted on 023 8085 7313.