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No compensation for Pleural Plaques arising from asbestos exposure

With Watson Burton LLP Law Firm Â

A recent judgment in the House of Lords, in Johnston, Rothwell and Others [2007] UKHL 39, has seemingly brought the curtain down on a lengthy legal saga. The dispute centred on whether or not Claimants who contract a condition known as Pleural Plaques, as a result of negligent exposure to Asbestos, are entitled to recover damages.

Pleural Plaques are areas of scar tissue which form in the chest lining and diaphragm as a result of Asbestos exposure. Although the plaques themselves are said to be ‘asymptomatic,’ previous case law provided that Claimants, who were wrongfully exposed to Asbestos and developed the condition, were entitled to compensation.

In November 2004, the Claimants brought an action after Insurance firms wished to cease making payments for Pleural Plaques. The High Court reaffirmed the claimants’ entitlement to damages, on the grounds that the existence of Pleural Plaques meant there was an increased risk of developing a more serious Asbestos-related condition and Claimants should be compensated for any anxiety caused by this.

Norwich Union, who took the lead on behalf of the Insurance Industry, appealed the decision. In January 2006, the Court of Appeal ruled that Pleural Plaques were not a disease and that Courts should not award damages for anxiety caused by the ‘risk’ of injury or damage. The recent House of Lords judgment upheld the previous decision in unanimously dismissing the Claimants’ appeals. Lord Hoffman reiterated that Pleural Plaques were not an ‘actionable injury’ and, save in exceptional cases, they were symptomless and did not of themselves increase the risk of developing a more serious Asbestos-related condition at a later date.

It was therefore not the existence of Plaques themselves that increased the risk of a more serious condition; the increased risk stemmed from the fact there had been actual exposure to Asbestos. The Law Lords accepted that the Claimants in Johnston had been negligently exposed to Asbestos and, if they were to develop a more serious Asbestos-related condition, such as Mesothelioma, time limits for bringing a claim would not run until such a condition became apparent.

The House of Lords’ ruling may have marked a successful conclusion to a protracted campaign by UK Insurance Companies to end compensation payments for Pleural Plaques. Or has it? The decision has been met with disappointment and consternation from Claimant Representatives and Trades Unions. The Government has made it clear that it will not legislate in favour of Claimants to overturn the effect of the judgment. However, Scotland’s First Minister, Alex Salmond, has said that the ruling is not binding in Scotland and it will be interesting to see if the Scottish Parliament introduces laws of their own to award compensation to Claimants with Pleural Plaques.

Despite the favourable outcome achieved by the recent judgment in the Lords, Insurers are not prepared to rest on their laurels and are pursuing other avenues to potentially reduce their liability for Asbestos-related illnesses. In a number of ‘Insurance Trigger’ test cases currently running, Insurers are arguing that it is the Insurer on risk at the time an Asbestos illness develops, not the Insurer at the time of exposure, who is liable. As many businesses that negligently exposed employees to Asbestos are now defunct, Claimants may struggle to recover compensation in such cases if the Insurers succeed on this point. Both sides are currently awaiting a practice direction from the High Court on the issue.

If you have any queries relating to this article, or any other Personal Injury matter, please contact Mark Lennon at Watson Burton LLP on 0191 244 4444 or email mark.lennon@watsonburton.com.

This was posted in Bdaily's Members' News section by Ruth Mitchell .