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Victims and insurers await a ruling on pleural plaques

LAW

The Court of Appeal recently ruled that victims of lung scarring caused by asbestos inhalation were not entitled to compensation unless cancer develops. The case has now moved on to the House of Lords, but will it uphold the decision? James Bell reports

YOU MAY recall my piece from last summer regarding the battle over pleural plaques.

Pleural plaques are small areas of scarring and calcification of lung tissue arising from irritation by inhaled asbestos fibres.

They do not cause noticeable ill-health themselves, but they do indicate exposure to asbestos and an increased risk of more serious conditions such as cancer or mesothelioma.

Because of this, pleural plaque sufferers have been labelled by some as 'the worried well'.

For 20 years or so the insurance industry paid claims to those suffering with pleural plaques on the grounds that these people had been exposed to asbestos in some way and the plaques could lead to cancer.

The damages were modest ? usually less than £10,000.

Finally in 2005 the insurance industry decided to rip up the old agreements and pursued appeals on a number of cases.

Their argument was that the plaques were not an injury, as they didn't cause too much physical difficulty.

There was a change in the lung tissue but this, they said, was nothing to be overly concerned about.

Should the claimants go on to develop full-blown cancer then they could sue, but for pleural plaques the insurers shut up shop and refused to pay.

Both claimants and insurers took matters further and last year a judge, while upholding the principle that these claims did involve an injury, ruled that the value of the compensation for these claims was too high.

Both sides appealed.

On January 26, 2006, the Court of Appeal handed down a judgment which reversed 20 years of precedent regarding compensation for pleural plaques.

The Court found, by a 2:1 majority, that pleural plaques are not a 'compensable condition'. Surprisingly, the court also said that there were public policy grounds for striking out the claims.

The judges said that, if pleural plaques give rise to a cause of action, 'on discovery of the existence of pleural plaques a claimant will be advised that he should bring a claim in order to protect his position, even if he would not otherwise wish to do so unless and until he developed symptomatic disease'.

And they made the following points:

Bringing legal proceedings is stressful. It will result in the claimant's attention being drawn to all the possible consequences of exposure to asbestos and may well create or augment the anxiety for which compensation will be claimed ? a self-fulfilling prophecy.

There is a danger that people who make a business out of litigation will encourage workers who have been exposed to asbestos to have CT scans in order to see whether they have pleural plaques for the sole purpose of bringing claims for compensation.

Such a practice will tend to create stress and anxiety where none exists.

Some claimants will be tempted to claim a final award ? giving up their chance of a claim for cancer ? and so gambling that they will not contract an asbestos-related disease.

The costs of litigation in pleural plaque cases tend to be more than the damages recoverable.

The dissenting judge, Lady Justice Smith said: 'In my judgment, such a tissue change does amount to an injury. The presence or absence of symptoms goes only to the question of how serious the injury is.

'The plaques are of the same nature whether they are extensive or limited and, in my view, if extensive plaques are an injury, so are limited ones.

'I cannot accept that a visible tissue change ? such as a lesion caused by radiation on the skin ? is different in nature from a tissue change which is hidden within the body. I would also hold that pleural plaques are a disease.' Citing that old legal chestnut, 'what would the man on the Clapham omnibus think?' she stated that: 'I would hold that the need to do justice to these injured claimants, in accordance with what I believe are the expectations of most reasonable people, should outweigh the policy considerations advanced by the appellants (the insurers).' The insurers are naturally very pleased with the outcome, which could prevent 100,000 court cases, thereby saving the industry up to £1.4 billion, a very large and unexpected windfall.

At appeal, the insurers raised the highly emotive 'compensation culture' argument in a move highly reminiscent of the case of Fairchild (2001).

The insurers' defence in the Fai rch i ld case was that where a worker had been exposed to two separate periods of exposure to asbestos then the claim should be dismissed as no one could be sure who had caused the injury.

This clever argument won the backing of the Court of Appeal but was overturned by the House of Lords in 2002.

The insurers ended up with a huge legal bill and regretting that they tried to change the status quo.

Once again the Court of Appeal is siding with asbestos defendants and their insurers and once again both sides are now looking to the House of Lords for a final ruling on these claims.

Key points Pleu ral plaques are no longer deemed to be an inju ry.

Only those with asbestos related cancer can sue.

The House of Lords will give a final ruling on this issue next year.