14 March 2005
It remains to be seen whether the 'scan van', or mobile X-ray clinic (the latest symbol of the much-debated compensation culture), will be forced off the roads after the recent landmark ruling of the High Court concerning a class of asbestosis claims.
The test case, John Grieves & ors v FT Everard & Sons & British Uralite plc & ors, concerned claims by sufferers of pleural plaques, a calcification of the lungs that can be caused by exposure to asbestos. So far, lawyers have been approached by at least one claims company in the North East which has invested in the kind of mobile technology that regularly tours the shopping malls of the US drumming up asbestos-related claims. It has been estimated that 'worried-well' claimants account for three-quarters of all US asbestos compensation claims.
The recent legal challenge has been welcomed as a much-needed attempt to keep the scan vans out of the UK, or denounced as a cynical attempt by defendant insurers, depending on which side the claimant-defendant divide lawyers are on. Mr Justice Holland's ruling last month has left both sets of lawyers with mixed feelings. He failed to deliver to the insurance industry the knock-out blow it wanted. Instead, the judge affirmed that the pleural plaque condition was capable of compensation.
However, there was a partial victory as well, because the court cut the provisional damages that pleural plaque victims can claim from between £5,000 and £7,000 to between £3,500 and £4,000. It also ruled that claimants who accepted full and final damages should get between £5,000 and £7,000 rather than the £12,500 and £20,000 received previously.
The insurers that brought the case, Norwich Union and Zurich, had argued that the condition could be an indicator of exposure to asbestos but that it was not a disease and did not cause symptoms. Dominic Clayden, director of technical claims at Norwich Union, says that the plaques do not develop into any other condition such as lung cancer or mesothelioma, the invariably terminal cancer affecting the lining of the lungs caused by asbestos. Plaques indicate that an individual has possibly been exposed to asbestos, he says, but it could just as likely be exposure to sand quartz minerals, or even talc. "The important distinction to make is that it is the exposure to asbestos that may lead to another condition, not the plaques themselves," Clayden argues.
Colin Ettinger, the president of the Association of Personal Injury Lawyers (Apil), calls the legal challenge "nothing but a shameless and greedy attempt by insurers to save yet more money at the expense of injured people". He compares it to the attempt by insurers to bar claims by workers who had been exposed to asbestos by more than one employer (in Fairchild v Waddington & Leeds City Council), which was overturned by the House of Lords in 2002. The present case is a "clear victory for justice over greed", he adds.
"Everyone was disappointed with the judgment," reports Adrian Budgen, an industrial diseases expert with claimant firm Irwin Mitchell. "That means Mr Justice Holland has probably got it about right." Why should asbestos victims be penalised, he asks, because insurers, while content to continue to take the premiums, do nothing to pressure employers to take precautions?
Budgen points out that the claimants have received compensation for the last 20 years. "And this should rightly continue," he says. "They've contracted an asbestos-related condition through no fault of their own and deserve to be compensated." He is pleased that the court has acknowledged that "the real anxiety suffered by asbestos victims, who have been diagnosed with pleural plaques, deserves compensation". His firm has a number of clients who are affected by the test case, such as John Hart, a 67-year-old from Derby who was exposed to asbestos dust during his employment at British Celanese (now Acordis) between 1962 and 1993. According to Budgen, his client is very concerned about the possible progression of his pleural plaque into a full-blown, asbestos-related disease, as has happened to so many of his old workmates.
"The insurance industry needs to face up to its responsibilities and accept that these claimants deserve compensation," Budgen says. "We don't think the insurers will be content just to see a reduction in the amounts paid, and expect them to continue to fight to deny compensation to pleural plaque sufferers."
Nicolas Pargeter, an industrial diseases expert with the Forum of Insurance Lawyers and head of the occupational disease unit at Berrymans Lace Mawer, reckons the ruling favours defendants. "If you compare our position now to the position prior to the judgment, we're still paying out on pleural plaques, but we're going to be paying a lot less now," he says. "Pleural plaques are the grey area between what should and shouldn't be compensated. This is a condition that is completely symptomatic and we have thousands of people with pleural plaques. It's an area that should be reviewed by the courts, and it would benefit from the Court of Appeal having a look at it."
The actuarial profession recently estimated that the total future UK cost of asbestos-related diseases is anywhere within the region of £8bn-20bn, which represents 80,000 to 200,000 new claims over the next 30 years. But Julian Lowe, actuarial director at Norwich Union, who chaired the actuarial profession working party, puts the insurance costs of plaques at between £200m and £1.2bn. This figure, he acknowledges, is "a small part of the overall total".
Certainly, Apil's Ettinger has little sympathy for his adversaries. "They think they have justice on their side this time because people aren't dying as a result of pleural plaques, but what's never mentioned is that none of this needed to have happened at all if the employer had taken basic safety precautions to prevent people being exposed," he says. "I have no sympathy for the insurance industry. It's known that asbestos was dangerous for donkey's years."