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| ISSN 1470-8108 | Issue 69 | Winter 2007-08 |
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Contents:
1. The End of UK Compensation for Pleural Plaques? 1. The End of UK Compensation for Pleural Plaques? On October 17, 2007, the Law Lords upheld a Court of Appeal ruling which will, in the absence of Parliamentary action, deprive UK pleural plaque sufferers of compensation payouts of up to £25 million/year1 or £1.4 billion overall ($49m/yr or $2.8bn).2 Although a defendants' verdict was expected in the case, commonly referred to as Rothwell v. Chemical & Insulating Co. Ltd. (Rothwell),3 the reality of the judicial climate post-Rothwell has left many asbestos sufferers and their legal representatives reeling.4 Valerie Pask, who has lost five family members to asbestos-related diseases, has pleural plaques as does her sister Barbara and her niece Michelle. Mrs. Pask categorized the ruling as “an absolute scandal.” Jim Day, another plaque sufferer, called the decision “unjust,” adding: “None of us should have been exposed to deadly asbestos fibres in our work and we should not have to live with the knowledge that we have a heightened risk of dying from asbestos disease in the future. The small levels of compensation which had been paid for many years provided some consolation for the effects of asbestos on our lungs and the fear of future fatal disease. The decision is all about saving money for the insurance industry and not about justice for asbestos victims.” 5 Plaque sufferers will be “baffled and offended” by this judicial reversal of policy according to Ian McFall, whose law firm acted for two of the appellants in the House of Lords litigation.6 How could they be otherwise when prior to this latest salvo on victims' rights, obtaining compensation for plaques was more or less routine: from 1984-2005, all 22 senior lawyers acting as County Court judges awarded full and final compensation for pleural plaques ranging from £15,000-£20,000.7 This “harsh decision” reinforces the public perception that the Law Lords are divorced from the reality experienced by ordinary people. Commenting on this verdict, Solicitor Frances McCarthy, formerly the President of the Association of Personal Injury Lawyers (APIL), said: “I don't think any of the judges have any concept of what it's like to have the fear of knowing you have pleural plaques…I can't get my head around how you can have a scarring on your skin and that can be compensatable, but a scar on your lungs isn't.” 8 The current APIL President, Martin Bare, echoed McCarthy's remarks and wondered whether: “their Lordships have ever sat in the same room as a man who worked alongside his father and uncle and saw them both die from mesothelioma, and now finds that he has pleural plaques. Perhaps their Lordships could explain to this person that his anxiety, and the scarring on his pleura, is not compensatable.” 9 Bare declared that he was: “absolutely staggered that the Lords have dashed the hopes of these men who have been negligently exposed to asbestos… The ruling effectively tells them they have not been injured, yet their bodies have been invaded by asbestos and each day the clock is ticking.” The Judgment The conjoined appeals in Rothwell were brought by men diagnosed with pleural plaques, scars on the lungs or lining of the lungs, which are a marker of asbestos exposure decades earlier. The claimants argued that their employers' negligence in failing to prevent the exposure which caused them physical injury was actionable under English tort law. They also claimed that the plaques together with the risks of other asbestos-related disease and the resultant anxiety constituted actionable damage. The issues of psychiatric illness and irritable bowel syndrome were raised by appellant Grieves. Defending these claims on behalf of the UK insurance industry were Norwich Union, part of the world's 6th largest insurance group, and Zurich Financial Services, a global provider of insurance-based financial services. The 41-page judgment by Lords Hoffman, Hope of Craighead, Scott of Foscote, Rodger of Earlsferry and Mance is heavy on legal analysis and short on justice. The conclusions they reached were deemed “perverse” and incendiary by some observers; their language was characterized as, at best, intemperate and, at worst, insulting. In the leading speech Lord Hoffman ruled that as “proof of damage is an essential element in a claim in negligence,” compensation for “symptomless plaques” was unwarranted. The other Judges echoed this finding: Lord Hope: “No action lies for a wrong which has not resulted in some element of loss, injury or damage… on their own, the pleural plaques did not amount to an injury, or a disease, which is actionable... It is a claim which has no value at all.” Lord Scott: “Asymptomatic pleural plaques do not constitute damage… the law of tort is not concerned with trivia.” Lord Rodger: “the plaques are not an actionable injury… the law treats them as a condition that is not serious enough to require its intervention.” Lord Mance: “the pleural plaques did not by themselves constitute or involve injury and damage sufficient to enable an action to lie in tort…” The appellants maintained that the aggregation of their present condition, the risk of related diseases and their apprehension for the future breached the threshold of actionable damage. This assertion was unanimously rejected with comments such as those from Lord Hope: “It is not possible, by adding together two or more components, none of which in itself is actionable, to arrive at something which is actionable.” Lord Scott put his views on this point even more succinctly: “Nought plus nought plus nought equals nought.” The Law Lords were at their most offensive in the dissection of the appeal by Mr. Grieves, whose clinical depression was initiated by a diagnosis of pleural plaques. Dismissing his claim, they intimated that Mr. Grieves was not a person of “ordinary fortitude,” “sufficient fortitude,”, “customary phlegm,” or “normally robust constitution.” Turning the law on its head, Lord Rodger found that: “The mechanism which caused Mr. Grieves' illness was not the defendants' act in exposing him to the asbestos dust, but the doctors' telling him of the heightened risk that he would develop asbestosis or mesothelioma in the future.” In view of all that preceded it, Lord Scott's reference to the “somewhat discordant note” struck by the wholesale dismissal of the appeals is somewhat surprising. Having eviscerated the arguments advanced by the appellants, Lord Scott floated the possibility of actions being brought under contract law: “Each of the employers must surely have owed its employees a contractual duty of care, as well as and commensurate with the tortious duty on which the appellants based their claims… It might be well arguable that the breach of a contractual duty to provide a safe working environment for employees, an environment where reasonable precautions had been taken to avoid their exposure to injurious asbestos dust, would justify an award of contractual damages to compensate the employees for subjecting them to the risk of contracting in the future a life-threatening asbestos related disease…” Lord Hope and Lord Mance agreed that contract law might deliver a remedy in damages where tort law had not. There are, of course, many impediments to embarking on a “difficult and uncertain” legal quest for damages via a breach of contract, not least of which is funding.10 In addition, eligible litigants would be restricted to those with a contractual relationship with the defendant such as an employee and exclude those with bystander exposure. It is likely that insurers will exploit this ruling to attack compensation for other categories of claims such as symptomless pleural thickening and minimal asbestosis. Although it is technically possible that defendants may attempt to reclaim compensation awarded for pleural plaques, legal experts says their chances of success are fairly low. The Bigger Picture
It is important to examine this case in the wider context. In the 20th century, asbestos defendants used every means, both fair and foul, to avoid paying asbestos-related claims. In the 21st century, their insurers have taken up this challenge and embarked on a series of high profile legal actions to curtail payments to asbestos plaintiffs. While Rothwell is the most recent, earlier test cases included Fairchild (2002)11 and Barker (2006).12 The defendants' ruling by the House of Lords in Barker, which would have ended joint and several liability for negligent employers in mesothelioma personal injury cases, caused such an uproar that within a matter of weeks Parliament changed the law. A clause was inserted into the Compensation Bill, conveniently going through the House of Commons at that time, to restore the rights of mesothelioma litigants to recover full compensation from whichever employer or insurer could be traced. Similar action was called for in the aftermath of Rothwell with a spokesman for the Asbestos Victims Support Groups Forum UK urging: “MPs of all parties to act swiftly to overturn this unjust decision. ... This is a disease which affects working class people who were wrongly exposed to asbestos. It is all too easy for those who never risked their lives in industry to dismiss the suffering of so many who did. This judgment gives solace to rich insurance companies and leaves asbestos victims uncompensated. It is a disgrace.”
Shortly after the Law Lords decision in Rothwell was promulgated, the Government indicated its disinclination to interfere in a written answer given by Bridget Prentice, Parliamentary Under-Secretary of State at the Ministry of Justice, to a question submitted by the MP for Paisley and Renfrewshire North, Jim Sheridan. Prentice wrote: “It is already possible for people suffering from a range of asbestos-related diseases to claim compensation under the common law of negligence where they have suffered damage. In its judgment of 17 October in the case of Rothwell v. Chemical & Insulating Co. Ltd. the House of Lords held that pleural plaques do not constitute actionable or compensatable damage. The House of Lords considered the issues very thoroughly on the basis of all the evidence put before them and reached a unanimous decision. Having considered the judgment very carefully, the Government have decided that it would not be appropriate to legislate on the issue.” 13 Despite the official response, dissatisfaction was growing in Westminster; within a fortnight, scores of politicians expressed their support for government action in Early Day Motion 207: Lords Ruling on Pleural Plaques. The Parliamentarians agreed that: “pleural plaques caused by exposure to asbestos result in physiological damages which constitutes a loss of faculty meriting compensation; (and issued) calls on the Secretary of State for Justice to…instigate discussions on an appropriate compensation scheme financed by the insurance industry because it is now clear that workers suffering the condition will not get compensation through the courts.”14 Over the following weeks, a backbench rebellion was coalescing with increasing demands being made for a Barker-like response from the Government. Expressing their views in Early Day Motion 532: Pleural Plaques and the Law Lords' Decision, MPs agreed that: “…pleural plaques caused by the negligent exposure to asbestos make obvious that the body of a sufferer has been polluted by asbestos particles; (this House) believes that the polluter should pay compensation to those negligently contaminated by the fatal fibre; and calls on the Secretary of State for Justice to introduce legislative proposals to reverse the Law Lords' decision …”15 On January 29, 2008, hundreds of trade union members from Liverpool, London, Southampton, Newcastle, Manchester, Scotland and Wales will join asbestos victims to lobby Parliament. The protest is being organized by the GMB Heat & Frost Insulation Craft Branch16 and is supported by other trade unions, including the Union of Construction, Allied Trades and Technicians, and the Asbestos Victims Support Groups Forum which will be represented at the London event by groups from throughout the country.17 Criticizing the Lords' judgement, GMB Convenor Jimmy Parish said it affected any worker who “has had any contact with asbestos from fitters, welders, dockers, plumbers, carpenters, electricians and school teachers and office workers.” “Why,” he asked “should employers and insurance companies get away with polluting workers' lungs with pleural plaques and not offer any compensation?”18 Scotland Fortunately for Scottish plaques sufferers, the reaction of the government north of the border has been swifter and more decisive than that in Westminster. Shortly after the Rothwell verdict was issued, the Scottish Cabinet announced plans to introduce a bill in the Scottish Parliament to reinstate the rights of plaques sufferers to pursue actions for damages. On November 29, Scottish Justice Secretary Kenny MacAkskill told journalists: “The effects of asbestos are a terrible legacy of Scotland's industrial past and we should not turn our backs on those who contributed to our nation's wealth in the past … Pleural plaques in anyone exposed to asbestos mean they have a greatly increased lifetime risk of developing mesothelioma and a small but significantly increased risk of developing bronchial carcinoma.”19 The Association of British Insurers (ABI) did not welcome the Scottish Government's plan, calling the proposed legislation “a serious step.” ABI Director General Stephen Haddrill warned it “could significantly increase costs for Scottish business and impact on the cost of insurance.”20 Concluding Thoughts
It has often been said that the law must not only be fair but be seen to be fair in the eyes of the ordinary citizen. The Oxford Dictionary of English defines fair as: “treating people equitably without favouritism or discrimination.”21 Is it fair that:
The issue of fairness has been omitted by virtually all the jurists in Rothwell with the exception of Lady Justice Smith. In her dissenting Court of Appeal opinion (2006), Lady Smith cited the expectations of “most people on the Clapham omnibus.”22 Dismantling the pro-defendants' verdict given by her Appeal Court colleagues, she was in no doubt that “the claimant's cause of action is complete at the time when the pleural plaques formed because, by that time, he was already subject to appreciable risks of serious conditions arising from the same wrongful act.” Lady Smith believed that the Rothwell claimants deserved better: “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.”23 By ending compensation for pleural plaques, the House of Lords has created a deeply felt sense of grievance among those whose negligent exposure to asbestos has left them with an irreversible medically acknowledged condition. In the main, the people affected by pleural plaques are part of the Labor Party's heartland. Prime Minister Gordon Brown, for 20+ years an MP for Dunfermline East, is well aware of the asbestos fallout from Scotland's industrial past; thousands of his constituents are at high risk of contracting asbestos-related illnesses, having worked in Glasgow's shipyards. Should the Prime Minister and the Government continue the policy of non-intervention in the pleural plaques affair, the next General Election may bring them some very unwelcome surprises. 2. Drawing the Line: Pleural Plaques, Pleural Thickening & Asbestosis A judgment issued after the Court of Appeal's decision in Rothwell and prior to the House of Lords' ruling could be a harbinger of things to come. Michael Charles Hirst contracted pleural disease and asbestosis after negligent exposure to asbestos as a roofer employed from 1950-85 by William Proctor & Sons Ltd. and Proctor Roofing Services Ltd. Sheffield County Court Judge Jeremy Baker QC issued a detailed 18-page verdict on June 6, 2007 which scrupulously analyzed written and oral medical evidence submitted by two experienced consultant chest physicians: Dr. Hutchcroft and Dr. Hind. The case was complicated not only by the difficulty in diagnosing low levels of pleural disease but also by the fact that the 72-year old claimant suffered from diabetes and cardiac disease. The medical evidence conflicted as to the extent and symptoms of the asbestos-related disease Mr. Hirst had contracted. The judge, who had at his disposal X-Rays, CT scans, reports from two consultant radiologists, lung capacity and lung function tests, concluded that: “as a result of the Defendants' admitted negligence/breach of statutory duties, the Claimant has been caused to suffer from the asbestos related conditions of pleural plaques and asbestosis. While the former is asymptomatic, the latter condition has already caused the Claimant to suffer material physical damage namely 1% disability together with a significant loss of reserve lung capacity. In my judgment whilst the effect of this damage is not at present substantial, it is certainly more than minimal such that it well traverses the threshold test of constituting actionable damage for the purposes of the recovery of damages.”24 The case was settled on a provisional basis for £10,000. Solicitor David Cass25 from the Sheffield office of Irwin Mitchell represented Mr. Hirst. In light of the Law Lords' Rothwell ruling, he feels that elements of the Hirst verdict are informative: “The House of Lords' decision in Rothwell et al. ended the right to legal redress for pleural plaques claimants, but the judgment was confined to asymptomatic pleural plaques alone. In the case of Hirst the Defendants' insurers sought in effect to extend the application of the Court of Appeal judgment in Rothwell (subsequently upheld by the House of Lords) to different asbestos related diseases. The judge in Hirst firmly rejected that argument. He gave particular weight to the essential difference between symptomatic asbestosis and asymptomatic pleural plaques. The judge accepted that asbestosis was very much more likely than pleural plaques to deteriorate and lead to greater disability in future. He also acknowledged that even a mild degree of manifest respiratory disability was accompanied by the elimination of the body's natural reserve lung capacity. That loss of reserve capacity exacerbated both the effect of the disability due to the asbestosis and the effect of Mr Hirst's other conditions. It is to be hoped that the findings of the judge will be followed in other cases of pleural disease and asbestosis where even mild symptoms are present.” 3. Mesothelioma Claimants 4: Defendants 0 UK PLC condones its profit-driven attack on pleural plaques claimants (see article 1) by pledging a commitment to compensate “genuine sufferers.”26 And yet there are numerous examples which reveal aggressive tactics to avoid asbestos liabilities and minimize compensation awards to people with mesothelioma. In issuing a plaintiff's verdict (June 7, 2007) in John Ferguson v. Zurich Insurance Company, Mr. Recorder Alldis, having reviewed the archiving practices of Eagle Star, Zurich and the Association of British Insurers, found the insurers' record keeping “demonstrably not infallible.” On May 6, 2005, the widow and children of John Tolmie, who had been exposed to asbestos whilst working as a roofer for Fionmell Limited from 1974-1978, were awarded damages of £274,524 with costs of £50,830. The judgement, however, remained unsatisfied as the company had been defunct for decades. Pursuant to the Third Party Rights Against Insurers Act, 1930, a trial commenced in June 2007 to recover the outstanding monies from the Zurich Insurance Company, successor to Eagle Star, alleged to be Fionmell's provider of employers liability insurance. Due to the passage of time and shoddy record-keeping at insurance offices in Plymouth, Truro and Birmingham, no trace of Fionmell's policy could be found. In the end, Mr. Recorder Alldis relied on evidence provided by Mr. Gavin Carter, a former Company Director of Fionmell: “it came down to the question of do I believe Mr. Carter when he told me that he sat at a desk opposite a (employers liability insurance) certificate which said Eagle Star ? I do believe him on that and I do believe he visited the Eagle Star premises.” Solicitor Ruth Davies of John Pickering and Partners represented the Tolmie family. Commenting on the outcome of the case she said: “When we first tried to serve proceedings on Zurich, they refused to accept the action. Despite this setback, our team persisted in chasing the paper trail. It took two more years of letter writing, calls and requests to persuade Zurich to conduct a thorough search of company archives. The delays were frustrating and painful for the family who were astounded that a leading UK insurance company could not find vital company records.” A case which came before Master Steven Whitaker, the procedural judge at the Royal Courts of Justice, in July 2007 illustrates an attempt to slash the amount of compensation to another mesothelioma claimant. Whitaker's judgment documents a challenge to guidelines which set out levels of damages for pain and suffering experienced by mesothelioma victims; the range in the 8th edition of the guidelines issued by the Judicial Studies Board is £47,850-£74,300. Increasingly, where claimants have succumbed relatively quickly, defendants are pressing for lower payments. While judges who accepted this line of argument have ordered compensation of a mere £22,000 and £35,000 in mesothelioma cases, in the judgment George Smith v Bolton Copper Ltd., Master Whitaker found that the proper level of compensation for an illness which lasted “a couple of months” in a case involving a victim who had both pleural and peritoneal mesothelioma and uncontrolled pain was £55,000. Setting this figure, Master Whitaker took into account the type of disease, the level and nature of the pain as well as the duration of the illness. On November 22, 2007, the Court of Appeal upheld a county court ruling on behalf of the claimant in the case of Cox v Rolls Royce Industrial (India) Ltd. Derek Cox, a welder who had worked at power stations between 1961 and 1985, died from mesothelioma on February 13, 2002. As is often the situation in asbestos cases, many of his former employers no longer existed or had become unidentifiable by the time litigation was commenced. Evidence supplied by the Inland Revenue, however, established that Mr. Cox was employed by International Combustion Ltd. at some stage in the tax year 1966-67; intermittent employment was also found with at least four other companies. The defendant Rolls Royce, the corporate successor to International Combustion, appealed the Recorder's verdict on the grounds that the evidence in the original trial “did not even establish that whilst working for International Combustion he (Cox) was deployed at power stations or that his work entailed exposure to asbestos.” Furthermore, the appellant maintained, the asbestos exposure Mr. Cox might have experienced as an International Combustion employee was “de minimis” in duration. Appeal Court Judges Kay, Hooper and Tuckey unanimously rejected the appeal. Relying on evidence submitted by expert witness Robert Clark and the widow, daughter and sister-in-law of Mr. Cox, they found that: “the type of contract work undertaken by International Combustion at power stations and the role of the Deceased in that work, coupled with his generic description of conditions in power stations at the time, undoubtedly justified the finding that this was not a de minimis case.” Disagreeing with the Recorder's calculation that the employment in question lasted “at least four months,” the Appeal Court concluded it was “at least a week.” The definition of “chutzpah,” is a man having murdered his parents asking the Court for leniency on the grounds he is an orphan. There was a pronounced element of this in the argument advanced by the second defendants (Pullan) in the case Darren Spink, Angela Berry v. Shepherd Construction Limited and J Pullan & Sons Limited. Having failed to carry out a timely investigation of liability as per the diseases protocol, the evidence relied on by Pullan was not disclosed until after the death of Mr. Spink. The defense, which was revealed in an application to set judgment aside, was that: “the method of fireproofing the steelwork in the various buildings constructed there had not been the use of Asbestolux boards sawn up by the circular saw by Mr. Spink and others but rather the use of (asbestos-free) blockwork.” The tardy submission of the defense prejudiced not only the claim of the Spink's estate but also that of the first defendants, who could now be held liable for 100% of the damages. In the judgment handed down on December 6, 2007, Master Whitaker found that the second defendants had gained “unfair advantage,” and “skewed” the playing field to their own advantage and the disadvantage of the claimants and Shepherd Construction: “They have secured a position in which they have been able to hold back their 'hand' in respect of their defence based on the evidence of live witnesses who are current employees of the company for months after the claimants' evidence was revealed to them, for months after the time for replying to the pre-action protocol letter had passed and for months after the death of the deceased who will now never have any opportunity to reply to that evidence or to prompt his solicitors into further investigations, the nature of which it is now impossible or difficult to tell.” Although Master Whitaker refused the application to set aside the judgment against Pullan, he did not issue an order for indemnity costs. With the gloom cast over UK asbestos litigation in the light of the Rothwell decision, it is reassuring that, as one solicitor put it, “in our day to day world we are still getting some good results.” Developments: Keith Jones v Metal Box Limited On October 17, 2007, the Court of Appeal refused defendants leave to appeal the decision by Cardiff County Court which awarded £60,000 for the mesothelioma death in 2001 of Beryl Jones, a cleaner/packer at a Neath factory. The contention by Metal Box that the trial judge imposed too high a duty on the company was rejected.27 June Hancock Mesothelioma Research Fund (JHMRF) The relaunch of the JHMRF as an independent charity was announced on December 14, 2007. JHMRF supporters have raised more than £400,000 to fund research, raise public awareness and support those affected by this terrible disease. For more information see the website: http://www.junehancockfund.org Campaign for Parity of Bereavement Compensation The families of mesothelioma victims in Scotland receive larger compensation for bereavement than those in England or Wales.28 On January 14, 2008, a DVD entitled Justice for Asbestos Families was uploaded to the web.29 In this short film, members of the North East Mesothelioma Self Help Group express their views of this unequal treatment of grieving families. “People should all be treated the same,” said one “the same grief, the same loss wherever you are,” said another. Asbestos widow Ann Craig asked “How or why can my grief and the grief, pain and loss of widows and families in England and Wales be any less than that of widows and families in Scotland?” The Plas Club The Plas Club is a new online forum – http://www.theplasclub.com – which may prove a useful resource for personal injury asbestos lawyers faced with complex insurance issues. The site aims to "dejunk, decode, demystify and elucidate substantive and procedural insurance law, practice and procedure" and transform "a claimant-side PI lawyer into a credible, functional insurance lawyer." Although some features of the site can be viewed online now, it will not be fully operational until the official launch and inaugural conference on April 4, 2008. For more information contact: email@theplasclub.com Future events: February 27, 2008 – Action Mesothelioma Day (UK) Events are being held by asbestos victims groups and charities to raise awareness of the UK's epidemic of asbestos-related disease on the UK's 3rd annual Action Mesothelioma Day. Plans are advanced for a parliamentary reception in Westminster, multi-faith service in Leicester, sponsored balloon release and workshop in Manchester, mesothelioma conference in Gateshead, public rally and balloon release in Derby, public meeting and charity balloon release in Portsmouth. For up-to-date information on all these events, see information being collated on the website of Mesothelioma UK: http://www.mesothelioma.uk.com/
March 13, 2008 – Study Day This event for healthcare professionals and support workers is being organized by the British Thoracic Oncology Group, incorporating the British Mesothelioma Interest Group, Mesothelioma UK and Irwin Mitchell Solicitors. Featured speakers include: medical experts Ken O'Byrne, Helen Clayson, Patricia Fisher, Nick Thatcher, John Edwards and Liz Darlison and leading UK activists Tony Whitston, and Michael Lee. The six hour session will be held at the Bridgewater Hall, Lower Mosley Street, Manchester. Attendance is £10 with proceeds to be donated to the Greater Manchester Asbestos Victims Support Group and Mesothelioma UK. For more information please email: geraldine.coombs@irwinmitchell.com March 27, 2008 – Asbestos-related Lung Cancer and Mesothelioma Conference This three hour workshop will take place in Edinburgh, Scotland and is being organized by the Western General Hospital and Clydeside Action on Asbestos. Attendance is free. For more information contact: Diana Borthwick or Phyllis Craig at 0131 537 1767 and 0141 552 8852, respectively.
___________ 1 Kazan-Allen L. Apportionment of Liability for an Indivisible Disease? British Asbestos Newsletter. Issue 62. Spring 2006. Amicus estimates there are 14,000 pleural plaque cases a year which account for 75% of all asbestos-related litigation. 2 Huber N. Law Lords Asbestos Decision Could Save UK Insurers over 1 bln stg. October 17, 2007. http://www.forbes.com. Other estimates put the savings to the insurance industry at £1.1bn-£1.5bn. According to Nick Starling, Director of General Insurance and Health for the Association of British Insurers, UK insurers pay compensation of £4.5bn/year to sufferers of mesothelioma and other asbestos-related diseases. 3 Officially case [2007] UKHL 39 on appeal from [2006] EWCA Civ 27 was Johnston v. NEI International Combustion Ltd., Rothwell v. Chemical and Insulating Company Ltd., Topping v. Benchtown Ltd., Grieves v. F T Everard & Sons and others. 4 Feedback from people attending the Rothwell hearing in the House of Lords on June 25-28, 2007 was grim. Judging by the Law Lords' questions and demeanour throughout the hearing, most observers were pessimistic about the appeal succeeding. 5 Law Lords Rule Out Compensation for Asbestos Victims in Pleural Plaques Case. Press Release. Asbestos Victims Support Groups Forum, UK. October 17, 2007 6 Jones A. Compensation Right Ended for Asbestos Condition Workers. October 17, 2007. http://mediapoint.press.net/article.jsp?id=2634216 7 Why Pleural Plaques Should be Compensated. October 2007. Field Fisher Waterhouse Newsletter. In the High Court verdict issued by Mr. Justice Holland on February 15, 2005 in Rothwell, payouts for pleural plaques were greatly reduced with compensation from £12,500-£20,000 for a final settlement cut to £6,500-£7,000 and provisional awards being reduced from £7,000 to £3,500-£4,000. 8 Robins J. Deadly Decision. Gazette (Weekly Journal of the Law Society). November 8, 2007. Pages 22-23. 9 Bare M. The Gloomy Predictions of their Lordships Decision in Rothwell v Chemical & Insulating Company Limited All Came True. November 2007. APIL Newsletter, Vol. 17, issue 7. 10 Rumor has it that the defendants' costs for the pleural plaques test cases were £1.9m. 11 Kazan-Allen L. Humane Decision by House of Lords in Fairchild Case. Newsletter, Issue 47 12 Kazan-Allen L. Righting a Wrong: Parliament to Reverse Barker. Newsletter, Issue 63 13 House of Commons Hansard Written Answers for 29 Oct 2007 (pt 0045): 14EDM 207: http://edmi.parliament.uk/EDMi/EDMDetails.aspx?EDMID=34309&SESSION=891 15EDM 532: http://edmi.parliament.uk/EDMi/EDMDetails.aspx?EDMID=34672&SESSION=891 16 GMB Flyer: Your Right to Pleural Plaques Compensation http://www.gmb.org.uk/Templates/Internal.asp?NodeID=96541 17 For more information, contact John.McClean@gmb.org.uk 18 Press Release. GMB Members to Demonstrate & Lobby Parliament over Loss of Pleural Plaques Compensation. January 15, 2008. 19 SNP to Reverse Asbestos Decision. November 29, 2007. BBC website: http://newsvote.bbc.co.uk/ 20 Scottish Government Decision on Pleural Plaques Misguided says the ABI. ABI News Release. November 29, 2007. 21 Oxford Dictionary of English. Oxford University Press. 2nd edition, Revised. 2006. 22 Kazan-Allen L. Overturn of UK Position on Pleural Plaques. January 27, 2006. http://www.ibasecretariat.org/lka_oturn_uk_pos_pleu_pl.php 23 The appeals to the Court of Appeal were brought by the defendants who lost their case in the Manchester High Court when Mr. Justice Holland issued a verdict upholding the right to obtain compensation for pleural plaques. (February 2, 2005). 24 Judgment in Michael Charles Hirst v. William Proctor & Sons Ltd., and Proctor Roofing Service Ltd. June 6, 2006. Claim No. 6SE03599, Sheffield County Court 25 For more information on this case email: david.cass@irwinmitchell.com 26 Statements like the following were released in the aftermath of the House of Lords decision in the Rothwell case: The insurance industry is “fully committed to paying compensation to claimants who suffer from mesothelioma and other asbestos-related diseases.” 27 Kazan-Allen L. One Step Forward, Two Steps Back. Newsletter, Issue 65 (p. 5) 28 Kazan-Allen L. News Round-Up. Newsletter, Issue 66 (p. 6) 29 http://www.thompsons.law.co.uk:80/ntext/justice-for-asbestos-families-dvd.htm ___________ Compiled by Laurie Kazan-Allen |