|
Date: 12 March 2010
PLEURAL PLAQUES, MESOTHELIOMA CLAIMS AND A POSSIBLE NEW EMPLOYERS’ LIABILITY INSURANCE BUREAU
Pleural plaques
In 2007 in the case of Johnston –v- NEI International Combustion Ltd the House of Lords decided that pleural plaques – small localised areas of fibrosis caused by exposure to asbestos fibres found within the pleura of the lung – were no longer actionable (and thus compensatable) damage. Before this decision, people had been able to bring claims for compensation for pleural plaques since the 1980s.
Many strongly disagreed with the House of Lords decision and the government decided to start a consultation process, in order to consider whether to introduce legislation to overturn the effects of the court’s decision. The results of that publication have just been published and contain the government’s recommendations as set out below.
Medical evidence
Pleural plaques are an indicator of exposure to asbestos, and in the vast majority of cases they are symptomless. There is no available medical evidence showing any link between pleural plaques and the development of mesothelioma or other asbestos related diseases. Those diagnosed with pleural plaques have therefore not suffered any actionable loss.
As it stands, the government are unable to overturn the House of Lords decision or even set up an open-ended no-fault compensation scheme for those diagnosed.
Limited extra-statutory scheme
There are no grounds to restore the position to what it was before the 2007 ruling but the government were concerned that some individuals have been left without a claim, even though when they started the process they would have expected to receive compensation.
The government has decided to make £5,000 payments to individuals in this position (appropriately reflecting the position the claimant would have been in i.e. where the claim has already begun). Such an approach is highly unusual and the government is eager to stress that this is a unique situation and does not set a precedent for the future for other circumstances.
Speeding up mesothelioma claims
The government is concerned at the length of time cases take to come to court/settlement. This is of particular importance in mesothelioma cases because patients often die very soon after diagnosis, leaving little time to obtain records and compensation.
The government wants to establish a working group (involving claimant solicitors, trade unions, insurers, the judiciary and civil servants) to streamline cases in order that they are concluded promptly. There is also some suggestion of an increase in payments made in compensation.
In addition in November 2009 the government introduced the Third Parties (Rights against Insurers) Bill into Parliament. The Bill (expected to become law in this Parliament) will enable claims against insolvent employers to be brought directly against the employer’s insurers. This will simplify court procedures and remove the need for dissolved companies to be restored to the register.
The Employers’ Liability Tracing Office / Employers’ Liability Insurance Bureau
In 2008 over 3000 individuals were left unable to obtain full compensation because they could not trace the employer’s insurer. Even though the voluntary ABI tracing service has led to improvements, the situation is still unsatisfactory. Two proposals are being put forward:
-
The creation of a UK-wide Employers’ Liability Tracing Office (ELTO) to create and manage an electronic database of EL policies and to operate the existing tracing service. Initially existing trace data will be used and renewed policies will be included shortly afterwards.
-
Even with an ELTO there will be some individuals, especially those suffering from long-tail diseases (such as mesothelioma), who are unable to trace their insurance records and are thus denied full compensation. Therefore it has been proposed to set-up the Employers’ Liability Insurance Bureau (ELIB) to provide a fund of last resort for individuals unable to trace EL insurance records and provide some adequate form of compensation.
|
