Friday, December 28, 2007

Victims of asbestos fight payout 'apartheid'

People suffering from pleural plaques through exposure to asbestos will soon be facing a postcode lottery to determine whether they qualify for compensation.

Pleural plaques are a scarring on the lining of the lungs, an asymptomatic sign of exposure to asbestos that does not of itself lead to more serious asbestos-related conditions. While about 1,800 people die of asbestos-related diseases each year in Britain, a number that is rising, some commentators have labelled plaques sufferers as 'the worried well' and the House of Lords recently ruled that the condition was not worthy of compensation.

'When people say those things, it's because they haven't had to live with it,' says Valerie Pask, a 55-year-old mother of seven from Nottingham who was diagnosed with plaques last year. Asbestos has left its mark on three generations of her family. 'I'll never forget my eldest brother in the final weeks before he died,' she recalls. 'He was unable to say more than a few words because his lungs were so congested.'

Valerie's brother died from mesothelioma, the cancer contracted from breathing in asbestos dust. Her father worked all his life as a lagger, fitting insulation at power stations. He died of heart disease in 1980, at the age of 65, with his death certificate recording that the condition was 'related to asbestosis'. 'My eldest brother, Brian, died at the age of 50 in 1987 and my next eldest brother, Michael, died in 1991,' she says. Three sons worked with their father. Two of them had their lives cut short by mesothelioma and the surviving brother was recently diagnosed with asbestosis. Her brother-in-law and sister-in-law, who worked with them, have both died of asbestos-related conditions, as did an uncle who worked in London.

But the tragedy doesn't end there. Valerie and her three sisters would clean their father's dust-covered overalls when he came back from the power stations, where he eventually became a site manager. 'He'd take his work clothes off in the conservatory and we'd beat them and get as much dust off as we could; otherwise our washing machine would get clogged up,' she recalls. Two of the four women have been diagnosed with plaques, as has one of their daughters.

In October, the Law Lords refused to overrule an appeal court ruling in January 2006 preventing plaques sufferers from claiming damages (in Rothwell v Chemical & Insulating Co). 'Proof of damage is an essential element in a claim in negligence and in my opinion the symptomless plaques are not compensatable,' ruled Lord Hoffmann.

That ruling will affect 'thousands who have faced emotional anguish since their diagnosis', says Adrian Budgen, head of the asbestos unit at law firm Irwin Mitchell. 'Plaques are a consequence of negligent exposure to asbestos. This exposure physically scars victims and is often a precursor to very serious and sometimes fatal disease.' Budgen, who is advising Valerie, adds: 'With a family history like theirs, you're going to be worried. She is a relatively young woman who has to live with this for the rest of her life.'

The Scottish government announced this month that it intended to reverse the Law Lords' ruling by introducing new legislation. '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,' said Holyrood's Justice Secretary, Kenny MacAskill. 'Pleural plaques in anyone exposed to asbestos mean they have a greatly increased lifetime risk of developing mesothelioma. This will mean that people diagnosed with this condition will have to live with the worry of possible future ill-health for the rest of their lives.'

The Association of British Insurers calls the Scottish approach 'misguided'. Insurers are 'fully committed' to compensating claimants with mesothelioma and other asbestos-related diseases, says the ABI's Stephen Haddrill, but 'introducing legislation to overturn a unanimous Law Lords' ruling could significantly increase costs for Scottish businesses'.

None the less, insurers had been paying out for plaques for 20 years prior to the Rothwell case and payouts have been modest. Since the January 2006 ruling, 'full and final' damages, which settle the case once and for all, have been cut from £12,500-£20,000 to £5,000-£7,000.

There is a recent precedent for ministers in England and Wales stepping in to protect families from the courts when they overruled the House of Lords judgment by the Law Lords in the case of Sylvia Barker in 2006. In that case (The Observer, 5 March 2006), insurers argued that if there was more than one employer, compensation for mesothelioma should be split between them. As some have now gone out of business, this would have meant families missing out on part or all of their compensation. Ministers therefore amended the Compensation Act to protect families.

Campaigners are pessimistic about Westminster following the Scottish lead on plaques cases, even though the construction union Ucatt last week won a government commitment to review the Rothwell decision. 'It's going to look unjust if you have sufferers in Scotland receiving compensation and those south of the border aren't,' says Tony Whitson, chair of the Asbestos Victims Support Groups Forum UK.

Campaigners point to a growing difference between England and Wales on the one hand and Scotland on the other, where the life-extending drug Alimta is more readily available for mesothelioma sufferers and where bereavement payments of up to £30,000 have been made by the courts (such compensation is fixed at £10,000 in England). Now it seems likely plaques sufferers will only get compensation in Scotland.

Valerie says: 'What makes me angry is that if you have a minor scar on your body you can get compensation. Thousands of people receive compensation for stress, but we get nothing. The scarring is inside me.'

She says she suffers nightmares and has been out socialising only four times since she was diagnosed 18 months ago. 'Employers knew the harm asbestos was doing and carried on using it because it was cheap,' she says. 'Thousands of people are affected now and will be over the next 20 years and it all could have been prevented. It's so wrong.'


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