Biggart Baillie Solicitors

Asbestos Victory for Insurers and Businesses For Now!

Tuesday, October 10, 2006

by David Stevenson

On 26 January 2006 the English Court of Appeal decided in Rothwell & Others v Chemical Insulation & Others 2006 WL 63686 that symptomless asbestos related pleural plaques did not give rise to a claim for compensation.  The decision reversed the practice of the past 20 years.  As many readers will know, the decision has now been appealed to the House of Lords and they will issue a judgement on the matter at some point next year.  However for the moment it would seem that thousands of claims for compensation are being wiped off the board. 

Why no compensation?
At the hearing it was a matter of agreement between the parties that symptomless pleural plaques did not give rise to compensation.  The claimant’s argument was that there was a valid claim where an individual had pleural plaques and had anxiety and was at risk of developing a more serious asbestos related disease.  Two of the Court of Appeal Judges (Phillips and Longmore) considered that even in those circumstances pleural plaques should not be compensated.  The dissenting judgement by Lady Smith opined that they did give rise to compensation.  The majority made three main points:-

1. They confirmed that negligence is not actionable per se, but is only actionable on proof of damage.  The damage didn’t need to be substantial but had to be more than minimal and the Judges relied on two previous decisions, namely Fairchild v Glenhaven Funeral Services [2002] UKHL 22 and Cartledge v Jopling (1963) AC 758.

2. They opined that the chance of contracting another asbestos related disease at some point in the future is not enough and further emphasised that no claim can be sustained if it does not arise from some physical injury.

3. The Judges confirmed that English courts had never entertained claims for anxiety or fear of future illness, incapacity, or death.  The claimants did not suggest that they could ring a freestanding claim for anxiety.  Any anxiety had to be linked to the pleural plaques.  Therefore, if pleural plaques alone could not be compensatible, equally any anxiety as a result of plaques could not further the claim and the claim must fail.

Longmore LJ stated that the law attached particular importance to physical damage as the gateway for recovery for secondary effects of negligence.  If physical change is so insignificant that it can’t, of itself, found a claim, then should it open the door to recovery for risk of future injury or for anxiety?  Three first instance cases from the mid 1980’s (Church v The Ministry of Defence, Sykes v The Ministry of Defence and Paterson v The Ministry of Defence)  where the claimants were awarded damages for pleural plaques were distinguished on the basis that:

1. Physical damage had been caused to the lungs which could not be described as minimal;

2. That plaques amounted to a “significant and definite degree of damage” which could not be treated as minimal or negligible; and

3. If damage itself was insignificant to cause negligence they did not support a cause of action if there was a risk that it would lead to more substantial damage at a later stage.

By making this distinction, have Phillip and Longmore LJs unintentionally acknowledged that plaques can cause damage?  Without apparently going in to detail reference was made to the Scottish case of Gibson v McAndrew Wormold 1998 SLT 562.  In that case Lord MacLean commented that pleural plaques constituted an identifiable injury for which damages were recoverable.  He referred to 3 criteria which the dissenting Judge in Rothwell, Lady Smith, alluded to.  Lady Smith’s wanted maintenance of the status quo.  Perhaps her lone opinion was undermined by the medical concessions made by the claimant’s solicitors?  It will be interesting to see what the House of Lords make of that.

Achilles Heel?
The Court of Appeal dealt with quantum.  Surprisingly, Phillips and Longmore LJs adopted the approach taken by Lady Smith.  It is curious that having disagreed with her on the main issue (are pleural plaques compensatible) that the two majority Judges then went on to associate themselves with the rationale behind her approach to quantum!  Could this be an Achilles heel in the judgement?

The Scottish Perspective
Observers are not aware yet of the grounds of appeal.  There may be a cross appeal on quantum.  In Scotland, all pleural plaques cases have been sisted (stayed) pending the House of Lords’ decision.  It is likely that the House of Lords’ decision will be adopted in Scotland.  However, some pursuer’s (plaintiff) firms have made rumblings about testing the issue in a Scottish Court.  That could yet happen.  Watch this space!