Appeal date set to contest unfair ruling on pleural plaques
On 26 January 2006 in the case of Rothwell and Others v Chemical & Insulating Co Ltd the Court of Appeal ruled that the asbestos condition of pleural plaques does not give rise to a cause of action. This has prevented thousands of claimants from recovering compensation as a result of negligent exposure to asbestos.
Prior to the Court of Appeal decision claimants had successfully pursued cases against their employers for negligent exposure to asbestos and had recovered compensation for over 20 years.
In the judgment the Court of Appeal was split 2:1 in its decision. Two judges stated that pleural plaques do not amount to more than minimal damage and therefore do not justify legal claims. The dissenting judge, Lady Justice Smith clearly recognised that the damage caused by pleural plaques together with the risks of malignancy is more than minimal damage. She said: “For a person who has not had occupational exposure to asbestos, the lifetime risk of developing mesothelioma is as low as 1 in 10,000. For a person who has been exposed to sufficient asbestos to develop pleural plaques, the risk will typically be between 1% and 5%, depending on the dose of asbestos received. It follows that any claimant who has pleural plaques will also be at a significantly increased risk (at least one hundred fold and possibly five hundredfold) of developing mesothelioma."
Controversially, the majority in the Court of Appeal also took the decision further by denying compensation to victims who suffer with symptomless pleural thickening. Pleural thickening is a thickening of the lining of the lungs which can cause very severe restrictions on breathing.
Simpson Millar’s Emma Costin said: “As a result of the Court of Appeal’s decision, workers who have suffered ill-health as a result of negligent exposure to asbestos have been let down by the legal system. The Court of Appeal has put the interests of insurers and employers before the interests of workers. Fortunately, the decision does not affect the right of victims of asbestos disease to claim compensation through the courts for the more serious asbestos related conditions of asbestosis, mesothelioma and lung cancer.”
Leave has already been granted for the matter to go to the House of Lords. The appeal is due to be heard between 25 June 2007 and 2 July 2007.
It is important, however, for those who are diagnosed with asbestos disease, including pleural plaques and symptomless pleural thickening, to seek legal advice as soon as possible due to tight time limits in bringing a claim. Any court action must be started within three years of the date of knowledge. This is the date when a person is first told that they are suffering with an asbestos related condition. If court action is not started within this timescale a claim may be barred. The courts do have discretion to overlook the time limit in certain circumstances but this is done on a case by case basis and is difficult to achieve.