Pleural plaques
By Jim Kerr
On 12th November 2004 a multi party action of 10 linked cases was heard in the High Court. Insurance companies argued that victims of asbestos exposure who suffered from pleural plaques should not receive compensation as they had no physical injury.
Two main issues were dealt with:
- whether pleural plaques amounted to an actionable injury; and
- if so, whether the level of damages was too high.
Judgement has now been handed down by His Honour Judge Holland in favour of the victims although the level of damages that can be recovered has been reduced.
Holland J. stated that pleural plaques per se do not found a cause of action. They are not a “disease” or an “impairment of a physical condition”. In themselves they are not actionable but they do provide the basis for an award for anxiety and risk of injury.
It is an important decision because it reaffirms the law as it stands in that pleural plaques are a compensatable injury. The employer’s insurers sought to argue that pleural plaques are medically irrelevant because they do not give rise to symptoms or the risk of other asbestos related disease. They said that pleural plaques are merely markers of exposure to asbestos. Ultimately they argued that the victims had suffered no significant injury.
It was the claimant’s case that pleural plaques represent an irreversible change to the structure of the lungs; that the condition is a recognised disease which in very rare cases causes respiratory problems; and the physiological damage and psychological anxiety were sufficient to cause a significant injury.
Pleural plaques are a type of scar tissue which in themselves are not harmful. In the significant majority of cases they produce no physical symptoms. However knowledge of their presence may cause anxiety about the risk of malignancy in the future because the plaques are caused by exposure to asbestos dust.
Pleural plaques represent a marker to indicate that a victim has been exposed to asbestos. It is usual to settle these case on a Provisional damages basis. This means that should the victim develop one of the more serious asbestos related diseases in the future then they can come back to court for a ‘full and final settlement. This settlement would be bases on the seriousness of the disease. Provisional damages, because of their nature, are generally low. However an important outcome of this case is that the judge provided for new guidelines for quantum and set these lower than has previously been awarded. The judge concluded that final awards had previously also been set too high. He set the bracket for provisional damages to be £3,500 to £4,000 and for final awards to be from £6,000 to £7,000. This is about 40% lower than the level previously set.
The implications are wide ranging but it is difficult to predict at the moment the full impact or consequences. The final outcome of the litigation is uncertain and the insurers are currently considering whether or not they wish tosubmit an appeal against the decision. Having achieved a reduction in likely future awards they may however be satisfied with the overall result.
The “asbestos epidemic”, as it has become known, could affect 1% of men in the population.
If you have been exposed to asbestos and are concerned you should still seek legal advice. At MWR we have a specialist team dealing with such cases and are happy to advise.
For further information please contact Jim Kerr at MWR Solicitors on 0800 731 0717 or at jim.kerr@mwrlaw.com
