When the House of Lords last October ended the right of those with asbestos-related pleural plaques to claim compensation from the employers who exposed them, the law lords gave solace to rich insurance companies and left thousands of asbestos victims feeling powerless and belittled.
For 20 years the courts had recognised that the combination of pleural plaques -scarring of the lining of the lung caused by asbestos fibres – along with the increased risk of cancer the scarring represents, as well as the inevitable anxiety that the victim suffers, should be compensatable.
I called on Gordon Brown at Labour’s last NEC to reverse the decision and restore the right of people with pleural plaques to receive damages. There is precedent. We reversed the potentially devastating Barker decision in 2006 which would have slashed compensation for thousands of people dying from the terminal asbestos cancer mesothelioma.
In the last six years the insurance industry has run case after case challenging the rights of victims of asbestos exposure to compensation by fighting their claims to the highest UK court.
The insurers claim all they are doing is seeking to clarify the law. Protecting shareholders’ profits more like.
Zurich Insurance ‘hailed’ the House of Lords decision on pleural plaques. Deloitte estimated that UK insurers were likely to save up to £1.4bn as a result of the judgment.
So as well as reversing the Lords’ decision by legislation, the government should force the insurers to use their savings, their windfall (don’t forget they were happy enough to collect the premiums), to set up a fund of last resort for claimants who, through no fault of their own, cannot identify an insurer where the employer has gone bust.
Thousands of asbestos victims each year are unable to claim compensation due to the lack of an effective system for tracing the insurers of the employer who negligently exposed them.
Reversing the House of Lords judgment by statute would send a clear message to the insurers (who are bringing yet another challenge – disputing what the wording of the insurance policies mean in order to avoid paying out – which is waiting to be heard in the High Court) and to asbestos victims that further legal challenges will be met with a humanitarian response from Labour.
Is there an alternative to overturning the Lords’ decision?
The right to compensation could still be restored by statute, but within defined limits.
As a minimum any statute should take the opportunity to ban or exclude claims that come from compensation ‘claims farmers’ or ‘scan vans’ (the mobile scanning units used by some claims management firms to detect pleural plaques and which the courts said were encouraging claims).
It should also preserve the right of the sufferer of pleural plaques to make a further claim if they develop a more serious asbestos-related illness (which many do).
And it should set compensation at a level equivalent to the midpoint of the Judicial Studies Board which sets guidance for damages in personal injury claims.
I struggle to see what the insurance industry could object to in these proposals for legislative change. ‘Fast and fair’ Zurich said it wanted asbestos compensation to be when it hailed the pleural plaques judgment.
But it’s not fairness the insurance industry is after. It continues in its expensive, disruptive and, for claimants, dispiriting challenges.
Labour has a chance to show it does believe in fairness; fairness for those who, through no fault of their own, were exposed to asbestos and now, as they put it in their own words, ‘have a ticking time bomb’ in their lungs.