UK: Pleural Plaques Under The Spotlight Again

Originally published in the Insurance Law Quarterly - Spring 2006 - Issue 62

Pleural plaques are very common effects of asbestos inhalation, detected by means of a chest scan. Their presence does not normally occasion any symptoms. However, because they indicate that permanent penetration of the lungs by asbestos fibres has definitely occurred, the individual concerned can suffer anxiety about the possible future onset of disease.

In January 2006, the Court of Appeal overturned the High Court’s judgment in the test cases of Grieves v FT Everard & Sons Ltd and others. In doing so, it overturned 20 years of legal practice, confirming that the presence of pleural plaques, which have no impact on health, is not compensatable. This decision could have significant consequences for the claims industry, although it is broadly welcomed by insurers. This is not necessarily the last word, however, as leave to appeal to the House of Lords has been granted.

Since 1985, negligently exposed employees have received damages awards on the basis of the appearance of pleural plaques. It has been estimated that if such awards are allowed to continue, the insurance industry could have to pay out up to £1.5 billion over the next 25-30 years.

The test cases of Grieves and nine others were defended on the basis that no claimant had suffered an injury sufficient to found a claim in negligence and that, in so far as there was any such injury, the level of damages was too high.

The High Court held that there was a cause of action as although pleural plaques per se did not constitute a cause of action - because they were not a disease or impairment of physical condition - anxiety caused by pleural plaques that resulted from negligent exposure to asbestos could found a cause of action. They nevertheless held that awards of damages in these cases should be lower than the levels of award that had come to be accepted. In recognition of the strong possibility that asbestos-related disease might not occur, £3,500-£4,000 was appropriate for a provisional award of general damages for asymptomatic pleural plaques; £6,000-£7,000 was appropriate as a final award. The employers appealed.

In overturning the High Court decision, the Court of Appeal noted statistics which indicate that only a small minority of those exposed to asbestos to the extent that they develop pleural plaques will actually develop an asbestos-related disease. In the case of any individual claimant, the odds are that the asbestos fibres in the lungs will remain innocuous. They did not consider that the presence of those fibres, as demonstrated by pleural plaques, is any more capable than the existence of the plaques themselves, of founding a cause of action.

The claimants argued that if pleural plaques were held not to found a cause of action, problems would arise in cases of "pleural thickening". Pleural thickening differs from pleural plaques in that its development has a physical effect, namely reduced lung capacity. The majority of the Court of Appeal accepted that its judgment may focus attention on the question of the stage at which pleural thickening gives rise to a cause of action, but considered that this is an issue which will have to be considered as and when it arises.

In a dissenting judgment, Lady Justice Smith disagreed both with the High Court’s reasoning, and with the majority in theCourt of Appeal. She would have awarded higher damages than those awarded by the High Court.

Whilst the Court of Appeal has taken us one step closer to a final verdict, clearly judicial opinion is still divided. This latest verdict will be welcomed by insurers, however the industry cannot relax just yet. There is a final hurdle to cross as leave to appeal to the House of Lords has been granted. The legal certainty that insurers seek is a step closer; however, the prospect of claims worth billions of pounds cannot yet be dismissed.

1984: Sykes v Ministry of Defence - damages awarded where pleural plaques found.

2002: Asbestos Working Party estimates potential insurance industry exposure of £1.4bn over the next 25 years.

2004: Test case launched to challenge compensation awards for pleural plaques.

2005: Grieves & Others v F T Everard (High Court)
Mr Justice Holland holds that there is a cause of action but that damages should recognise the probability that the asbestos-related disease might not materialise.

2006: Grieves & Others v F T Everard (Court of Appeal)
Majority confirms that pleural plaques that have no impact on health are not compensatable.

Next 12-18 months: House of Lords’ decision will be the final word.

As we go to press, the final appeal stage in several significant mesothelioma cases is underway.

The appeal in Barker v Saint Gobain Pipelines Plc was heard by the House of Lords in March 2006. The appeal sought denial of compensation to mesothelioma sufferers altogether, if they have ever been exposed to asbestos during a period of self-employment, even if also they were exposed to asbestos in a different period, when they were an employee. Secondly, the appeal attemps to stop full compensation being paid to mesothelioma sufferers who are unable to claim from all employers responsible for exposing them to asbestos because some of them are no longer trading and were not insured.

Murray v British Shipbuilders (Hydrodynamics) Limited and others; and Patterson v Smiths Dock Limited and others are also currently before the House of Lords, as conjoined appeals with Barker.

Murray deals with whether a defendant is held liable to compensate a claimant in respect of damage suffered by the claimant only on the basis of the modified approach to causation set out in Fairchild v Glenhaven Funeral Services Ltd (2003).

Patterson raises the issue of whether a defendant can be held liable to compensate a claimant in respect of damages suffered only on the basis of the approach in Fairchild i.e.100 per cent, or whether the defendant can be held liable for a lesser proportion of damages, for example on a time-exposed basis, which reflects the extent to which the defendant actually contributed to the risk of the claimant's damage.

Judgments from these cases are expected within the next six months.
We will cover these cases more fully in a future ILQ.

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