Pleural Plaques compensation
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Pleural Plaques compensation
Exposure to asbestos can result in the development of a number of conditions, including Pleural Plaques. This condition is generally asymptomatic, though it indicates that asbestos fibres have lodged in the body and have caused a physiological reaction. There is medical evidence that people with Pleural Plaques are at higher risk of developing asbestos-related diseases.
From the 1980s onwards, where Pleural Plaques arose from negligent exposure to asbestos, Courts throughout the UK made compensation awards. Those awards were paid by the negligent party or their insurer. However, on 17th October 2007 the House of Lords unanimously ruled in Johnston v NEI International Combustion Ltd and conjoined cases, that asymptomatic Pleural Plaques do not give rise to a cause of actionable or compensatable damage.
Following the Law Lords’ decision in October 2007 that victims of Pleural Plaques should no longer be compensated, UCATT commenced a national campaign to highlight this injustice and to seek to overturn the Law Lords’ decision. UCATT has pushed harder than any other group on this issue, and the printing and distribution of 100,000 pre-paid postcards all addressed to the then Justice Secretary Jack Straw calling for justice was unprecedented.
The previous Government then carried out a public consultation on the matter. Despite the overwhelming request from trade unions and other groups for compensation, the Government decided to introduce a limited no fault payment scheme in England and Wales. The scheme, administered by the Ministry of Justice, ran from August 2010 to August 2011 and was only open to people who had commenced, but not settled, a claim prior to 17 October 2007 (the date of the ruling in the Johnston case). This means that only a fraction of Pleural Plaques sufferers received compensation through that scheme. Furthermore, much to UCATT’s opposition, the state paid off the insurance industry’s liability. UCATT continues to campaign for an overturning of the Law Lords’ decision on Pleural Plaques for England and Wales. Unlike in England and Wales, the issue of Pleural Plaques compensation has come to a positive end in Scotland and Northern Ireland.
While the 2007 House of Lords ruling was not binding in Scotland, it would have been considered highly persuasive by Scottish Courts. Therefore, in November 2007 the Scottish Government announced its intention to bring forward legislation to ensure that the House of Lords ruling would not have effect in Scotland. In June 2008, the Scottish Government introduced the Damages (Asbestos-related Conditions) (Scotland) Bill. The Bill was passed in March 2009, got Royal Assent in April, and came fully into force in June 2009. The Act was passed with overwhelming support in the Scottish Parliament.
The Act was then subject to a lengthy legal challenge by a group of insurers, who sought to challenge it by way of judicial review. The insurers’ petition was dismissed by the Scottish Outer House of the Court of Session and, on appeal, by the Inner House of the Court of Session. The insurers then appealed to the UK Supreme Court. The insurers' appeal was finally thrown out on 12th October 2011, when the Supreme Court decided to dismiss the legal challenge. The Supreme Court judges decided unanimously that the Scottish Parliament had acted within the scope of its powers when it passed the Damages (Asbestos-related Conditions) Act in 2009. Following the Supreme Court's decision, insurers were asked to settle the stalled claims.
Since the re-introduction of the possibility to claim for Pleural Plaques, UCATT’s solicitors in Scotland have been working hard to secure compensation in as many of these cases as possible, with some considerable success.
Members should however be aware that there are a number of difficult hurdles to overcome in all occupational disease claims, including Pleural Plaques. Most importantly, a claimant has three years from the date on which he has received some form of medical diagnosis of the occupational condition in question, in which to raise court proceedings against the company or companies believed to be responsible for the illness or condition. If a court action is not raised within the strict three year period, it will be time-barred and it will be virtually impossible to proceed with the claim. The three year period can sometimes begin even earlier than the date of a formal doctor’s diagnosis, if e.g. the claimant has known about the symptoms for months or years but has failed to seek any medical advice. Lawmakers in Scotland have plans to extend the three year time-bar for personal injury claims to five years, in the meantime however the time limit remains in place.
As in Scotland, compensation was reinstated at the end of 2011 in Northern Ireland, also following some legal disputes and challenges. The Damages (Asbestos-related Conditions) Act (Northern Ireland) 2011 came into operation on 14 December 2011. The Northern Ireland Act reverses the Law Lords’ decision from 2007, which had ruled out the possibility of a claim for asymptomatic asbestos-related Pleural Plaques.
The 2011 Act specifically provides that asymptomatic asbestos-related Pleural Plaques and certain other asbestos-related conditions constitute actionable personal injury. This means that since 14 December 2011, people in Northern Ireland have been able to claim compensation in respect of those conditions.
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