Pleural Plaques is Not an Actionable Injury

Personal Injury occurs when a person has suffered some form of injury, either physical or psychological, as the result of an accident or medical malpractice.

Tort law usually provides people with the rights to compensation when another person harms their legally protected interests.

Asbestos is the name given to a group of naturally occurring minerals which were manufactured into insulation materials frequently used in power stations, construction, shipbuilding and various other industries. Asbestos products were used widely throughout most of the last century because it was non-flammable, flexible, virtually indestructible and low heat-conducting. It was perfect for use as insulation, brake linings, cement and fire-proofing. Although asbestos was very useful, it was also known to cause lung disease. Asbestos is made up of microscopic fibres which can be inhaled into the lungs. Diseases caused by inhaling asbestos fibres can take between 15 to 50 years or more to occur. There are different types of asbestos related conditions and they each vary with each other. The conditions include pleural plaques, pleural thickening, mesothelioma, lung cancer and asbestosis

Pleural plaques are areas of fibrous thickening of the pleural membrane which surrounds the lungs. They can be detected by X-rays and CT scans. They normally cause no symptoms and do not cause other asbestos-related diseases but they do indicate the presence in the lungs of asbestos fibres which may, independently of the pleural plaques, cause life-threatening diseases such as asbestosis or mesothelioma.

In the past it was possible for people suffering from pleural plaques to recover compensation. A recent test case in the House of Lords decided that compensation can no longer be awarded for pleural plaques.

Source taken from http://en.wikipedia.org

Grieves V. F.T. Everard & Sons Ltd and another

In this case the main question is whether someone who has been negligently exposed to asbestos in the course of his employment can sue his employer for damages on the ground that he has developed pleural plaques.

Facts of the case:

The claimants alleged that the employers had negligently exposed them to asbestos dust due to which they had developed pleural plaques and a risk of developing asbestos-related diseases and also suffered anxiety. Among the claimants one had a diagnosis of pleural plaque due to which he got depressive illness. The House of Lord dismissed the appeals of the claimants by saying that the plaques would never cause any symptoms and did not increase the susceptibility of the complainants to other diseases or shorten their expectation of life. They had no effect upon their health at all. Neither the risk of future disease nor anxiety about the possibility of that risk amounted to damage for the purpose of creating a cause of action.

Judgement of The House of Lord’s

According to Lord Hoffman the proof of damage is an essential element whenever there is a claim of negligence and the plaques which are symptomless are not compensable damage. He further pointed out that in the absence of compensatable injury, there was no cause of action under which damages might be claimed and therefore no compensation of loss in which the risk of future illness and anxiety might be taken into account. It followed therefore that the development of pleural plaques, whether or not associated with the risk of future disease and anxiety about the future, was not actionable injury.

http://www.thompsons.law.co.uk

According to Lord Hope no action lies for a wrong which has not

resulted in some element of loss, injury or damage. Therefore, the pleural plaques did not amount to an injury or a disease which is actionable. He further said that it is a claim which has no value at all.

According to Lord Scott a symptomatic pleural plaques do not constitute damage and the law of tort is not concerned with it.

According to Lord Rodger the plaques are not an actionable injury and the law treats them as a condition that is not serious enough to require its intervention.

According to Lord Mance the pleural plaques did not by themselves constitute or involve injury and damage sufficient to enable an action to lie in tort. He distinguished Mr.Grieves case from that of Simmons v British Steel Plc in which the claimant had relied on Page v Smith and obtained compensation for a psychiatric condition which developed over time from anger resulting from an accident in which he had suffered physical injury.

Concluding Thoughts

According to torts when there is any personal injury action which is based on negligence or breach of statutory duty then in that case the claimant who is claiming for the damages must prove the breach of the duty owned by the defendant which has caused damage to the claimant. In other words the burden of proof lies on the claimant.

In Mr. Grieves case he had not merely suffered anxiety as a consequence of knowing he had pleural plaques. He had suffered a recognised psychiatric illness, namely clinical depression which had resulted in irritable bowel syndrome. This could be actionable independently of claiming for the

http://www.lkaz.demon.co.uk

plaques, so he did not need to invoke the aggregation theory, but he did need to establish that his employers were under a duty of care in respect of the illness he suffered. There were two possible bases on which his claim for damages for psychiatric injury might be lodged. Mr. Grieves could either claim that his employers owed him a separate duty specifically related to psychiatric injury; or he could claim that this damage flowed from the undoubted breach of their duty of care when they exposed him to asbestos dust.

The claimants argument was based upon the common law rule that if a claimant had suffered actionable personal injury as a result of the defendant’s breach of duty, he had to claim damages in the same action for all the damage which he had suffered or would suffer in consequence of that breach.The principle of distributive justice would be against extending damages to those who have no identifiable injury. The claimants must wait when actual injury occurs. The costs of pursuing these claims are disproportionate to the amounts recoverable.

In England the possibility of going back to 19th-century origins and pursuing employer’s liability claims in contract rather than tort has been mooted from time to time over the past 50 years but a claim based on the implied duty of reasonable care has never been taken to a full hearing and it can be suggested that if such a claim were heard it would by its nature fall back into the framework of negligence as developed in tort. All claims for personal injury, whether founded in contract or tort is covered by s.11 of the Limitation Act 1980.It is likely that neither pleural plaques nor anxiety would be regarded in contract as causing actionable damage, although depression, if it resulted in loss of employment might be regarded as

sufficient economic loss to warrant compensation; but if damages were to be obtained they would be likely to be for only a small amount. Nevertheless it could be helpful to rely on s.32A to obtain a small award of provisional damages and retaining the possibility of claiming substantial damages if an asbestos-related disease subsequently developed. However, any claimant for personal injury manifesting itself, as is frequently the situation with asbestos-related diseases, so long after exposure to the harmful substance, will be likely, whatever the basis of the claim, to have problems identifying a suitably insured defendant to whom liability can be attached.

Shortly after the Rothwell verdict was issued, the Scottish Cabinet announced plans to introduce a bill in the Scottish Parliament to reinstate the rights of plaques sufferers to pursue actions for damages. The families of mesothelioma victims in Scotland receive larger compensation for bereavement than those in England or Wales. It is an actionable injury in Scotland. In July 2008 in England there was an establishment of new schemes.

The concept of actionable damage

Some causes of action arise without proof of damage. Trespass and breach of contract are examples. Proof of the trespass or breach of contract is enough to found a cause of action. If no actual damage is proved, the claimant is entitled to nominal damages. But a claim in tort based on negligence is incomplete without proof of damage. Damage in this sense is an abstract concept of being worse off, physically or economically, so that compensation is an appropriate remedy. It does not mean simply a physical change, which is consistent with making one better, as in the case of a successful operation, or with being neutral, having no perceptible effect upon one’s health or capability.

Single Action Rule

The single action rule is very old and for the protection of defendants. A defendant should not have to answer more than once for the consequences of the same act. The main aim of this rule is that if a claimant does have a cause of action than he may recover damages for the risk that he may suffer further injuries in consequence of the same act of negligence and such type of risk would not amount to be actionable. A complainant can rely upon this rule to sue in circumstances in which he does not have a cause of action in the first place.

Section 32A of the Supreme Court Act 1981 was enacted to deal with the problems arising from the rule which required a claimant to sue in respect of all the risks of personal injuries consequential from a wrongful act. Section

http://www.publications.parliament.uk

32A did not change the underlying law of personal injury actions in respect of the recoverability of damages for the risk of future consequences. The section permitted a procedural change allowing the issue of damages to be calculated at different times, but it did not lay down a new approach to what counts as minimum actionable damage.

The Earlier Rulings

In the 1980s the actionability of pleural plaques was considered in three decisions at first instance. In all three cases the judges found in favour of the plaintiffs. But their reasoning was not altogether consistent.

In Church v Ministry of Defence Pain J. held that damage was caused by the asbestos passing through the lungs and causing the plaques to form and the plaques themselves caused damage that was not so minor that the law should disregard it. Further, he thought that it was possible that the plaques would extend, resulting in constriction of the lungs and breathlessness.

In Sykes v Ministry of Defence Otton J. held there had been a definite change in the structure of the pleura and this was sufficient to constitute actionable damage. As this gave the claimant cause of action the risk of other diseases occurring could be taken into account and he awarded a global sum for the three elements of physical damage, anxiety and the risks of further complications.

In Patterson v Ministry of Defence Simon Brown J. did not accept that a symptom free change such as a plaque was an actionable injury. His reasoning was based upon a theory of aggregation. The proposition was that a physiological change which is not compensatable damage can be aggregated with risk and anxiety (neither of which would by themselves give rise to a cause of action) to create a cause of action.

In all the above cases it was held that pleural plaques are actionable injuries.

Current legal situation for claiming compensation

On 25 February 2010 the government stated that it will not overturn the October 2007 House of Lords ruling regarding pleural plaques compensation claims. They have however said that if new medical or other significant evidence were to emerge, the government would reassess this situation.

On 9 July 2008, the government published a consultation paper on pleural plaques. The consultation paper considered the issue as to whether changing the law of negligence would or would not be appropriate. One proposal which the government does however seem to be quite committed to is the need to improve understanding and raise awareness of the nature of this illness.

The government invited comments and views from all interested parties in relation to its various proposals by 1 October 2008.

On 25 February 2010 – The Government made its decision not to overturn the Oct 2007 House of Lords ruling

On 21 July 2009 – The Government deferred make a decision on compensation for pleural plaques suffers until after the summer recess

On 25 April 2009 – Following the 2nd reading of the Bill in the House of Commons it has now been passed to a committee of cross-party MPs to examine in detail and propose any amendments

On 24 April 2009 – The Damages (Asbestos-Related Conditions) Bill received its second reading in the House of Commons

Case law – On 17 October 2007, the House of Lords rejected the claims of innocent victims of asbestos who received a pleural plaques diagnosis. They rejected the claims on the basis that they had not suffered a “compensatable injury”.

http://www.simpsonmillar.co.uk

CONCLUSION

A person who developed pleural plaques as a result of having been negligently exposed to asbestos in the course of his employment could not sue his employers for negligence. Pleural plaques, a fibrous thickening of the pleural membrane which surrounded the lungs, did not constitute actionable damage because, save in very exceptional cases, they were symptomless and did not themselves cause other asbestos-related diseases.

For about 20 years pleural plaques have been regarded as actionable. Courts have awarded damages for them. Employers and their insurers have settled many claims for damages for them. The law of negligence does not compensate for every kind of detriment caused by injury. It must pass a threshold of seriousness. There is no wrong in negligence unless there is actionable damage.

In the concluding lines it can be said that there are three elements without which there will be no cause of action for damages for personal injuries caused by a defendant’s negligence or breach of statutory duty. There must be (1) a negligent act or breach of statutory duty by the defendant, which (2) causes an injury to the claimant’s body and (3) the claimant must suffer material damage as a result. The foreseeable event was that Mr. Grieves would contract an asbestos-related disease. If that event occurred, it could no doubt cause psychiatric as well as physical injury. But the event had not occurred. In the 20th century, asbestos defendants used every means, both fair and foul, to avoid paying asbestos-related claims. In the 21st century, their insurers have taken up this challenge and embarked on a series of high profile legal actions to curtail payments to asbestos plaintiffs.