Compensation Bill [Lords]

Having been foreshadowed by the hon. Member for North-East Hertfordshire (Mr. Heald), I remind the House that I have been a personal injury lawyer for many years—indeed, for rather longer than he indicated. I retain a practising certificate and am a consultant to my law firm, although I do not practise. I am also a member of the Association of Personal Injury Lawyers. I congratulate the Government on new clause 13. It is a realistic response to an urgent problem and the hon. Gentleman was somewhat churlish about it. No matter who appealed the case, sooner or later, given the aggressive approach that the insurance industry is increasingly adopting towards personal injury cases, someone—an insurance company—would have taken it to the House of Lords. It is serendipitous that the decision taken in the House of Lords happened when there was still sufficient space to decide what should be done and to let the Government table amendments today to put matters right in the Bill. Had that not been the case, it might have been a long time before an opportunity arose to put right the problems created by the Barker judgment. On the same serendipitous note, and for similar reasons, I hope that the Minister might think again on my new clause about pleural plaques. The hon. Member for North-East Hertfordshire keeps going on about legal costs. The answer on that is in the hands of the insurance industry. If it does not fight cases so aggressively and admits liability where appropriate in good time, legal costs do not mount up. Frankly, in most asbestos cases, the legal costs are not the huge proportion that he seemed to suggest of the £150,000 awarded in mesothelioma cases. I suggested many years ago, and it is even more relevant now, that we should set up a register of employers’ liability insurance, so that if a company goes broke or ceases to trade, or if an insurance company ceases to trade, there is a record for 10, 15 or 20 years later of who carried insurance risks at a particular time. That would be a helpful way forward. I shall talk about my two new clauses. New clause 7, as my hon. Friend the Minister anticipated, is about pleural plaques. She referred to the fact that the half-dozen test cases known as the pleural plaques cases are going to the House of Lords and questioned whether my new clause was framed in rather general terms that could incorporate other situations. It is indeed a general amendment; I would like to try to anticipate what may happen in future. However, it is primarily focused on pleural plaques and I cannot think of any other case at present that it would incorporate, and nor, I think, can anyone else. There has been a problem on pleural plaques only for the past few months. For 20 years, the principle of compensating for the injury of pleural plaques has been well established in the courts. Compensation, until one particular case came up in the Court of Appeal, was usually in the region of £6,000 to £7,000, linked to provisional damages. Provisional damages are important in this respect for reasons I shall come to later. In the pleural plaques case—sometimes known as Grieves, sometimes as Rothwell—the six claimants were all negligently exposed by the defendant employer to asbestos dust. That exposure had three foreseeable consequences. The claimants developed pleural plaques; they are at risk of developing one or more long-term asbestos-related disease; and they are at risk of developing anxiety. In fact, Mr. Grieves developed a recognised psychiatric injury. Generally speaking, the view developed in the courts up until that case was that aggregating the three elements meant that sufficient damage to found a cause of action could be established. The Court of Appeal, in a majority decision, decided that that was not so and that the three had to be looked at disjointedly. In those circumstances, compensation would not follow. I prefer the dissenting judgment of Lady Justice Smith, who took the round approach adopted in the courts for the previous 20 years, when the question was simply a question of fact to be determined in the individual case. This issue is important. In the judgment of the Court of Appeal, the word ““policy”” appears in the words of the Lord Chief Justice. Policy, in my view, is a matter for this House as much as, if not more than, one for the courts. It is for this House to decide whether people who suffer from pleural plaques ought to be compensated, as they have been for the past 20 years. The Lord Chief Justice said that it was important that claims be brought within reasonable time, and I agree. He said litigation should be finite, and I agree with that, too. My concern is that the very fact of bringing a claim for pleural plaques means that liability is determined in relation to the claimant’s exposure to asbestos in a timely fashion, early on when the diagnosis of pleural plaques was made. If, 10 or 15 years later, the victim happens to contract one of the more serious diseases—asbestosis or mesothelioma—the issues of liability have already been determined and decided through an award of provisional damages and the victim can come back to the court quickly, if the case cannot be settled, to obtain the compensation needed for the substantial sum. That is why the question of pleural plaques is important when one is considering timely consideration. We need to look at the effect on the victim, too. In the Grieves case, the victim developed a recognised psychiatric injury but, because the Court of Appeal had concluded that pleural plaques was in itself insufficiently significant, he could not claim for the psychiatric injury because, as we know from other precedents, it has to be linked to a physical injury in the first place.