Battlefront of the deadly dust

Sunday November 13, 2005
A landmark test case will appear in the Court of Appeal tomorrow in which the insurance industry, on behalf of employers, will argue that a potentially fatal condition caused by exposure to asbestos should not be compensated.
As many as 100,000 people in the UK diagnosed as having pleural plaques - internal scarring on the lining of the lung that indicate exposure to asbestos - will be awaiting the verdict.
When Maurice Haycock came home from work he would be covered from head to foot in a chalk-white powder. 'You literally couldn't see anything of him,' says his ex-wife, Eileen Chalmers, from Solihull. 'It was everywhere - his eyes, his mouth and even his hair would be matted with the stuff.'
In the late 1960s Maurice was a fitter for Birmingham-based building company FGF, installing heating and ventilation systems. At the time, Eileen never gave the dust a second thought.
However, she has since learnt that what she regarded as harmless was the killer asbestos and nine years ago it claimed the life of her husband. He died of mesothelioma, the invariably terminal cancer of the lining of the lungs caused by asbestos.
This time last year Eileen was devastated to discover that she too has been harmed. 'When he came in from work I'd make him undress in the kitchen, standing by our old twin tub washing machine, and I'd throw in all his work clothes,' she recalls. 'There was so much dust that I would have to sweep it up with a brush and dustpan. Sometimes I would go into the garden, shake out his clothes and end up covered in the stuff.'
This time last year she was diagnosed as having pleural plaques on her lungs. In tomorrow's case the insurance industry will argue that the condition has no symptoms and, consequently, should not be compensated.
'It makes me angry for my ex-husband, because he was a hard-working man, a perfectionist in his job, and deserved a better life. His second wife and my son, Ian, had to watch him die and it was terrible,' she says.
Eileen is frightened about developing mesothelioma herself and is also concerned that Ian, now 38, has been harmed. He has been examined by a chest physician but, fortunately, there appears to be no sign of exposure.
Dominic Clayden, head of technical claims at Norwich Union, which is fighting this week's appeal, says that the challenge is about whether the 'worried well' should receive compensation.
'The medical evidence is agreed that pleural plaques are totally asymptomatic and people with them, apart from a very small minority, have no physical awareness,' he says. 'The best medical evidence is that they are totally inert and will not develop into asbestos-related conditions.'
Norwich Union also argues that the challenge addresses an important point of legal principle. 'There is a risk that by compensating anxiety in this case, it may apply to other issues, from mobile phones to GM crops,' Clayton argues.
Aside from points of principle, insurers don't want to have to pick up the bill. Clayden claims there could be as many as 100,000 such cases in the UK. He adds that in the US, where asbestos compensation actions have wreaked havoc on the economy, 90 per cent of claims relate to pleural plaques.
Earlier this year Norwich Union plus the insurer Zurich together with the Department of Trade and Industry (on behalf of British shipbuilders) failed to persuade Mr Justice Holland in the High Court in Manchester to rule such claims non-compensatable.
While the insurers failed to land the knockout blow, they did succeed in slashing the full and final damages to between £5,000 and £7,000 rather than the £12,500 and £20,000 received previously.
Compensation law in these cases was decided more than 20 years ago, reckons Ian McFall, head of asbestos litigation at the trade union law firm Thompsons, which is advising Eileen Chalmers.
'It's always been held that there needs to be a combination of three factors,' he says. 'First, there has to be irreversible structural damage to the lining of the lung; together with the increased risk of a malignant disease; plus the resulting anxiety. Those factors, when taken together, amount to an injury worthy of compensation.'
Thompsons, and the other lawyers, will be arguing that damages should be restored to their pre-February levels. 'The objective behind the insurer's appeal is to save the insurance industry money,' McFall adds.
'Maurice died because he breathed in this stuff day in day out, and my lungs are scarred because 30 years ago I washed his clothes,' says Eileen. 'Someone owes it to us to accept responsibility.'