Insurance firm in court bid to halt payouts for asbestos victims

A LEGAL challenge in the Court of Appeal begins today which could save the insurance industry £500m on compensation to thousands of workers affected by asbestos.
Norwich Union has mounted the legal case in a bid to halt payments to sufferers of the asbestos-related condition, pleural plaques, in what could prove to be a landmark ruling.A High Court decision earlier this year left the insurance firm's initial attempt to stop compensation payments defeated. But the challenge in the Court of Appeal, expected to last the week, could overturn that decision, with ramifications for tens of thousands of sufferers.Thompsons Solicitors, legal specialists in asbestos disease cases, were involved in opposing the original High Court challenge. The legal firm is representing two of the six test cases being used as evidence against Norwich Union's legal challenge.Judith Gledhill, head of Thompsons' specialist regional asbestos team in Yorkshire, said: "The insurance industry is motivated by its need to protect profits and shareholder interests."For over 20 years the courts have accepted pleural plaques together with the increased risk of future disease and related anxiety constitutes an injury and should therefore be compensated."The majority of people who develop any type of asbestos-related disease, including pleural plaques, do so because their employers were negligent in failing to protect them from exposure to asbestos. This case is about the right of those people to continue to receive awards of compensation for the injury they have suffered."Pleural plaques are recognised as a sign of damage to the lining of the lung caused by a history of exposure to asbestos, which itself carries an increased risk of malignant disease such as the deadly cancer mesothelioma.According to insurance industry estimates, asbestos-related claims are expected to cost UK insurers up to £10bn during the next 40 years, with pleural plaques claims accounting for more than £500m.Compensation of up to £20,000 was awarded as a final payment settlement to anyone with pleural plaques, but this was reduced by approximately 50 per cent by the High Court ruling earlier this year. Thompsons Solicitors are contesting the reduction in the level of compensation.Norwich Union spokesman David Ross said: "What we are seeking is clarification from the courts for compensators paying money out to people with pleural plaques."In the vast majority of cases, people's lives are not affected by pleural plaques but they are awarded compensation because of the anxiety which the condition brings."The question is should compensation be paid to the worried well. In our view, compensation should be paid to those who are suffering from more serious conditions associated with exposure to asbestos."With an estimated 14,000 pleural plaques claims each year, these cases account for about 75 per cent of all asbestos claims, with approximately £25m in compensation being paid out by insurers.Paul Cooper has recently been awarded a Pride of York award in recognition of his work with asbestos victims from the carriage works in the city.He said: "Pleural plaques is a condition which affects many people in York, and thousands of people throughout England."It is an extremely worrying condition, and sufferers have to live with the knowledge that they have been exposed to the killer dust through no fault of their own, and are at increased risk of developing the terminal asbestos-related cancer, mesothelioma."It would be a great wrong if these sufferers were denied the legal redress they deserve from their employer's insurers."

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.'