In the first week of December, the Ministry of Justice confirmed that mesothelioma sufferers will be exempt from having to pay 25 per cent towards legal costs following a successful claim. However, pleural plaques, as well as other asbestosis diseases, remain excluded from the Diffuse Mesothelioma Payment Scheme (DMPS) for those individuals who wish to seek asbestos compensation.
Yet the exclusion of pleural plaques only applies to those sufferers residing in England and Wales. While the terms of DMPS still apply in both Scotland and Northern Ireland (NI), breakthroughs have already been made in these two countries. Legislation came into force in Scotland and NI in 2009 and 2011 respectively, which reversed the House of Lords decision of 2007, preventing individuals diagnosed with the “benign” condition from entering an asbestosis claim.
“Indicators” of exposure to asbestos
Pleural plaques – the fibrous thickening and scarring of the inner surface of the lung linings (pleura) – are known “indicators” of exposure to asbestos. The elasticity and ability of the lung to function is reduced by the action of thickening, producing symptoms such as shortness of breath, feeling of tightness across the chest and general chest pains.
While not considered harmful in themselves, being neither cancerous nor tumour forming, pleural plaques are almost always present in patients with asbestos-related disease and often in patients suffering with mesothelioma.
Even low-dose and irregular exposure can still cause pleural plaques to form. Evidence collected in France over a seven year period from initial tests in 2003/5 suggests that the presence of pleural plaques may also be a separate “risk factor” for the development of pleural mesothelioma. Around a half of all those who are exposed to asbestos will develop pleural plaques.
Condition not adequately understood
With the Health and Executive recently reporting an average of 340 new pleural thickening cases each year – more than any time in the previous 20 years – many sufferers of pleural plaques have consistently felt their condition has been not adequately understood by the law makers.
In October 2007, the Ministry of Justice upheld a Law Lords ruling in a Court Of Appeal decision, which said that while pleural plaques clearly shows exposure to asbestos, they are not asbestosis symptoms or harmful in themselves, and therefore, not grounds for the awarding of damages compensation under the civil law.
In June 2008, the Secretary of State for Work and Pensions asked the Industrial Injuries Advisory Council to consider the current prevalence, likelihood of disability and other more severe complications arising from those with pleural plaques. Importantly, the department also wanted to know whether compensation through the Industrial Injuries Scheme would be appropriate for people diagnosed with the condition.
From August 2011, a one year “no-fault” scheme was introduced in England and Wales by the Ministry of Justice. Under the scheme, a very limited number of applications for one-off payments of £5,000 were to be made, but only to those individuals who had already begun, but not resolved, a legal claim for pleural plaques compensation prior to October 2007. In addition, if a pleural plaques sufferer had died, then claims by executors and next of kin would not be eligible.
Reversal in Scotland and Northern Ireland
Meanwhile, the local parliaments of Scotland and Northern Ireland passed the Damages (Asbestos Related Conditions) Act (NI) 2011, which was the first reversal of the House of Lords ruling, which would now allow damages for personal injuries to be made for pleural plaques.
The Scottish Government had already passed the Damages Act in 2009, which opposed the House of Lords ruling two years earlier. Despite insurance companies arguing that the Scottish Act “broke the European Convention on Human Rights”, the Supreme Court justices in London dismissed a further appeal by several insurers, ruling that it could not be said that the “judgment of the Scottish Parliament was without reasonable foundation.”
As a result, the NI law courts were able to award damages to a victim of pleural plaques for the “stress and anxiety” caused by knowledge of having a potentially harmful asbestos condition.
Today, those individuals suffering with pleural plaques In England and Wales still await recognition of their condition by a review of the current law, which will allow a better quality of life to be led in the time remaining.
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