Politicians like to be seen to be doing things. When there is a popular outcry that something must be done then whatever the rights and wrongs the politicians will act. It all reminds me of Jim Hacker as Prime Minister sending in the military to rescue a child’s dog from a military range. Ludicrous, overblown, unnnecessary – but done because a section of the public thinks, “Aw, puppies”. Now let no-one suggest that the SNP government does not court such popularity. Witness the new bill introduced into the Scottish Parliament on Monday.
The law of delict (tort in England) is designed to compensate people for loss they have suffered. If a woman is hit by a car, she can sue the driver in delict and claim damages for her injuries and for any loss of earnings while she is unable to work when recovering from her injuries. The damages compensate for her loss. The idea that there is loss (based on damage) is crucial to the operation of the law in the area.
Now, asbestos has caused various serious illnesses including cancer, and mesothelioma, and in seeking compensation for these injuries (if the great difficulties in relation to proving who caused the injury/exposure to asbestos can be overcome) damages are available. However, how should the law treat a symptom that is asymptomatic, that does not of itself cause cancer or asbestosis or any other disease, but which may be an indicator in years to come of an increased propensity to another illness?
When faced with this problem in relation to asbestos related pleural plaques the House of Lords refused to allow a claim. The decision was unanimous. Delict is about damage and loss. Where there is no damage there is no loss, and where there is no damage and no loss there can be no claim.
Lord Hoffman summarised the position,
“1. The 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. These are areas of fibrous thickening of the pleural membrane which surrounds the lungs. Save in very exceptional cases, they cause no symptoms. Nor do they cause other asbestos-related diseases. But they signal the presence in the lungs and pleura of asbestos fibres which may independently cause life-threatening or fatal diseases such as asbestosis or mesothelioma. In consequence, a diagnosis of pleural plaques may cause the patient to contemplate his future with anxiety or even suffer clinical depression.
“2. Proof of damage is an essential element in a claim in negligence and in my opinion the symptomless plaques are not compensatable damage. Neither do the risk of future illness or anxiety about the possibility of that risk materialising amount to damage for the purpose of creating a cause of action, although the law allows both to be taken into account in computing the loss suffered by someone who has actually suffered some compensatable physical injury and therefore has a cause of action. In the absence of such compensatable injury, however, there is no cause of action under which damages may be claimed and therefore no computation of loss in which the risk and anxiety may be taken into account. It follows that in my opinion the development of pleural plaques, whether or not associated with the risk of future disease and anxiety about the future, is not actionable injury. The same is true even if the anxiety causes a recognised psychiatric illness such as clinical depression. The right to protection against psychiatric illness is limited and does not extend to an illness which would be suffered only by an unusually vulnerable person because of apprehension that he may suffer a tortious injury. The risk of the future disease is not actionable and neither is a psychiatric illness caused by contemplation of that risk.”
Where the development of another illness caused by the exposure to asbestos (eg cancer) that exposure would be sufficient to support a claim. Where there are only pleural plaques and they do not impair the person in any way, they do not impair breathing, they do not cause pain, they have no symptoms – then what loss has the “victim” suffered? And why should the person be compensated? Taking that view the Lords rejected the claims. However, in response to the House of Lords decision, the Scottish government announced that the decision would be reversed and the law retropsectively amended. The bill implementing this policy was introduced into the Scottish Parliament on Monday – the Damages (Asbestos-related conditions) (Scotland) Bill.
Its terms are startling, Section 1 provides
(1) Asbestos-related pleural plaques are a personal injury which is not negligible.
(2) Accordingly, a person who has them may recover damages in respect of them from a person liable for causing them.
(3) Any rule of law the effect of which is that asbestos-related pleural plaques are not a personal injury or are negligible ceases to apply to the extent it has that effect.”
Section 2 then says,
“(1) For the avoidance of doubt, a condition mentioned in subsection (2) which has not caused, is not causing or is not likely to cause impairment of a person’s physical condition is a personal injury which is not negligible.
(2) Those conditions are—
(a) asbestos-related pleural thickening; and
(3) Accordingly, it is not necessary for a person seeking damages in respect of asbestosrelated pleural thickening or asbestosis to prove that it has caused, is causing or is likely to cause impairment of the person’s physical condition.”
This is startling.
A Condition which “is not causing or is not likely to cause impairment of a person’s physical condition is a personal injury which is not negligible”. So, you have no symptoms, you have no damage, you have no impairment – but YOU WILL be entitled to compensation. And section 4 (2) then goes on to provide that this rule will be deemed always to have applied. Something is done, and the public appetite is sated.
However, the something that is done is not as much as may appear. What the bill does not do is to address the question of quantum – how much someone gets for the injury? Quantum is a difficult question in delict. However, the broad rule of thumb is that the party claiming should be given damages that compensate for the losses he or she has suffered. Where that loss arises from the damage of a personal injury then the quantum is dependent on the severity of the injury and the party claiming’s “awareness of pain” both now and in the future, as well as the impact on his or her quality of life. Where the disease is asymptomatic and causes no impairment there is no “awareness of pain”, little impact on quality of life, and consequently the damages to be awarded will be minimal (whatever the government says in the explanatory notes (para 16) about compensation being about £8,000). This gesture of the government may encourage people to take legal action and to sue – with the nature of the possible pursuers (those who raise the action in Scotland, equivalent to English claimants) – costs initially borne by the legal aid fund, but any damages then recovered being set off against the legal aid costs. Or if the matter is taken on a contingency fee basis the feesto be borne by the pursuer are typically doubled following success. So, who wins from this? The pursuer will obtain appreciably less than he or she imagines (and indeed may lose it in offsetting against legal aid costs or increased fees). The defender loses court costs and such compensation as is payable. The civil courts have time eaten up on cases where no-one has an injury which is causing damage. The state bears the costs of funding some actions. Well, it looks to me that the only beneficiaries are my fellow lawyers. And I’m not sure that that’s such a good idea.
However, when confronted with the issues in the Parliament, like the nonsense on ship to ship transfers and the Scottish PArliament powers, and the nonsense on the regulations relating to assaults on Emergency Workers (where regulations were introduced to increase the maximum sentence to… the maximum sentence available under general sheriff court sentencing powers) there will ne dissent in the Parliament, because politically one cannot be seent o object. However, as with those other matters this is merely another meaningless gesture.
ETA Readers should note that the evidential material above has been questioned in a comment to this post by Mr Scott. I thank him for that, and am quite happy to accept the points he makes in the evidential issue. I have replied to him in the comments and readers are directed there.