The art of the meaningless political gesture – a Scottish example

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
(b) asbestosis.

(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.

About loveandgarbage

I watch the telly and read when not doing law stuff and plugging my decade and a half old unwatched Edinburgh fringe show.
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10 Responses to The art of the meaningless political gesture – a Scottish example

  1. surliminal says:

    Interesting. I know the senior civil servant who works on such things in a welfare context in Whitehall. Shall I pass this on??

    • So far as I am aware the UK government decided to do nothing – probably because the Lords decision effectively puts the kibosh on claims having any value. The Scottish decision is pure gesture politics. There is a large asbestos related lobby in the west coast (not fertile SNP territory generally). The lobby is one I generally support (some of the causation decisions seemed deliberately to render claims impossible and did the legal system no favours – that was subsequently reversed by legislation). However, this is not about proof, it’s about illness and damage. And where the plaques are asymptomatic the Lords say there can be no claim (although they imply that if breating is impaired &c (which tends to show that more serious consequences are likely) then this is damage that can be compensated.

  2. gominokouhai says:

    Wouldn’t there be a tangible monetary impact on life insurance premiums, if nothing else?

    • Possibly, but the evidence is that there is no direct correlation between the existence of pleural plaques and the development of asbestos related illnesses. Indeed one study indicated there was no increase in risk, and another was criticised for failing to filter smoking into the sample. It’s a tricky area and I’m not sure how insurers would play it.

    • The comment from Mr Scott below clarifies matters on the increase in risk. This may be relevant to your question.

      • gominokouhai says:

        In your OP you quote Lord Hoffman: 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. I submit that that’s all the excuse an insurance company would need to avoid paying out, whether any subsequent problems actually develop or not.

  3. Anonymous says:

    Asbestos compensation
    Dear Loveandgarbage,
    I’m an admirer of your usually cogent analysis and a frequest visitor to your blog. I don’t always agree with your insights but have to admit that they are usually pertinent. However you have departed from your area of expertise when you state that there is no, or conflicting evidence, on whether pleural plaques “cause ” cancer. See this site for example –
    The plaques themselves are simply part of the body’s defence reaction to harmful material in the lungs and therefore as you state they cannot “cause” lung cancer. However the presence of asbestos in the lungs, which pleural plaques confirm, is known to increase the risk of developing lung cancer by a factor of up to 10 (above that of a person who has not been so exposed). There is little serious debate about this amongst health professionals – other than those retained by asbestos manufacturers, building companies and their insurers. of course. I’d say that a risk of factor of times 10 is a considerable increase in risk and very likely to cause severe worry to aging ex-building workers and their families.
    However when you factor smoking into the equation the risk factor increases not arithmetically but geometrically. Smokers are at roughly 6 or 7 times the risk of developing lung cancer as non-smokers. But the risk for a smoker, or even for an ex-smoker, exposed to asbestos increases to 50 – 100 times higher than for a non-smoker who does not have asbestos in their lungs. That makes the development of cancer a near certainty for smokers who have been exposed to asbestos by negligent employers. I’d say that that level of risk and worry should be worthy of compensation so I’m a 100% behind the SNP Government on this.
    My father died last year of metastatic lung cancer which went mis-diagnosed as a trapped nerve in his shoulder until he was admitted to the Western General Hospital in September. After going through agonies of pain he was dead a week later aged 72. He’d given up smoking 8 years before but that was too late to save him. If you’re telling me that our family’s loss of a much loved husband, father and grandfather and the agonies of his death were worth nothing – for according to his GPs he was largely asymptomatic and of course, in law, we would have to prove that it was the asbestos and not the smoking that caused his death – then you merely confirm that lawyers like yourself know the cost of everything and the value of nothing.
    Bill Scott

    • Re: Asbestos compensation
      Dear Mr Scott
      Thank you for your comment, and for your kind comments on my blog posts generally.
      May I offer condolences on your bereavement. Having lost my grandfather to lung cancer the year of the Lockerbie disaster and watched him fail badly over his months I have every sympathy for your distress. (I have blogged about this before if you can forgive the specifics) I am sorry that my post on this topic upset you.
      My information in relation to this blog post came from the material used by the court in the pleural plaques case. As this is inaccurate on the evidential issue please accept my apologies. I have added a reference in the main post asking people to read your comment.
      I asm not unsympathetic to the general agenda on the asbestos related cases (as a fan of Jim Kelman I couldn’t be). For example, the causation issue in the asbestos related delict cases in one I have found problematic since my days as a law student (nearly two decades ago). You will see above that I replied to one comment yesterday noting that in my view the court decisions on causation almost deliberately rendered claims impossible. This was because such was the sector people worked in, they may have changed employer two or three times. The courts required the employee to prove which employer’s asbestos caused the injury – to my mind a ridiculous approach that brought the law into disrepute. Thankfully, some aspects of these cases were overturned by legislation.
      Given your comment I fully take your point about the desirability of compensation in this type of case. The difficulty is that even though the legislation says the risk is compensatable how will damages be quantified? On this, the bill introduced by the SNP is silent. This is the reason I suggest in my penultimate paragraph that the legislation is not all that it seems (written before your comment, but I do not think changed by fully accepting your point that there is an increased risk here) because there is a House of Lords case saying there is no damage – and this decision, while overturned on the issue of there being a personal injury is not overturned on other aspects and – it seems to me – will necessarily have an influence on subsequent calculations of damages.
      As there is no pain or suffering resulting from the pleural plaques of themselves legislation to say this is a compensatable injury merely leaves the quantification to the courts. If these are asymptomatic with no pain and no suffering (but only the appreciable stress that is caused) the court is left having to compensate for an increased risk. The difficulty for the court in such cases is putting a value on such a risk. The nature of a risk is that it may not amount to anything. In delict generally, the court cannot and will not put values on these risks unless it amounts to something.
      My suggestion is that the putting forward of the legislation appears to redress a problem and may give hope to those affected – while actually meaning that (given the bill says nothing on the amount of damages and consequently leaves the Lords general observations untouched on this) little compensation is actually payable. Further, given the backgrounds of those likely to be affected claims will often be based on the grant of legal aid, or contingency fee agreements – which may serve to negate such as compensation as is awarded.
      For the bill to be meaningful I think that something must be said or done in relation to the quantification of compensation. Failure to do that means that the bill appears to be doing something, while actually it’s potentially not benefiting (or not benefiting as much as is presented in the media reports on this) the people that are directly affected.
      I hope that clarifies my thoughts here, and thanks again for your comment – and my apologies again for the errors in the original post.
      Best wishes

  4. Anonymous says:

    Pleural Plaques
    Dear Scott,
    I take your point. I agree with you that it would be better for the Government to put a figure on the compensation available for a pleural plaques diagnosis. The most important thing to me is that the employers who negligently exposed their workforces to asbestos should not walk away “scot-free”. Nothing will bring my father back. The only compensation available to people like myself is not monetary but the thought that we might make the possiblity of a loved one’s premature death less probable for other families in the future.
    All the best,

  5. Re: pleural plaques bill in Scotland
    That may be the case (was it unanimous? the Court of Appeal was split on my reading, but that was some time ago) but have a look at Lord Hope’s speech (where he explicitly refers to Lord Phillips in the Court of Appeal decision [2006] ICR at para 43). See, for example, para 49 and ask yourself if you believe that such statements will not be use in any litigation on the issue. HOw would the Lords react to any legislation here. The question of quantum was not argued in the Lords so remains open for debate – and must be read against the observations on actionable harm and the principle de minimis non curat lex. The Lords approach was solely to consider the question of actionable damage – because this was the preliminary question (the most cost effective way to deal with the case). And solely to consider this in delict – taking into account the development of the law of contract (in an employment context) highlighted by Mathew (not MAtthew as Lord Hope refers to him) Boyle in his JR piece.
    A figure could be reached, but the steer of the Lords means that quantification could be looked at again – and don’t think that employers/insurers won’t do that. Some guidance on quantum from the Scottish government in the bill, would – I think – render those arguments impossible to make, making settlement easier, and cutting costs for the injured parties.
    And a Court of Appeal decision (even a unanimous one) is – of course – not binding in Scotland, where this legislation will apply.

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