Victims of asbestos exposure, diagnosed with pleural plaques, continue to suffer from a double disadvantage. The reason? Pleural plaques is a dense, fibrosis scarring on either one or both sides of the lungs. While the symptoms are neither cancerous nor tumour forming, their presence is almost always an indication of an exposure to asbestos. This means that the victim has to live with the risk of developing mesothelioma or lung cancer at any time in the future. The potential for eventually receiving the fatal diagnosis can affect all those who are exposed to asbestos, half of whom will later develop pleural plaques.
The second disadvantage is often a former defendant employer’s view that the presence of pleural plaques does not merit a claim for asbestos compensation. Unfortunately, this has a also been the prevailing position of the courts in England and Wales, since 2007, when the House of Lords ruled that pleural plaques was no longer an “actionable injury” for mesothelioma compensation because a claim of negligence requires an “essential proof of damage” to be established.
The ruling meant that a victim with pleural plaques is not only faced with a very uncertain future but may only be entitled to claim damages for their original exposure to asbestos if and when they are diagnosed with pleural thickening, asbestosis or mesothelioma. In many cases, the first appearance of asbestosis symptoms almost always occur around 30 or 40 years or more following the initial period of exposure.
A victim is likely to be in their 70s and 80s at the time of the diagnosis and if diagnosed with mesothelioma at this age may only be expected to live less than 12 months. In a recent tragic case, a former maintenance electrician diagnosed with mesothelioma at age 84, was first diagnosed with pleural plaques ten years earlier.
Arguing over how long the victim would have been expected to live
During the height of Britain’s asbestos use between the 1950s and late 1970s, maintenance men often had to drill, saw or remove asbestos partition walls and ceilings or work in confined spaces where they breathed in airborne asbestos dust. During this period in British industry, when the electrician was employed, 1951 – 1985, the absence of asbestos awareness to the long term health risk meant that company employers often failed to provide any protective equipment or breathing masks.
The retired electrician was unable to claim for damages when he was diagnosed with pleural plaques in his early 70s. However, when doctors discovered he was suffering with mesothelioma ten years later, action could be finally taken to enter a claim against his former employers.
Predictably, the defendants denied all liability until a special court procedure was begun, which places the burden of proof on the former employer to show that they have good reason to defend the claim. Unfortunately, the robust defence continued with the employer first denying the medical evidence , and then arguing over how long the victim would have been expected to live if he had not developed the fatal disease. The case was eventually settled a month before a full trial to determine the exact amount of compensation to be paid was due to begin.
Tragically, the victim has already passed away and was not able to see his widow finally obtain justice and financial security that had been denied since pleural plaques was diagnosed ten year earlier. While many defendants will settle a claim out of court, there can still be those who will continue to argue against and deny the victim’s claim.
Although victims are still unable to claim for pleural plaques in England and Wales, the position elsewhere has improved.
Exclusion of victims with other asbestos-related diseases, such as pleural plaques
In 2011, a ruling by the UK Supreme Court allowed those living in Scotland – followed a few weeks later by Northern Ireland – to once again, make a claim for pleural plaques.
There was even a one year only “no-fault” scheme introduced in England and Wales by the Ministry of Justice in August of the same year. Only a very limited number of applications for ‘one-off ‘payments of £5,000 were allowed to be made to those individuals who had already begun a legal claim prior to October 2007. Since then, the position in England and Wales remains unchanged.
In July 2014, the Diffuse Mesothelioma Payment Scheme (DMPS) was introduced by the government as a “fund of last resort” for around 3,500 mesothelioma sufferers who every year are unable to trace their original employer or insurer. The scheme was notable for the exclusion of all other victims of asbestos exposure, who are diagnosed with other asbestos-related diseases, such as pleural plaques.
Pleural plaques can have a debilitating impact upon lung capacity
Also in 2014, a study was published, which clearly challenged the idea that the presence of pleural plaques was benign. The research indicated that there was “a small, but statistically significant mean difference” in the total amount of air exhaled during a forced breath and the amount exhaled in the second forced breath when compared to the performance of asbestos-exposed individuals “without plaques or other abnormalities”.
The findings were further clarified in July 2015 when the researchers explained that the statistically significant difference observed was a “2 – 4 per cent decrease in lung function…” In other words, the presence of pleural plaques can have a debilitating impact upon lung capacity. The findings question the Law Lords ruling of 2007, based upon the requirement for “proof of damage, loss or injury… which is actionable” to be shown as an essential element in an asbestosis claim.
A call for the government to relook at its position on pleural plaques and “allow sufferers to sue their employers where there is proven negligence” was proposed at the very end of 2012, and which was signed by a total of 29 MPs. However, since that time, there appears to be no further movement. Meanwhile, the number of cases of pleural plaques remains consistent at around 430 each year, according to the latest available figures from the Health and Safety Executive (HSE).