Sufferers of pleural plaques in England and Wales – along with asbestosis lawyers and victim support groups – have long felt they have been unfairly treated by legislation, which prevents them from pursuing a claim for asbestos compensation. Exactly ten years have passed since October 2007 when the Ministry of Justice (MoJ) upheld a Law Lords ruling on a Court Of Appeal decision, which stated that the existence of pleural plaques was no longer grounds for awarding damages under the civil law. However, a breakthrough ruling in 2009 by the UK Supreme Court once again allowed an asbestosis claim for pleural plaques to be made in Scotland, followed by Northern Ireland in 2011.
Over the last decade, around 430 new cases of pleural plaques continue to be diagnosed every year in the UK, according to Industrial Injuries Disablement Benefit (IIDB). At various time during the same period, individual sufferers have petitioned the government to reinstate payments. The most recent campaign is being mounted by a victim in Wales who has suffered with pleural plaques since being diagnosed with the debilitating condition in 1999.
Known “indicator” of exposure to asbestos
Pleural plaques is a fibrous thickening and scarring of the inner surface of the lung linings (pleura), which is a known “indicator” of exposure to asbestos, despite not being considered harmful in themselves, i.e. they are neither cancerous nor tumour forming. It was for this reason that insurance companies challenged the right of victims to pursue compensation, based upon their demand for “proof of damage, loss or injury… which is actionable” to be an essential component of the claim.
However, the action of fibrous thickening reduces the elasticity and ability of the lung to function causing symptoms, such as shortness of breath, feeling of tightness across the chest and general chest pains. Even a low-dose and irregular exposure can still cause pleural plaques to form in around a half of all those who are exposed to asbestos, and are almost always present in patients with asbestos-related disease and often in patients suffering with mesothelioma.
Ever since the 2007 ruling, a pensioner in his 80s with pleural plaques – also from Wales – has repeatedly called for the decision to be reversed, including bringing his concerns both to the Welsh Assembly and the House of Commons. Although compensation for his own condition was awarded before the Lords ruling, in 2015 the veteran campaigner aimed to collect 10,000 people to sign a petition.
Future risk of developing a more serious asbestosis disease
In the present campaign for reinstatement, the victim – who is also coordinator of the South Wales Asbestos Support Group – points out that the devolved parliaments of Scotland and Ireland came to understand that the condition ought to be “actionable”. Compensation should be awarded for both the “physical change to the lung tissue” combined with the “inevitable anxiety caused to the individual over their future risk of developing a more serious asbestosis disease or the fatal mesothelioma cancer.
The last occasion when the government was called to action was back in 2012 when 30 MPs joined together to urge a reassessment of their position on access to compensation and allow pleural plaques victims to sue their employers where there is proven negligence.
However, when the Diffuse Mesothelioma Payment Scheme (DMPS) was introduced by the government in 2014 as a “fund of last resort” for around 3,500 mesothelioma sufferers who every year are unable to trace their original employer or insurer, those victims with other asbestos-related diseases, such as asbestosis and pleural plaques were also excluded.
In the same year, research was published, which clearly challenged the idea that the presence of pleural plaques was benign and that the condition was without harmful symptoms. The research, entitled, “A systematic review of the association between pleural plaques and changes in lung function” pointed to “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”.
Pleural plaques can and does have a debilitating impact
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 and does have a debilitating impact upon lung capacity.
Recently, a five figure sum for the “provisional harm” caused by pleural thickening and pleural effusions was awarded to a former steel worker exposed to asbestos over a twenty year period. A claim for “significant” pleural thickening may only be made if it can be shown that there is a respiratory disability of between 1 and 3 per cent.
The 2 – 4 per cent reduction in breathing capacity, as confirmed in the research review, could be vital data in support of re-evaluating the 2007 ruling, which has prevented hundreds of pleural plaques sufferers from pursuing action for rightful compensation over the last ten years.