Ian Macalister says the Rothwell ruling should end further litigation, but it won’t

The House of Lords’ recent decision to block claims for damages for pleural plaques is undoubtedly a major success for the insurance industry.

In Rothwell v Chemical & Insulating Co Ltd & Another, the Lords unanimously decided that pleural plaques, which indicate exposure to asbestos but do not cause symptoms, are in themselves insufficient to warrant compensation.

The judgment creates a major barrier to future claims and effectively ends the practice, built up over the past 20 years, of insurers being expected to settle this type of claim. However it may not be the end of the story.

First, insurers can expect a rise in the number of claims for pleural thickening. Although there is a fine division between the two, claimants may argue that thickening, even without respiratory disability, can found a cause of action, though we believe that argument should be resisted.

For example, in the course of the Rothwell trial, the claimant, Mr Rothwell, was found to have localised pleural thickening, but it was asymptomatic and did not affect his prognosis.

In the Court of Appeal, it was suggested on his behalf that the presence of pleural thickening alone was sufficient to dismiss the insurer’s appeal against his original award. The court rejected that proposition, recognising that the actionability of pleural thickening was something to be considered in future when the point arises. The issue does not appear to have been raised before the Lords.

We do not believe the mere presence of pleural thickening alone should be sufficient to elevate a condition to the status of an actionable injury, and the question of the threshold of actionability remains open in individual pleural thickening cases.

The Judicial Studies Board guidelines clearly contemplate some level of measured disability.

In such circumstances, it may be that claimants’ clinicians are keener to diagnose an anticipated respiratory disability, so that this, alongside the thickening, would be said to establish their case. Insurers will need to be alert to this and consider whether evidence is required to dispute whether a material respiratory disability actually exists.

This latest case may also refocus attention on questions surrounding sub-clinical damage. A number of cases involving hand-arm vibration syndrome show that there is a recognition by the courts that such damage is quantifiable and has a monetary value. If asymptomatic pleural thickening is actionable, presumably such claims would be worth awards around the low levels discussed in the Court of Appeal in the Rothwell case.

In the judgment on the pleural plaque cases, claimants have also been encouraged by the Lords to consider an alternative cause of action – a claim for breach of contract. The argument is that within the contract of employment, there is an implied term to provide the employee with safe working conditions.

Lord Scott suggested that a claim for contractual damages might arise, on the basis that it is not necessary to establish damage in a claim for breach of contract. However the Lords does not address the point that if there were no actual damage, the sum recovered would be nominal.

The breach of contract approach is likely to be keenly considered by claimant advocates, but whether claimants will have the heart and financial muscle for another lengthy legal argument, and whether it will ultimately succeed in improving their position, is debatable. There is also the important question of whether conventional employer liability policies would respond to such claims, which raises further issues for the industry.

Meanwhile, despite the government confirming that it does not intend to legislate to reverse Rothwell, a change in the law cannot be completely ruled out.

During the course of the Compensation Bill 2006 an amendment to make actionable the negligent lodging in the body of any substance which may cause injury, regardless of symptoms, was considered. However it was felt by the government at the time to be inappropriate to include that provision in the Act pending the House of Lords’ judgment in Rothwell.

There are various interest groups pressing the Scottish Parliament to legislate; in the event of legislation north of the border the government may come under renewed pressure to address the consequences of the judgment in England and Wales.

The Compensation Act did change the law to effectively reverse the House of Lords decision in the case of Barker v Corus [2006] in relation to mesothelioma claims. However, the government must surely accept that it is right to distinguish between plaques and mesothelioma.

After all, the current proposed changes in the handling of mesothelioma claims, involving the new pre-action protocol and the rolling out throughout England and Wales of some of the procedures from a specialist court, already demonstrate clearly the government’s existing credentials in the field of asbestos.