Asbestos victims win right to damages

Workers who suffer scars on the lungs as a result of asbestos exposure are entitled to claim compensation, a High Court judge ruled yesterday.

But in deciding a series of test-case challenges, which are being closely watched because of their implications for thousands of similar claims, Mr Justice Holland scaled back the typical levels of compensation payable.

He also gave insurers Norwich Union and Zurich, with the Department of Trade and Industry acting for the now defunct British Shipbuilders, permission to appeal his decision.

The insurers had mounted the test-case legal challenge, questioning whether pleural plaques - scars on the lungs from asbestos exposure - still amounted to a "compensatable injury", even if employer negligence in terms of exposure was established in the light of current medical knowledge.

Their lawyers argued that pleural plaques could not be regarded as a disease and did not give rise to any physical impairment. Anxiety engendered by the risk of future health problems could not, as a matter of law, be compensated, they argued.

The 10 test cases involved former industrial workers who had brought pleural plaques claims. Their lawyers maintained that plaques were evidence of exposure to asbestos and amounted to damages.

Victims, they said, usually suffered anxiety that they might be at risk of more serious asbestos-related problems, such a lung cancer or mesothelioma.

In his ruling, Mr Justice Holland found that "permanent penetration of asbestos figures" did not, in itself, constitute injury or damage "so as to found a case of action".

But he said anxiety engendered by pleural plaques did constitute a foundation for a damages award. The description by one defence barrister of the claimants as the "worried well" was not entirely fair, the judge said, although it underlined the subtlety of the task of assessing how much compensation should be paid.

While the claimants' legal teams welcomed the judge's decision that pleural plaques were compensatable, they expressed disappointment about the level of damages.

In typical cases where the award was provisional - leaving open the possibility of a claimant returning to court should he experience future asbestos-related health problems - the judge said £4,000 was appropriate.

In other cases, where the award was final, he awarded £7,000. These sums were below those sought by the men's lawyers.

In his judgment, Mr Justice Holland also said that number of claims made following discovery of pleural plaques had seen "a very substantial recent rise".

Speaking after the ruling, Ian McFall, head of the national asbestos litigation team at Thompsons, the union lawyers who were acting on behalf of Amicus for two of the 10, said: "There are thousands of cases of pleural plaques outstanding. There will be tens of thousands in years to come."

One of the claimants, 58 year old Ken Johnson, who now works as contracts manager dealing with health and safety issues, said he was happy the judge had ruled that pleural plaques were compensatable.

But he was dismayed the insurers were considering an appeal. "Their ethics are non-existent," he said. "I feel insulted they say it's not a disease".

"Financial Times": 16.2.05