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  • Writer's pictureKirk Hartley

Asbestos Claiming – British Government Apparently Takes a Wise Decision Not to Reinstate Compe

A July 10 article in the Mirror reports (bitterly) that the British government has taken a decision not to reinstate compensation for pleural plaques. The decision follows up on last summer’s government Consultation paper available here. The decision apparently will be formally announced this coming week ahead of the July 20 recess date for Parliament. The apparent decision in London stands in marked contrast to Scotland’s mistaken decision to legislate to reinstate compensation for pleural plaques, a decision presently under legal attack as described here back in April.

According to the Mirror article, the government in London has made the wise decision not to encourage pleural plaques claiming. Specifically, the government apparently will not pass legislation to overrule the Rothwell decision by the House of Lords. The gist of the Rothwell was the holding that pleural plaques are not compensable because they virtually never cause any physical impairment or pain, and therefore there is no compensable injury. According to the Mirror article, the government will, however, establish an online research center for asbestos-related disease and will pay compensation of £5,000 to about 6,500 persons whose claims predate Rothwell.

According to the Mirror article, unions are unhappy with the decision taken by the government. However, one hopes that on reflection, the unions and their members will appreciate the wisdom of the long-term decision. Why? There are myriad reasons, most of which I described in a detailed paper submitted last fall in opposition to the extreme parts of the proposals set out in the UK government’s Consultation paper. Overall, the big picture point is that experience in the US has proven that paying compensation to persons without impairment is bad policy that drains away resources (medical, financial, judicial, and governmental) that should be focused instead on coping with the terrible burdens inflicted by mesothelioma tumors and certain other asbestos-related cancers that tend to arise in some parts of the body for persons with material amounts of work in certain occupations.

Ultimately, the folly of paying compensation to the unimpaired is evidenced by the tidal waves of claims that swamped US courts and asbestos trusts to the point they ceased to provide anything even remotely close to justice for injured persons or corporate defendants, as has been detailed by Professor Lester Brickman, with key excerpts set out in the opposition paper. Ultimately, claiming by the unimpaired became so enormous and costly it rendered the Johns-Manville asbestos trust insolvent more or less on the day it opened its doors, causing it to shut down operations in 1990, two years after it opened in 1988 after 6 years of legal wrangling. Then, after about 5 more years of lawyering, the Manville trust reopened but paying only a tiny fraction of the amounts that would otherwise be available to mesothelioma victims.

For more specifics, read the Manville trust history here on the Manville Trust website. Then read Judge Weinstein’s 2009 paper lamenting the reality that the US legal system has done at best a lousy job dealing with mass tort issues. Judge Weinstein’s words deserve special heed because he was central to Manville, Agent Orange and other mass tort cases described in his thoughtful paper. Also read the 2005 RAND report that details developments in the US asbestos claiming process. Finally, read through at least some of Professor Lester Brickman’s voluminous law review articles and Congressional testimony regarding the disastrous developments in mass asbestos-claiming by unimpaired persons.

The unions and their members also should heed the growing need to focus on cancer because the cancer situation is only going to get worse in the UK for – at least – another decade and perhaps much longer. Specifically, after the UK Consultation was issued last summer and after oppositions to the Consultation were submitted in fall 2008, the case against paying compensation for pleural plaques became even more compelling when a cadre of highly qualified and experienced UK researchers published a landmark medical article further detailing the growing UK epidemic of mesothelioma tumors. The article explains that widespread and long-running use of amphibole asbestos fibers in the UK has resulted in the UK having the highest mesothelioma rate in the world. The conclusions and work of the group, lead by the much-honored Professor Julian Peto, are summarized here, and an online paper is here. The work of the research group is ongoing until at least 2015 – a clinical research description for the ongoing work is here. The citation for the landmark paper and related online paper are:

Peto J, Rake C, Gilham C, Hatch J. Occupational, domestic and environmental mesothelioma risks in Britain: a case-control study. Health And Safety Executive Research Report RR696 (2009) published online here.

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