Mesothelioma (Legal Aid Reform)

Debate between Bill Esterson and Dennis Skinner

Tuesday 26th June 2012 Westminster Hall

[Bill Esterson]

I am happy to congratulate my hon. Friend’s colleague. She is right that it is the companies that cause this terrible pain and suffering, as well as their insurers, that should bear the financial costs, although there is no way of truly compensating the victims and their families for their suffering. It should be the private industry that caused the condition, and its insurers, that pays, not the public purse.

People were exposed to this terrible disease at work in situations which employers knew would ultimately kill the workers. However, as things stand under the legislation, those same people and their families will lose a quarter of the compensation that they absolutely should receive from the insurers of those companies.

The Government rejected a Lords amendment that would have exempted mesothelioma from the provision, but they have yet to say how sufferers and their families will be protected. In all the non-answers from Ministers, they have yet to justify to thousands of families why they did not exempt mesothelioma.

Mesothelioma is an exceptional case, because the problem was known about for more than a century. Asbestos was identified as a poisonous substance in 1892 and has been banned from use in this country for almost half a century, yet employers knowingly exposed their workers to it day in, day out. They knew the dangers and ignored them for decades. They were eventually held accountable, but ever since the first successful case against employers and insurers on asbestos-related diseases, they have kept coming back to the courts and the issue has kept coming back to this place.

Mesothelioma causes intractable pain and severe breathlessness, which means that more than half of all the very modest damages claimed are for pain and suffering. The Government’s proposals would have a disproportionate effect on mesothelioma sufferers, because victims receive a higher proportion of their damages for pain and suffering than those who claim for personal injury.

The legislation requires terminally ill asbestos victims who succeed in a claim for compensation against negligent, guilty employers to pay up to 25% of their damages for pain and suffering in legal costs. They are not part of the compensation culture, nor are they legally aided, so to include them in that provision is wholly wrong. Many sufferers are so defeated by their illness that they never make a claim under current circumstances. Victim support groups have been told by victims that the change proposed would be a significant further deterrent to them making a claim at all. That would represent a big saving for the insurance industry, which therefore has the financial interest hinted at by my hon. Friend the Member for Liverpool, Walton (Steve Rotheram).

[Mr Dennis Skinner (Bolsover) (Lab)]

I congratulate my hon. Friend on raising this issue for the umpteenth time. It is always possible to tell when an issue ought to be dealt with. We fought constantly for bronchitis and emphysema to be treated as industrial diseases, and did the same with vibration white finger. In 1999-2000, we managed to get the show on the road. Mesothelioma has been debated in this place ad nauseam, which is why we can tell that it ought to be dealt with at long last. I thank my hon. Friend for raising the matter once again.

[Bill Esterson]

My hon. Friend speaks with greater experience than anyone in this House on the subject and on the issue of protecting the rights of workers who have suffered, over many years, grave injustice through industrial diseases and industrial accidents. He brings that wealth of experience from his time as a miner, and he continues to campaign tirelessly, and I applaud him for that. He is absolutely right that we have a duty to the victims to ensure that the matter is dealt with properly and that this Government are held to account. We need to hear answers today as to what will happen in that review, and it needs to be done quickly.

KPMG estimates that the insurance industry was given a £1.6 billion windfall when the Government ended compensation for pleural plaques. Unless the Government change their mind on mesothelioma, a similar windfall may be made available to the insurers at the expense of victims of industrial disease.

In contrast to other diseases, mesothelioma has only one outcome—loss of life. It is not trivial, and victims need help not hindrance. Most doctors say that the average lifespan from diagnosis to death is around nine months to one year. As one victim explained:

“My life has been turned upside down, and I really didn’t want to think about anything except spending my last days with my family. I worked all my life and paid all my national insurance and taxes, so this seems unfair.”

Mesothelioma victims, who often have just months to live, should not be expected to devote their energies to finding the lawyer with the best deal, yet that is what the Government expect them to do. Asbestos-related disease is not an accident. It is the result of negligence and lack of duty of care.

The claims of dying asbestos victims are never frivolous or fraudulent, but they are lumped in with road traffic accident claims that make up more than 70% of personal injury claims, for which the Government and insurance industry suggest that conditional fee agreements have been exploited. Between 2007 and 2011, there was a 6.6% reduction in employer liability cases, of which most respiratory claims are a subset. During that same period, road traffic accidents increased by 43% to nearly 800,000 cases. It is expected that mesothelioma claims will peak in about 2015, as asbestos has been eliminated from the working environment. Unscrupulous claimants may be able to fake road traffic injuries, but not mesothelioma or asbestosis. Road traffic accident problems will not be solved by punishing asbestos victims.

Mesothelioma sufferers who make a claim mainly do so because they and their families will not be at risk in terms of legal costs, which, without no win, no fee agreements, would be prohibitive. A claim may be valued at between £5,000 and £10,000, which is of great importance to the individual concerned, but which could be eaten up in costs and premiums under the Government’s plans. Mesothelioma sufferers would lose the whole of their compensation simply by not taking any action, which, as we have heard, is increasingly likely if no changes are made. Their access to lawyers would be restricted by making success fees unrecoverable from defendants, putting them at risk of paying defendants’ costs if they lose. Victims are already reluctant to claim because they have so many problems dealing with their rapid deterioration in health and trying to survive. The risk that if they lose they will have to pay such costs would be a massive additional hurdle for some of our most vulnerable people, to whom a decent, civilised society should and would guarantee support.

We should not forget that compensation is already significantly reduced for many sufferers. They must not only provide evidence of heavy exposure dating decades back, but forgo that portion of compensation where insurers cannot be traced for employers that are no longer trading. As insurance companies fight mesothelioma cases to the end, often trying to elongate the case until the victim dies, the cost of after-the-event insurance can be huge. As that will also be unrecoverable under the Government’s plans, there is no prospect of claimants being able to afford the premiums. The Government’s one-size-fits-all approach in the legislation is wrong. It may work for some personal injury claims, but is not effective in the case of complex industrial disease cases such as those involving mesothelioma.