Mesothelioma (Legal Aid Reform)

Debate between Bill Esterson and Paul Goggins

Tuesday 26th June 2012 Westminster Hall

[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.

[Paul Goggins (Wythenshawe and Sale East) (Lab)]

My hon. Friend has given a graphic description of the pain and suffering faced and experienced by mesothelioma sufferers. He is describing the impact that the legislation would have on mesothelioma sufferers if, following a review, it was fully implemented for that group. He has mentioned several times the review that the Government have offered as part of the concession that they made while the Bill was passing through Parliament. Does he agree that it is essential that that review fully engages with mesothelioma sufferers and their families and especially the support groups, such as the Asbestos Victims Support Groups Forum UK, which has done so much to make the case on behalf of mesothelioma sufferers?

[Bill Esterson]

I thank my right hon. Friend for his intervention. I completely agree with him and will come shortly to what we need in the review.

For mesothelioma sufferers, unwarranted and fatal risks have been taken unknowingly, so the correct function of the legal system in such cases would be to restore victims to the position that they were in before diagnosis and to make provision for them and their families. Terminally ill and dying people will have other things on their mind than looking for a lawyer to give them a good rate, so there will not be greater competition, driving costs down, as the Minister claims. There is in fact no evidence that lawyers will reduce costs, as lawyers themselves will be less likely to take these cases because they risk not being able to recover costs if they lose or they face the dreadful prospect of having to recover those costs from their clients in a situation in which they have just lost in terrible circumstances.

Making changes to rules on compensation is no motivation or incentive for mesothelioma sufferers. One sufferer has said that

“no amount of compensation could ever compensate for my husband’s suffering and loss of life. To even contemplate this is wrong. My husband’s suffering has ended but still I have terrible images of his horrific suffering which I cannot erase…My husband was poisoned going to work. I hope this Government remembers that!”

At all stages of consideration of the legislation in this House and in the House of Lords, the fallacy of the Government’s position on industrial disease was pointed out. Twice the Lords voted on amendments to this effect:

“The changes made by sections 43, 45 and 46 of this Act do not apply in relation to proceedings which include a claim for damages for respiratory disease or illness (whether or not resulting in death) arising from industrial exposure to harmful substance.”

The Government were forced to reconsider their position and they agreed to an amendment, which brings us to the point of today’s debate. This is the amendment:

“Sections 43 and 45 and diffuse mesothelioma proceedings

(1) Sections 43 and 45 may not be brought into force in relation to proceedings relating to a claim for damages in respect of diffuse mesothelioma until the Lord Chancellor has—

a) carried out a review of the likely effect of those sections in relation to such proceedings, and

b) published a report of the conclusions of the review.”

Since then, the nature of the review, its timing, its terms of reference, how it is to be conducted and who is to be consulted have been raised several times. I have raised those matters myself with Ministers, as have the Labour Front-Bench team. When agreeing to the compromise, my right hon. Friend the Member for Tooting (Sadiq Khan) said:

“We need assurances it will be truly independent and not just a whitewash. We also need confidence there’ll be sufficient time allowed to see how the changes brought about impact on other successful claimants before rolling them out for mesothelioma sufferers.”

Given the Government’s conduct throughout, it is not surprising that we and those who represent mesothelioma sufferers, and the victims themselves, are sceptical about the Government’s promise. Today is an ideal opportunity, which I hope the Minister will take, to address the doubts of everyone who has concerns about mesothelioma. Anything less than a fully independent and thorough review of the potential effects of limiting claims will not be within the spirit or the letter of the amendments agreed to, which enabled the Government to get their legislation through. I hope that we will not hear generalities or evasions from the Minister. A clear commitment to do justice for the victims of this terrible disease is the least we can expect.

I therefore ask the Minister these questions. When will the review take place? Who will be part of the review body? What will its terms of reference be? No doubt it will include representatives of the insurance industry, but who will be the victims’ representatives? Will the review be truly independent, by which I mean independent of the insurance industry?

Concern remains that the change to no win, no fee will cut the number of people claiming and the amount being paid by insurance companies. The insurance industry has a clear financial interest in cutting down the amounts paid out. How will the Minister or his colleagues ensure that that interest is balanced by how the review is run? Will he consider an independent panel to examine mesothelioma and compensation for victims and their families? Will he and his colleagues consider the call for an employers’ liability insurance bureau following the pattern of the Motor Insurers Bureau? We must ask why there is such a facility for traffic accident victims but not for those suffering from mesothelioma or other industrial diseases.

Victims and their families want answers and protection. They have a right to that protection, given the suffering that they go through. It is time that Ministers gave answers about how that protection will be guaranteed, and soon, by this Government.