BIBA response to Government consultation on Pleural Plaques
29th September 2008
The British Insurance Brokers Association (BIBA) is the UK’s leading general insurance intermediary organisation. We represent the interests of insurance brokers, intermediaries and their customers.
BIBA represents 2,300 insurance intermediaries including 98 of the UK’s top 100 insurance intermediaries. Our members handle about half by value of all UK home, contents, motor, travel, commercial and industrial insurance policies. Independent insurance intermediaries distribute nearly two thirds of all UK non marine general insurance, of which BIBA members account for over 80%. They also introduce £20 billion of premium income into London’s insurance market each year.
The consultation has been produced following the House of Lords decision in the case of Johnson v. NEI International Combustion Ltd. The Law Lords upheld a Court of Appeal decision that the existence of Pleural Plaques does not constitute compensatable damage. Various options are included in the discussion points, from action to improve the understanding of the condition and providing support, to consideration for changing the law of negligence to make it compensatable. The consultation also looks at a no fault compensation scheme, either within a fixed period prior to the House of Lords judgement of cases where no compensation has already been paid, or a no fault compensation based upon diagnosis both now and in the future.
Response to questions
Q.1. Do you think that the proposals to raise awareness of the nature of pleural plaques will help allay concerns?
Education is the recommended route although care will be required to ensure that the distribution of information does not spread panic and lead to unnecessary additional pressures on the NHS with demands for X rays and investigations by significant numbers of the public. It should be remembered that the majority of people who have worked with asbestos do not have a medical condition, and there is no established link between pleural plaques and other asbestos based diseases. An appropriate mechanism for the distribution of information could be at the following levels:
Level 1: via GPs, Hospitals and NHS Direct
Level 2: an overview to the general public distributed via CABs and other outlets
It is very possible that any publicity in respect of pleural plaques (even if designed to alleviate concerns) will spark a number of questions and queries to GPs from patients who may have worked with or otherwise may have been exposed to asbestos at some time. Many non-specialist medical professionals may themselves not fully understand some of the issues with pleural plaques.
The suggested Level 1 information for GPs etc should be a detailed technical medical explanation and prognosis of this condition including the appropriate medical references. The suggested Level 2 information should be written to enable the general public to understand the condition without causing any undue concerns. The Level 1 publication should be restricted to medical professionals with the Level 2 publication readily available to the general public. Both versions should be available to view on the government web.
Q.2. What are your views on whether it would or would not be appropriate to overturn the House of Lords decision on pleural plaques?
At present, the law of negligence allows for compensation where a negligent act causes bodily injury and damage as a result. Any change in legislation would set a precedent in other areas for compensation and in turn could cause the insurance market to have unpredictable claims where there are no reserves. This is likely to destabilise the liability insurance market.
The Law Lords have reviewed and established beyond doubt the three criteria which must all be present before there is a cause of action for damages for personal injuries due to negligence or breach of statutory duty as follows:
- A negligent act or breach of statutory duty by the defendant
- The negligent act causes an injury to the claimants body
- The claimant must suffer material damage as a result
Our view is that these three elements form the bedrock of the Common Law concept of negligence and its compensation, and as such, should not be undermined. To do so runs the risk of creating a seismic shift in the whole basis of liability with eventual results that at this stage may well be unexpected, unsuccessful, and unwanted.
Of further concern is the potential for “cross border forum shopping” if the Scottish Parliament decide to make this a compensatable disease.
Q.3. Do you consider that no fault financial support for pleural plaques would be appropriate? If so, what would the rationale be for this? If not, please give your reasons
If there is no legal liability, then insurers should not compensate. Any attempt to involve insurers in a compensation fund could lead to destabilising the liability insurance market and insurers will need to very quickly pass on these costs to insureds via increased premiums. We would not support a fund involving the insurance industry and this does raise questions on any potential fund in terms of contributors.
Any fund that may be considered to pay compensation should, in our view, extend to include all persons where medical evidence indicates that the person has pleural plaques and not limited to compensate individuals in circumstances where the pleural plaques are allegedly caused by work related conditions.
We would stress that such a compensation scheme should not be funded, in full or in part, by the insurance industry. There is no obligation within the insurance contract between insureds and the insurers to pay into such a fund where there is no legal liability on insurers to pay such compensation and no reason within the terms of the insurance contract for such payments to be made.
Q.4. If a no fault payment scheme were to be introduced
a) which of the above two schemes should be introduced and why?
b) what level of payment would be appropriate?
c) how should the scheme be funded?
d) what limitation period should apply for each option?
BIBA does not feel able to comment as we consider the concept of a no fault payment scheme to be ill founded. It implies that pleural plaques- as a symptomless condition- is worthy of compensation, even though it does not meet the three criteria described in the answer to Question 2. Such a scheme would lead to the rise of “claims farmers” with little interest beyond their referral fees There would, in addition, be additional pressures on the NHS for X rays and investigations.
Q.5. Do you have any estimates regarding:
a) the number of people currently diagnosed with pleural plaques?
b) the future number of people who will develop pleural plaques?
BIBA cannot comment as it does not have access to the appropriate statistics.
Q.6. Do you have any estimates regarding the future distribution of pleural plaques cases, including the period of time over which people will develop pleural plaques?
BIBA cannot comment as it does not have access to the appropriate statistics
Q.7. Do you have any estimates regarding the number of people diagnosed with pleural plaques prior to the House of Lords decision and who have not received compensation.?
BIBA cannot comment as it does not have access to the appropriate statistics.
Pleural plaques is a symptomless condition associated with asbestos fibre exposure but unlike other asbestos related conditions, is benign and does not adversely affect the quality of life. It is not a compensatable disease falling to be dealt with by insurers. BIBA acknowledges that a carefully constructed education campaign would be beneficial to allay the myths and fears amongst the public in helping to understand the condition and to reduce anxiety.
Thank you for taking the time to consider our response. If you have any further queries please contact BIBA’s Head of Technical Services, Peter Staddon on 0207 397 0204 or [email protected], BIBA’s Technical Services Manager, Steve Foulsham on 0207 397 0234 or [email protected] or BIBA’s Technical and Corporate Affairs Executive, Graeme Trudgill on 0207 397 0218 or [email protected] for further information.