Friday 27 June 2014
COURT AWARDS DAMAGES FOR PLEURAL PLAQUES
Summary of Judgment
Mr Justice O’Hara, sitting today in the High Court in Belfast, awarded damages of £10,000 to the widow of a man who was diagnosed as having pleural plaques as a result of his exposure to asbestos. This was the first claim for pleural plaques in NI following the passage of the Damages (Asbestos Related Conditions) Act (NI) 2011.
The proceedings were brought by Carol McCauley (“the plaintiff”) who is the widow of William Henry (Harry) McCauley who died on 20 February 2013 aged 74 years. He worked for Harland and Wolff from about 1955 to 1961 and for the Royal Mail from about 1964 to 1980. Both companies admitted that during his employment with them he was exposed to asbestos. Mr McCauley died in 2013 as a result of multiple organ failure following cardiomyopathy (a disease of the heart muscle). It was agreed that his death was not in any way as a result of an asbestos related condition. Pleural plaques first appeared on a chest x-ray taken in 1991 but Mr McCauley was only informed of the diagnosis on 10 February 2012. Mr McCauley suffered no symptoms as a result of his pleural plaques. It was conceded on behalf of the plaintiff that any anxiety or stress that her husband suffered before his death as a result of the diagnosis did not amount to any identified psychiatric condition and there was no evidence from his medical records that he complained to his GP about stress or anxiety.
Mr Justice O’Hara referred to NI cases in the early 2000s which showed that damages were being awarded for pleural plaques even in cases where there were no symptoms and where the deceased was unaware of their presence. He said this changed in 2007 when the House of Lords delivered its decision in the cases of Johnston v NIE and Rothwell v Chemical Insulating. In this judgment the House of Lords decided that the development of pleural plaques, whether or not associated with the risk of future disease and anxiety about the future, was not an actionable injury because proof of damage was an essential element in a claim of negligence. The court held that it was not satisfied that pleural plaques could be characterised as a “disease” or as an “impairment of physical condition” and concluded that pleural plaques should be regarded as “de minimus”.
Mr Justice O’Hara said this judgment brought to an end throughout the UK all claims for damages for pleural plaques in which the plaintiff or the deceased had no symptoms. That continues to be the position in England and Wales but in Scotland and NI the local parliaments passed legislation which reversed the decision of the House of Lords and provided that pleural plaques constitute actionable harm for the purposes of an action of damages for personal injuries. The question in this case was therefore how the damages are to be assessed and how the NI legislation is to be interpreted and applied.
While the Scottish and NI Acts are worded differently (the Scottish Act states that pleural plaques are a personal injury “which is not negligible” whereas these words are not contained in the NI Act), the judge held that he was unable to attribute any significance to that. Mr Justice O’Hara also said he was wary, in the absence of compelling evidence, of drawing a significant distinction between the wordings of the two statues when each piece of legislation is intended to reverse the effect of the House of Lords decision. He concluded that pleural plaques is now a statutory personal injury for which damages can and should be awarded if the plaintiff proves fault against the defendant.
The court heard that there are currently no NI guidelines on the assessment of damages for pleural plaques (the most recent guidelines date from 2007). Mr Justice O’Hara said he could not see any reason not to revert to using these guidelines on quantum while allowing some increase in the range by reference to the changes in the retail price index. He awarded damages of £10,000 with interest at 2% from 5 July 2012 when the writ was issued. Harland and Wolff and Royal Mail had a sharing agreement and the award was accordingly made against both defendants.
NOTES TO EDITORS
1. This summary should be read together with the judgment and should not be read in isolation. Nothing said in this summary adds to or amends the judgment. The full judgment will be available on the Court Service website (www.courtsni.gov.uk).
If you have any further enquiries about this or other court related matters please contact:
Judicial Communications Officer
Lord Chief Justice’s Office
Royal Courts of Justice
Telephone: 028 9072 5921
 Areas of fibrous thickening of the membrane surrounding the lungs which signal the presence of asbestos fibres and which may independently cause life threatening or fatal diseases such as asbestosis or mesothelioma. Save in very exceptional circumstances they cause no symptoms.
 The 1997 guidelines suggested the value of a claim for pleural plaques was in the region of £5,000 to £10,000.