D23 Justice Committee Damages (Asbestos-related Conditions) (Scotland) Bill Written submission from Union of Construction Allied Trades and Technicians UCATT welcomes the common sense decision of the Scottish Government to overturn the disgraceful decision of Law Lord’s in October 2007 by introducing the Damages (Asbestos-related Conditions) (Scotland) Bill to the Scottish Parliament on 23rd June 2008. The reality of asbestos exposure is that our members diagnosed with plural plaques are faced with the mental anguish of knowing that employers exposing them to asbestos may have given them a potential death sentence. We must be clear here as to where the responsibility lies, many employers know the risks associated with asbestos, they always have, but some choose to play fast and loose with workers lives. UCATT experiences first hand how harrowing it is speaking to someone suffering from an asbestos related disease, we have to visit families and present compensation cheques to families that have lost loved ones. Financially calculated recklessness needs to be stopped. The issue of asbestos related disease is a key issue for the trade union movement and in particular those of us representing building workers. We know that the peak of associated illness has yet to come and UCATT will continue to speak up for our members and their families on the issue. In 2007, UCATT legal services undertook twenty legal cases of asbestos related cancers. We won compensatory payments totalling nine hundred thousand pounds, with a further ninety thousand pounds of claims won yet to be settled. But no amount of money can ever replace the loss of a loved one, killed because they went to work in an industry where they were exposed to asbestos. In 2007 eleven of our members, suffered death as a result of exposure to asbestos. In October 2007 the Law Lords ruled that workers who have developed pleural plaques would no longer receive compensation. Pleural plaques are a scarring of the lung caused by exposure to asbestos fibres. 1 D23 In their judgement the Law Lords believed that pleural plaques was not an injury that merits compensation as it allegedly was “symptomless”. However, the Law Lords disregarded that workers diagnosed with pleural plaques experience severe mental distress. In addition, it is often a first stage to developing other asbestos-related diseases such as asbestosis and mesothelioma, the latter being always fatal with a short life expectancy. The decision to stop payments brings down an established right to compensation, which had existed for 20 years. It is estimated that the ruling will save insurers of companies who exposed their workforce to asbestos more than £1bn over the next four decades. An individual now diagnosed as suffering from asbestos-related pleural plaques under this law has no claim. Therefore there is no obligation on any employer or insurer to respond to any claim. There is no possibility whatsoever of recovering the costs of the effort in trying to locate employers and insurers just in case the individuals exposed to asbestos develops into one of the compensatable conditions. Under the old law an individual who suffered from pleural plaques could initiate a claim and obtain compensation on a provisional basis. This gave the individual and the dependents security should one of the serious complications develop in later life. The insurers would be identified and judgment obtained. If the individual were unlucky enough to develop a condition such as mesothelioma it would simply be a question of quantifying the claim. The victim would have the security of knowing that their family was protected. As the law now stands an individual will have to wait until one of the compensatable conditions develops before being able to pursue a claim. Frequently an individual who develops mesothelioma will die within six months of diagnosis, sometimes even more quickly. Therefore if mesothelioma were diagnosed in an individual who had for many years had pleural plaques then the work in identifying a defendant and insurer, which could have been carried out many years before, would have to be carried out much later and in a very short space of time. The dying victim would not have the security of knowing that his family would be protected. Anyone who has taken a statement from a person dying of mesothelioma will know what a harrowing experience it is to try and think back over decades to identify exposure occurring many years before in order that the claim can be proved. This will be particularly problematic if, once the claim is made, the employer’s insurers challenge the accuracy of the information and evidence. If a pleural plaques case had been pursued and all the issues dealt with at the time of the pleural plaques claim being settled then there will be no problem in dealing with areas of contentious evidence if a serious illness develops at a later stage. Union lawyers know the frustration of evidential points being taken by 2 D23 defendants at the death of a claimant, something that can threaten the success of a claim. A further obvious disadvantage of the new law is that the investigations will be made far later than if the factual evidence and legal issues had been settled at the time of diagnosis of pleural plaques. For example a 20-year gap between the date of diagnosis of pleural plaques and the diagnosis of a condition such as mesothelioma provides plenty of time for firms to go into liquidation and insurance records to be lost by brokers or underwriters. Therefore a claim that might once have been successful could well be lost. The ruling and its underlying ignorance and misjudgement appalled UCATT. Following the ruling UCATT sent out a letter to all Members of Parliament alerting them to the disastrous impact of the ruling. We are delighted that the Scottish Government has taken the lead and put forward this Bill which will simply overturn the decision of the Law Lord’s in Scotland and ensure that Scottish workers can claim compensatory payments for diagnosis of plural plaques. We hope that all members of the Scottish Parliament gives full support to this Bill and it becomes legislation in due course without any delay. 3 D23 Appendix 1 – Case Summaries- UCATT Members Asbestos Related Illness Cases since 2000 1. UCATT branch member joiner had a successful claim for mild asbestosis settled in 2004. Compensation was £8000. 2. UCATT member claimed against Glasgow CC and Upper Clyde Shipbuilders for Pleural plaques. Award was £5623.50 after deductions in respect of Chester St insurance govt scheme for former Iron Trades. 3. UCATT member secured £13500 for mild/moderate asbestosis after exposure at the Caledon yard in Dundee. 4. An Uphall-based shopfitter died from mesothelioma. We pursued acclaim against Scottish Midland Coop Soc (Scotmid) for the family and obtained compensation of £111,000. 5. A Dundee joiner who contracted Pleural plaques due to exposure with Caledon yard, Dundee University and Dundee cc. Compensation of £7000 obtained in 2005. 6. Edinburgh man contracted Pleural plaques due to exposure with Henry Robb shipyard, MOD and Alexander Halls (now Hall and Tawse). Compensation of £7000 in 2006. 7. A Grangemouth member died from mesothelioma due to exposure with William Denny and son ltd- compensation of £108,000 in 2005. 8. Erskine member contracted pleural thickening and pleural plaques- exposure on Clydeside claim against British Shipbuilders- recovered compensation of £11500. 9. A Greenock member recovered £12250 for pleural plaques- claim was against Greenock dockyard. 10. Dunfermline joiner contracted pleural plaques due to exposure with Burntisland Shipbuilding, and Henry Robb ltd at Leith. Compensation was £10000. 11. Edinburgh joiner contracted moderate/severe asbestosis with W and JR Watson Leith. Compensation of £46500 obtained. I hope these case summaries are helpful for you. We do of course have a number of asbestosis and Pleural plaque claims ongoing, the latter ones now being re-commenced in anticipation of the Damages Bill going through over coming months. 4 .