Too much talk, not enough action

Asbestos: It’s a word that sets alarm bells ringing. Have insurers reserved enough? When will mesothelioma claims really peak? What’s next on the employers’ liability insurance (EL) trigger debate? What about damaged reputations? What else haven’t we thought of?

There have been more and more discussions on asbestos this year. So let’s dispel a few myths, starting with the nastiest of all asbestos-related diseases, mesothelioma.

Most insurers want to improve the situation for mesothelioma sufferers – who often die within two years of the disease being diagnosed – but the interaction between lawyers and insurers is too slow and cumbersome at present. Most claimants do not get compensation during their lifetimes.

We want to get compensation into their hands at a time when it might be of some use. There are hurdles, but everyone involved in the debate should remember a person diagnosed with mesothelioma will die prematurely from an illness that has no cure, and for which compensation is due.

Pre-action protocols, agreements and endless discussions are all well and good, but have they delivered what is needed in a modern society? More could be done, more should be done.

The second myth is that insurers are fighting to prevent sufferers getting compensation by trying to rely on policy wordings that support claims when a disease occurs (usually many decades after the original exposure to asbestos) rather than when a disease is caused. This goes to the heart of the recent EL trigger debate.

Let’s be clear; most insurers support the view that policies should be interpreted as if they were written on a causation basis regardless of the language used. If the courts decide to move away from this as a basis for legal precedent, our reputations will suffer, even though the litigation was brought by a small part of our industry.

Another myth concerns pleural plaques. Yes, insurers did pay compensation for pleural plaque “sufferers” for many years in the run-up to the House of Lords judgment in 2007, but medical opinion in the 1980s and 1990s was nowhere near as advanced as it is today. We now know pleural plaques produce no symptoms, have no adverse health impacts (except in a small minority of cases where compensation is available) and do not lead to other physical conditions.

Is it right that people who don’t understand the difference between the various asbestos conditions, with groups that financially benefit from referral fees on these claims, seek to place an obligation on both government and insurers to provide compensation? I know this is a difficult argument to win, but we must persevere.

There is no bluff involved; insurers will challenge the Scottish parliament in their attempt to overturn the House of Lords judgment, just as they will challenge any attempt to reintroduce compensation for those with pleural plaques. These people need information and support to explain their condition and help put their minds at rest, rather than a financial reward.

If governments genuinely want patients with plaques to receive financial gain they should provide it as a state benefit, funded out of general tax, rather than trying to play around with tort laws that have stood for hundreds of years.