Mesothelioma
The final item of business today is a members' business debate on motion S1M-1273, in the name of Duncan McNeil, on compensation for mesothelioma sufferers. The debate will be concluded after 30 minutes without any question being put.
Motion debated,
That the Parliament notes the plight of shipyard workers and their families who were exposed to asbestos, became ill and have now contracted mesothelioma; expresses concern over the length of time their compensation cases are taking to reach conclusion and the use of so-called "blanket denials" by the defenders, and notes that this practice victimises and denies justice to these cancer sufferers.
I am pleased to be debating this motion today. I appreciate the support that I have had from back benchers from all parties.
Members will be glad to know that I will use the term "mesothelioma" sparingly, which will save me any embarrassment and spare the official reporters. However, I will use the term sparingly not only for those selfish reasons. Mesothelioma is a clinical and sterile term, which masks the true nature of a most painful and unpleasant form of cancer. That should not be hidden behind a word that is difficult to pronounce. Mesothelioma is a cancer of the lining of the lung. It is aggressive, painful and there is no cure. The victim is dead within 12 months.
The members of Clydeside Action on Asbestos who are sitting in the public gallery know only too well that a clinical medical term cannot describe the pain and suffering experienced by the victims of this disease. Unlike other major Clydeside industrial illnesses, such as deafness and welder's lung, exposure to asbestos did not only affect the workers themselves. Asbestos fibres that were brought into the home on overalls and in hair also damaged wives and children. I am aware of a case of a woman who was a bus conductress, who took shipyard workers to and from work. She had never been in a shipyard in her life, but she contracted cancer from asbestos on her passengers' overalls.
Mesothelioma is a huge problem. It affects more people than cervical cancer, and the death toll will double by 2020. Unfortunately, scientists believe that what they call the mesothelioma epidemic has not reached its peak.
Mesothelioma is more than a medical condition. On top of the pain and suffering and the anger and bitterness at having a terminal illness that could have been prevented, and on top of someone's guilt over possibly having damaged the health of their wife and children, there is a final insult that should be at the heart of this evening's debate: these cancer victims are being denied justice. I am not a legal expert, but I know that employers continued to expose their workers to asbestos long after the dangers of doing so became known. As a result, those workers are now dying an agonising death. In my book, there is a clear case to answer for that.
Unfortunately, when the victims try to claim compensation through the courts, those who defend the actions—the employers and the insurance companies—prolong their agony on spurious grounds. In researching this topic, I have been given information about a past case in which the legal representatives of a former shipyard worker who died of the disease made detailed submissions on the circumstances in which he was exposed to asbestos. Those submissions describe which shipyard he worked in, which contracts he worked on, the dates of his employment and the names of the friends and colleagues who worked with him.
In spite of the submissions, the defendants simply denied everything. They denied that the man was employed by them. They denied the existence of his friends and colleagues. They denied that the ships were built and even denied that the shipyards existed. In such cases, the victims are told that they never existed. What effect must it have on a person in the last few months of their life to be told that they never existed? Why should the legal representatives of the victims repeatedly have to prove to successive courts that the QE2 was built at John Brown's, Clydebank, in 1968? It sounds ludicrous, but that is happening in Scotland in the 21st century.
Of course, such spurious arguments can be disproved in a court of law, but that takes time and terminally ill people do not have time. I do not want to get emotional, but I suggest that—as a way of fighting back—we dedicate tonight's debate to Mr Lilly, whom members might have seen on the television programme "Frontline Scotland" recently. Owen Lilly was a former asbestos factory worker who suffered from mesothelioma. He died on Tuesday. His case was not scheduled to come to court until April 2001. What justice is there for Owen Lilly?
That is the reality: that cynical sharp practice denies victims the right to a jury, to interim payments and to other expenses that are incurred through having a terminal illness. If we are to move towards real justice for the victims, their cases must be resolved through the civil legal process as a matter of urgency and priority. We must remove the obstacles that cause delays and prevent such cases from being heard by a jury. The victims want juries, not judges. We must provide the victims with much-needed short-term assistance and review the powers and procedures of the courts, to enable them to receive interim payments pending final resolution of their cases.
I am pleased that 44 back benchers from all parties have supported the motion and thank the members who have stayed behind to listen to the debate. I hope that the Parliament has sent a strong message to those involved in the justice system that the way that the system currently deals with mesothelioma sufferers is not acceptable to us and that we look forward to supporting them effectively.
Members will have noticed that Mr McNeil avoided direct comment on any legal cases that might be under way and should bear that fact in mind.
I congratulate Duncan McNeil on securing this debate on a very important subject. I must say that, until two weeks ago, I had never heard of mesothelioma. Then a constituent visited my surgery and told me her story. It seems that not only shipyard workers contract this disease. This woman worked in a Dundee engineering plant 50 years ago. She was a fit woman and used to visit the gym regularly until June, when she started to experience breathing problems. After she went to the doctor and was referred for tests, she was diagnosed with mesothelioma, which came as a bolt out of the blue. However, when she began to investigate the disease, she found that there was very little research on the condition and, unfortunately, no effective treatment as yet.
I have written to the chief medical officer and the Minister for Health and Community Care to find out what research is being carried out or is planned. There are some glimmers of hope. The Cancer Research Campaign has been investigating a new drug cocktail, the compound multi-targeted antifolate or MTA. Such glimmers are important for people who are suffering from the disease. Perhaps the minister will indicate what the future holds for research.
The minister might be aware of the comments of Julian Peto, the professor of epidemiology at London University, who has stated that asbestos-related deaths will reach epidemic levels by 2018, outstripping accidents as the prime cause of early death. That is backed up by the Cancer Research Campaign, which claims that 250,000 western Europeans will die of mesothelioma by 2035. Such statistics are very worrying.
Finally, my constituent has now suffered the additional stress of having to argue her case for industrial injuries benefit and to prove how she contracted the condition, despite the fact that it happened 50 years ago. Surely that cannot be right. Would not a system of no-blame compensation be more appropriate in these cases?
In conclusion, I ask the minister to inform us of the state of research, to make representations to the social security minister about industrial injuries benefit and to investigate the whole issue of compensation.
I also congratulate Duncan McNeil on securing this debate and on his very clear exposition of the problem of mesothelioma. This issue is different from many other medical issues that we have debated in this chamber, in that this condition is a lethal disease with an absolutely clear cause. That is an important distinction.
I first became associated with the problem of asbestosis or asbestos-related diseases in the late 1970s when I worked for a construction company in Glasgow and discovered that its asbestos division did not have proper medical supervision. The laws on protection from asbestos were only then becoming totally clear.
This Government is faced with many competing claims for compensation on the grounds of disease caused by past events. We have already examined hepatitis C and haemophilia, and the Health and Community Care Committee is currently considering the measles, mumps and rubella vaccine and its proposed but unproven link to autism. Those are all difficult issues for individuals; however, it is important for the Parliament to investigate them sympathetically.
Although we will be asked to consider other conditions, these conditions are evident but not as complex. For example, the miners are now receiving compensation for lung disease. In their case, conditions of work were a major contributing factor, but because of the contribution of smoking and the general environment, it was difficult to address compensation. I am proud that the Labour Government has grappled with the problem. Although the process can be frustratingly slow for some of my constituents and their families, we are getting there.
Mesothelioma can be caused only by asbestos, so there may be issues of fault. Duncan McNeil alluded to them and cases that have been settled have been cited. We need to consider no-fault compensation, because, as Duncan McNeil said, the families cannot wait. There is a system for such compensation, but the Pneumoconiosis etc (Workers' Compensation) Act 1979 is not sufficiently sympathetic to cases of this sort. It does not allow us to proceed with the expeditious approach that Duncan McNeil and I would like.
When mesothelioma has been diagnosed, compensation should be immediate and generous. We need a society in which it is clear that people who suffer severe and serious consequences as a result of work, who were neither offered guidance on nor made aware of the disease that could be caused, should be compensated. The law will deal with the question of negligence in relation to known risks, which is a different matter, but the whole area of no-fault compensation in the workplace and associated medical risks should be re-examined.
The Government should perhaps consider compensating individuals on a no-fault basis and then seeking to recover funds from those who may have been negligent. That would be a different approach, which would remove the fundamental problem of companies that offer defence taking years to settle claims, even when previous cases have highlighted that the case law is correct. It seems to me that insurers, for goodness knows what purpose—probably profit—decide to delay compensation beyond a point that is reasonable for families.
I, too, welcome Duncan McNeil's debate, which raises awareness of mesothelioma. Clydeside Action on Asbestos is addressing many issues. I congratulate it on the excellent work that it has done.
Today, I met Mr and Mrs Brown from Ayr who, I am delighted to see, are in the gallery. Mrs Brown's father, Edward McCleish, died of the disease 20 years ago today. It is fitting that Mr and Mrs Brown are in the gallery tonight with their daughter, Adele, because 20 years later, they still feel that an injustice was done, and they want to lend their support to those fighting for recognition and compensation. Mrs Brown, who is a nurse, described her father's inch-by-inch death. Other members acknowledged the slow process.
I was shocked to read a letter sent to Mr McCleish's widow—Mrs Brown's mother—dated 24 July 1984, which reads:
"We have to advise you that the Insurers have made a purely nominal offer of £100 in connection with your claim. In all the circumstances, we have no doubt that it is an offer which ought to be accepted".
I hope that the widows and families who were persuaded to accept such paltry payments will also be acknowledged in the new campaign.
I have also spoken to Gordon McVie of the Cancer Research Campaign, who stated his concern that people are still working on buildings and ships with asbestos without being given the proper advice or taking the proper precautions. Indeed, he mentioned that some companies are exporting asbestos for use in developing countries. I understand that trials are being carried out in Newcastle that offer a glimmer of hope of improving treatment and prolonging life, but that it will be five to 10 years before gene therapy, although exciting, is widely available.
It is interesting that medical research has been done on work-related cancers for more than 200 years. I hope that this debate will help to support not only those suffering from mesothelioma, but those likely to suffer from that condition in future. I also hope that appropriate health and safety checks are done to ensure that our problems are not exported to other countries and that employers take adequate measures to protect staff in the light of the known dangers of asbestos.
I will be brief, but I also want to congratulate Duncan McNeil. I can identify with many of the comments made by Richard Simpson. Quite honestly, the time spent and the delays encountered—sometimes deliberately—are deplorable. There will be some difficulty in relation to people who have changed employers, but there is no excuse for the delays.
Richard Simpson mentioned private companies, but I must point out that the issue relates to the public sector as well. I served an apprenticeship in the dockyard at Rosyth. There was an absence of information on asbestos, and I am sure that many of my fellow workers faced many dangers, in line with those in other shipbuilding industries.
For the benefit of the minister, I want to raise a local point. In Troon, a site that has been contaminated with asbestos is being worked on. Ultimately, the site will be encased, which is to be welcomed. At the same time, it will take a lot of construction work and effort to move the earth that is contained in that site.
I ask the minister to take on board the warnings that we have heard today and to ensure that the Health and Safety Executive takes an interest in the activities on that piece of land. The evidence of asbestosis, as I prefer to call it, in Troon demonstrates that the disease exists in former shipyard workers in that area. There is a feeling in the community that the disturbance of that land could bring its own dangers. Some assurances on the subject from the minister would be most welcome.
I appreciate that the issues raised by Duncan McNeil today are mainly related to justice rather than to my area of responsibility. It was intended that the Deputy Minister for Justice would wind up. Unfortunately, Iain Gray has had to attend another engagement this afternoon and I am therefore responding.
However, some health matters arose and I will respond to those first. Most research is driven by external bodies such as the Cancer Research Campaign and the drug companies. Clearly, however, cancer is a priority for the Executive and I am sure that the chief scientist's office would welcome applications for research into this dreadful condition.
Mary Scanlon mentioned the Newcastle trial, which is a good example of a small-scale trial. It will proceed to a larger-scale trial in the near future. I was concerned to hear what Mary Scanlon said about health and safety checks following her conversation with Professor McVie. I will follow that up now that it has been drawn to my attention.
I congratulate Duncan McNeil on securing this debate today and on putting forward the case in such a moving manner. The Executive recognises the plight of sufferers of mesothelioma and their families. It is a dreadful disease, and where it is caused by the fault of others, sufferers should, of course, be able to obtain compensation for their loss and suffering as quickly as possible. No one could say otherwise.
In recognition of that, the Government of the day introduced the Pneumoconiosis etc (Workers' Compensation) Act 1979 to provide a UK-wide compensation scheme to cover this and similar diseases. Since that act came into force in 1980, more than 12,000 claims have been made, more than half of which have been settled. The total cost of the scheme in the UK to the end of March this year was £72.5 million. The average cost of payments to sufferers and dependants respectively is £15,169 and £6,561. No separate figures are available for Scotland.
However, the scheme has limitations. It was designed as a safety net for cases where there was no longer any employer against whom a claim could be made. Many claims against employers are taken to court under laws dealing with liabilities for personal injuries, just as other claims for industrial injuries or diseases are. It is those cases that Mr McNeil is primarily concerned with today. I have listened to what he has said, particularly about the length of time that those cases take to reach a conclusion.
These cases are not always easy to resolve. It is inevitable that time is needed to do what is necessary to prepare the claims and to deal with all the complexities. However, I am concerned that cases should proceed as quickly as possible to resolution. It is utterly unacceptable that employers or their insurers should deliberately delay in the hope that the sufferers of this terrible disease will give up or, in some tragic cases, die before the cases can be resolved. It is particularly unacceptable if the purpose of employers or their insurers is to alter the make-up of the claim or to reduce its value.
Even though the Damages (Scotland) Act 1993 has amended the law to transmit to the executor of a deceased person the like rights to damages, the effect of the current provisions is that a claim by the executor does not necessarily have the same value as the claim that might have been pursued by the deceased would have had. There is a balancing mechanism that enables relatives to claim damages for loss of support, distress and anxiety, grief and sorrow, and loss of society, but they tend to be less than the full original claim. Such an approach by employers or their insurers would deprive the sufferer of the benefit, support and care that would be available as a result of any award of damages. Ministers will consider carefully evidence of any delaying tactics.
I acknowledge what Mr McNeil said about the use of blanket denials. As I understand it, some employers simply deny all liability and all the factual statements that claimants have made. That means that in every case the claimant is required to prove every fact and all elements of the monetary claim for damages.
Employers who take that position leave themselves open to an application for a summary decree on the grounds that a defence to the action has not been disclosed. It is difficult to believe that, in cases where a blanket denial is used, the employer is completely unable to agree to anything that the claimant says. It is surely in the general public interest that employers should seek to minimise the differences between them and the claimants, to narrow down the areas of dispute and to seek routes to speedy settlement, notably on the amount of damages.
Although the management of the claims by the court is a matter for the court to decide under its own rules and practices, I urge all those who are involved to ensure that cases proceed as quickly as possible. There is no reason why cases cannot be dealt with reasonably expeditiously. The rules and administrative practices of the Court of Session, where most cases are raised, allow 13 weeks for the parties to state their case in written pleadings, and 19 weeks thereafter to prepare for a proof or jury trial. The 19-week period is a target that has been agreed by the Lord President and ministers. Accordingly, the court is ready to hear cases after about 32 weeks, which I consider to be sufficient for even the most complex issues that are involved to be properly focused.
I am aware that most cases take longer than that to reach a conclusion. That is usually because the court has been persuaded on the application of one of the parties that it is in the interests of justice to allow more time for case preparation. That is not a matter in which I can directly interfere, although it would be appalling if such applications were used as a device by employers or their insurers to delay. Other matters, such as the availability of chosen counsel, can also result in delay. There is more to consider than just the approach that is taken by employers when met with a claim.
Although it would not be proper for me to seek to influence the private nature of relationships between parties and their legal representatives, I would expect all those concerned to recognise their responsibility to the public and their clients to take cases forward as quickly as possible. It is open to the court to make an interim award of damages in certain circumstances but only where employers admit liability. That may be a matter for further consideration.
It has been suggested also that more use should be made of juries to assess these claims. The right to seek a jury trial exists in the Court of Session. The case of Gibson v McAndrew Wormald, reported in the 1998 Scots Law Times at page 562, is an example of an asbestos-related case being sent to a jury. However, the appropriate mode of inquiry is again a matter for the court to decide and there is a view that the complexity of these cases renders them unsuitable for lay jurors to determine. I can understand that view but it is a matter for the court, and properly so.
More generally, I also support the proposals contained in a report of a working group, chaired by Lord Coulsfield, aimed at speeding up the resolution of reparation cases in the Court of Session, including cases of this sort. Those proposals are out to consultation at the moment, and ministers will do what they can to support the initiatives being considered.
Lord Coulsfield's proposals involve the court taking a more active part in ensuring that time limits for case preparation are adhered to and include setting a date for the hearing of the case at a much earlier stage in the proceedings than is done at present. They also call for a fuller disclosure of the position of defenders or employers, particularly with regard to the quantification of compensation. The whole point is to encourage parties to settle earlier, because in more than 90 per cent of cases that is what ultimately happens.
In conclusion, I would like to say that I fully understand and share the concerns raised by Mr McNeil. While I recognise the difficulty of these cases for the courts, and I am satisfied that the courts seek to deal with the cases as quickly as they can in many cases, I urge all concerned, particularly employers and their insurers, to seek all means to speed up a solution of such cases.
Where possible, I would hope that those concerned could negotiate settlements. At the very least, they should co-operate with the courts in minimising the delays in bringing such cases forward. The courts obviously recognise the need to take steps to speed up procedures for cases such as these. The work of Lord Coulsfield's group is an initiative that I welcome and fully support.
Meeting closed at 17:47.