HC Deb 18 March 1997 vol 292 cc755-65
Dr. Godman

I beg to move amendment No. 3, in page 17, line 15, at end insert— '3A. Any payment to the injured person arising out of their contracting mesothelioma.'.

Mesothelioma is a pernicious form of cancer. I am not a medical man; my doctorate results from a thesis on the development of steam trawlers in the port of Aberdeen and elsewhere. This, however, is a serious matter and the prognosis for victims is almost always grim. I believe that there is no cure for the ailment.

In relation to the pursuit of a legal claim on behalf of a mesothelioma victim, is it the case, or was it the case hitherto, that if such a victim died before he was examined by a medical specialist employed by the Benefits Agency, any legal claim would fall, despite the fact that the death certificate stated that the death was due to mesothelioma? I sincerely hope that that is not the case now, but I seem to recall that it was hitherto. What is the situation if an examination has not been carried out? In Scotland, any death resulting from the ailment legally requires a post mortem, so a death certificate could state that mesothelioma was the cause of death.

Mr. Roger Evans

May I seek clarification in the interests of attempting to answer that question? Is the hon. Gentleman referring to a claim for some form of benefit from the Benefits Agency, or a legal claim for damages?

5.30 pm
Dr. Godman

I do not wish to be awkward, but both cases interest me. Naturally, the question concerning benefits looms larger than the second question. I hope that a death certificate is a legally valid document in terms of determining a person's death and that a legal claim would not fall because the person had died.

My hon. Friends with Clydeside constituencies and I share an abiding concern for the poor, unfortunate people who fall victim to mesothelioma. Victims and their families must be protected, not just by local Members of Parliament, but by the Government. My hon. Friend the Member for Clydebank and Milngavie (Mr. Worthington) has a long and honourable record in that regard. As the Minister well knows, my hon. Friend and I have been closely associated with Clydeside Action on Asbestos, a remarkable group of people who came together because of illnesses to which they and their families had fallen victim. They are remarkable campaigners, on behalf not just of their friends and families but of people throughout Scotland and elsewhere.

On Second Reading, my hon. Friend the Member for Clydebank and Milngavie said that the asbestosis issue interested him because, regrettably, Clydebank in my constituency is the national leader for male deaths from mesothelioma. Our death rate is 11 times the national average because of the deathly cocktail in our background of shipyards, ship repairing and an asbestos factory. Delete "asbestos factory", and my hon. Friend could have been speaking about my constituency. I am sure that similar problems are also characteristic of the constituency of my hon. Friend the Member for Barnsley, West and Penistone (Mr. Clapham) in Yorkshire.

My hon. Friend the Member for Clydebank and Milngavie went on to say: Between 1976 and 1991, in Greater Glasgow, there were 500 deaths from mesothelioma alone … According to the Government, the people who died came into contact with the dust between 50 and 60 years ago; as has been said, asbestos-related diseases are by far the biggest industrial killer, and the problem is getting worse.

In specific relation to my amendment, my hon. Friend said: there will be between 1,300 and 3,000 deaths from mesothelioma in 20 years' time". An eminent consultant with whom I spoke in Inverclyde Royal hospital trust in Greenock this morning said that, in his opinion—he deals with about 10 cases a year and says that the number is increasing—we shall reach a plateau in 2005. We shall not see the end of the disease for a considerable time yet.

My hon. Friend the Member for Clydebank and Milngavie said that that figure dwarfs all industrial deaths, deaths on the roads and deaths from any similar cause. If we take into account the fact that there are estimated to be one or two deaths from asbestos-related lung cancer for every death caused by mesothelioma, we realise the scale of the continuing problem."—[Official Report, 25 February 1997; Vol. 291, c. 188.]

Mr. Frank Maguire made a similar remark in his letter to the Minister. He said: With respect, you misunderstand the distinction of mesothelioma from other cases. It is becoming increasingly the case that the younger claimants are suffering from mesothelioma. We are now encountering cases where a mesothelioma victim is in their 40s. There would therefore be and are a large and increasing number of cases where there are claims for wage loss and where the victim has been in full employment. The Act will do nothing other than hinder resolution of these cases.

The problem is found not only in shipyards. Two local men came to see me last Friday at my surgery. They are Caledonian MacBrayne employees and crew members of the Pioneer. They went on board the vessel recently and became alarmed when they saw a joiner working, equipped with a respirator and goggles. When they asked him why he was so equipped, they were told that there was strong evidence of asbestos in the deckhead materials lining the formica. There was a substance called ammonite, which gives rise to asbestos dust. That was confirmed by an official of Caledonian MacBrayne, who stated that health and safety inspectors had been called in to test for asbestos.

We must remember that there is no immediate indication of asbestos. The company told those men: As a result of compressed asbestos panelling being found on MV 'Pioneer', the company is aware of individual concerns with regard to health and the effect that asbestos may or may not have In order to alleviate such concerns, the company offer, at no cost to the individual, the opportunity to receive an x-ray at Greenock health centre. Should an employee wish to take up this facility he or she should present themselves at the health centre and at Dr. Hulme's reception where the necessary arrangements have been made.

We are, therefore, not speaking only about employees who were caught up in such circumstances years ago. That incident took place just a few days ago when the ship was being repaired in a yard just a few miles away from me.

Another note to the employees stated: As a result of compressed asbestos panelling being found on board M. V. "Pioneer", the company by way of compensation to cover damage to clothing incurred by crew members, offer the sum of £100.00. The award is given in full and final settlement of any claim made in this respect.

I should be grateful to the Minister if he would bring the case to the attention of his Scottish Office colleagues. If the Health and Safety Executive is involved, there may be a case for the incident being reported to the procurator fiscal in Greenock or Troon. The Minister should respond positively to the amendment, as he did earlier.

I refer again to the observations of the eminent consultant whom I questioned today—a man I have known for some years. He told me that he deals with 10 cases a year in the Inverclyde area. Not just shipyard workers, ferry crews or others in similar industries are involved; a recent patient of his was a bus conductress. Another victim was the wife of a shipyard worker. It was found that the regular hand-washing of her husband's protective clothing led to the woman contracting this dreadful form of cancer. Another patient was the secretary to the managing director of a shipyard. She, too, contracted this appalling illness.

The consultant told me that a plateau in the number of cases may be reached in 2005, and that there was a time lag of 30 to 40 years before onset. The average time of survival after diagnosis is nine months. Mesothelioma is one of the most resistant of all cancers. Less than 25 per cent. of patients get relief from pain by way of radiotherapy. Some of his patients suffer the most appalling pain from the disease, and radiotherapy is not effective in 75 per cent. of cases. He is one of our foremost consultants in the west of Scotland, but he said that, with the science and medical knowledge currently at our disposal, there is no cure. There is a case—south of the border, I think—of a woman who has managed to survive for two years. The consultant was astonished that she had survived for so long, as most patients die within six to 12 months.

For those reasons, I impress upon the Minister the merit of my amendment. He knows that I have been guided by members of Clydeside Action on Asbestos, Frank Maguire and the cases that have come to my—we are supposed to call them advice bureaux now, but being old Labour I still call them surgeries. I have a constituent who has that complaint, and it is heartbreaking to see. A friend of mine in my constituency, a shipyard worker, recently died of the disease.

There is a powerful case for giving victims the support that I seek through the amendment. The Minister, being skilled in both parliamentary draftsmanship and the law, will tell me that my amendment is, as we say up our way, going to Gourock—in other words, cock-eyed. On behalf of all the people in our Clydeside constituencies who have suffered grievously from mesothelioma, I want the Minister to give me a positive response. They deserve our continuing and abiding sympathy, and I sincerely hope that the Minister will respond in a way that they and their families deserve. Many victims live their last few months in agony; pain killers and radiotherapy are not much use, and chemotherapy is not used in such cases.

I appeal to the Minister to accept the amendment. I do not want to divide the House. We are speaking of people in dreadful pain, with an appalling prognosis. They deserve his deepest sympathy.

5.45 pm
Mr. Roger Evans

I entirely endorse the graphic description given by the hon. Member for Greenock and Port Glasgow (Dr. Godman) of this class of case and the victims' sufferings. There is no doubt that mesothelioma is a particularly pernicious cancer, as he said. Its effects are as appalling as he described.

Dr. Godman

It is just a minor point, but the Minister will be much more popular in my constituency if he pronounces Greenock correctly.

Mr. Evans

I represent a Welsh seat and we have the same sort of problem. I apologise to Greenock for the discourtesy, which was not intended. It was fair to pull me up for that, and I apologise.

The amendment is important and has been forcefully presented by the hon. Gentleman. I am well aware of the helpful and constructive role of Clydeside Action on Asbestos, the discussions that led to the legislation and the way in which it has developed. When we discussed the previous amendment, I meant to mention Mr. Frank Maguire, whom it is fair to say I have not seen recently, but to whom I had the advantage of speaking during discussions, which were helpful and constructive.

A debate on the Bill was encouraged, which was partly the responsibility of the Social Security Committee. Many practitioners representing different aspects have given their advice to the Government and participated in the discussions.

I was asked whether it was or is the case that, if a mesothelioma sufferer died before examination by a Benefits Agency doctor, the claim failed. I asked the hon. Gentleman to clarify which sort of claim he was referring to—benefits or damages at common law—to which he helpfully replied, "Both."

With regard to industrial injuries disablement benefit, I do not have the relevant expert advice to hand to give a confident answer. I will write to the hon. Gentleman on that matter. With regard to a claim for damages at law, at least in England, the Law Reform (Miscellaneous Provisions) Act 1934 would provide for the survival of the action in certain circumstances to some degree. If there is a widow and dependants, they have a fatal accidents claim. It then becomes simply a question of proof, and no doubt there are other means of proving what happened to establish the cause of action.

The hon. Gentleman invited me to draw the attention of my Scottish Office colleagues to the case that he described. It may assist us all if he would write to them or me. I appreciate the force of his observations.

This is a hard amendment to answer, as the situation is heart-rending. Mesothelioma is an horrific condition. I am advised—I asked for background information of the sort that the hon. Gentleman obtained from his constituent, the distinguished consultant and medical man to whom he referred—that the median time from contracting mesothelioma to death is nine to 15 months, depending on medical opinions. It is possible, I am advised, to contract mesothelioma without exposure to asbestos, but that is very rare. There has apparently been a small number of cases involving children who, as far as anyone is aware, have not been exposed to asbestos.

The number of deaths from mesothelioma is about one quarter, I am advised, of all the deaths caused by asbestosis. Indeed, as the hon. Gentleman again pointed out with considerable force, one of the more horrific problems of the condition is the fact that there is a long period between exposure to asbestos and the striking down by mesothelioma.

I am advised that research by Whitewell and Rawcliffe in 1971 among 52 patients, mainly in Liverpool shipyards, revealed that the mean period between first exposure to asbestos and diagnosis of mesothelioma is 42 years—and that is the mean. That is what is so horrific, why it strikes people in old age and why that group of people was so affected by the existing legislation, which this Bill replaces. I am advised that the range can be anything between 13 and 63 years.

On the face of it, with that sort of situation, why do I not agree to the amendment? The difficulty is this: one of the horrific features of asbestosis is that one does not know how and when death will follow. Deaths from mesothelioma are about a quarter of all deaths from asbestosis. One of my constituents, whom I was speaking to this weekend, who has contracted asbestosis and who is pursuing his remedies through the courts, told me that one of the more horrific aspects of asbestosis was simply not knowing whether mesothelioma would strike.

One of the problems is that people can die of lung cancer, which is, I am advised, medically a separate and distinct form of cancer, as well as a result of asbestosis. Of course, even if they do not die of either of those two conditions, asbestosis sufferers face other horrific, unpleasant and on-going consequences. I recognise the force of the argument, but I respectfully suggest that it is difficult, if death is the consequence of asbestosis, to single out one particular group, albeit one for which one might reasonably and properly have the greatest sympathy.

Mr. Clapham

On mesothelioma, I think that the Minister will find that the Benefits Agency will take on a posthumous case. If that proves not to be true, will the Minister consider referring the matter to the Industrial Injuries Advisory Council so that we might get a decision on how the issue should be tackled? It is an important issue.

Mr. Evans

I am not entirely clear of the point that has been raised. The point that I was asked about involved someone dying of mesothelioma without medical examination by the Benefits Agency doctor. That is a specific point. I think that the hon. Gentleman is now suggesting a slightly broader point. I am aware of the considerable concerns on mesothelioma. It is the function of the Industrial Injuries Advisory Council to keep Ministers advised on these matters. If the hon. Gentleman will write to me with his specific concerns, I will happily consider them and ask the council specifically to advise.

I point that I was developing was that it was difficult to distinguish one class of asbestosis sufferer from another, but it should also be borne in mind that there are other equally horrific and fatal forms of cancer which can result from exposure during working time and which cause death. A classic example is exposure in the dye industry, which causes bladder cancer much later. I am suggesting, therefore, that this is an area in which one is bound to have sympathy for any of the groups of sufferers. It is difficult to make the distinction that the hon. Member for Greenock and Port Glasgow has made.

The hon. Gentleman said—I do not criticise it—that I might find technical difficulty with his amendment. There is one slight technical problem; he has managed to exempt defendants and their insurers in mesothelioma cases from having to pay anything to the compensation recovery unit. I should have thought that he would have wanted to do exactly the reverse: to protect particular sufferers.

For that combination of reasons, although I accept fully the force of the hon. Gentleman's argument, I respectfully urge him not the press the amendment, as I think he said he would not, to a Division.

Dr. Godman

I am grateful to the Minister for his sympathetic response. I am sorry that there is a fault in the amendment—I would certainly not want to push it to a Division with such a fault. I am grateful to the Minister also for acknowledging the devastating nature of this ailment, and hope that the Bill, without my amendment, will give some consolation to the victims and the families concerned. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Order for Third Reading read—[Queen's consent, on behalf of the Crown, signified.]

5.55 pm
Mr. Roger Evans

I beg to move, That the Bill be now read the Third time.

The Bill deals with a discrete and separate part of the social security system. It is probably not a sector familiar to most of our constituents, but it is an area of great concern for those involved in the personal injuries litigation process. A number of hon. Members know a great deal about the subject, on which trade unions classically give much helpful advice to their members. There is a great body of expert advisers in the sector: solicitors, lawyers of one sort or another and people who are concerned with the subject and deal on a day-to-day basis with the system.

The Bill's importance involves the fact that the current arrangements, which were enacted in 1989, succeeded well in doing certain things. It delivered valuable savings to the taxpayer without placing an untoward administrative burden on either compensators or victim representatives. It is worth noting that the Select Committee on Social Security made particular reference to those aspects of the existing scheme. More than £500 million has been recovered since the inception of the existing scheme.

The Select Committee also concluded that the recovery of benefits to prevent double compensation was justified, but it also drew attention to an unintended consequence of the existing scheme: in some cases, it can lead to the erosion of victims' damages for pain and suffering. It is to put that right that the Bill has been advanced and that its Third reading has been moved.

Before introducing the Bill, the Government consulted extensively with interested parties. Two separate exercises were mounted, the first on the implications of the Select Committee's recommendations, the second on the compliance cost assessment. I wish to restate our thanks to all the people who were consulted for the positive responses that we have received. I particularly thank Clydeside Action on Asbestos, which I mentioned earlier.

We have had a constructive dialogue with that group, as well as with other people. That has enabled us to advance our thinking on some important issues.

The consultation process culminated in the introduction of the Bill in another place on 7 November last year, before it was transferred to the House on 21 January. I thank all those who have most carefully followed the Bill in the House and shown considerable and keen interest in the measures proposed. I particularly thank the hon. Members who considered the Bill in Standing Committee.

I have referred to the importance of the Bill. I suspect that that is why it has taken the course that it has.

This important topic has not had a happy past. We are talking about phase three. Phase one existed between 1948 and the coming into force of the present scheme on 1 January 1989. Under the first scheme, the defendant or his insurers were entitled to deduct against special damages half of certain specified benefits. That curious arrangement was condemned by the Public Accounts Committee in 1986. It had the perverse and extraordinary consequence of providing a subsidy out of public funds for the tortfeasor or his insurers. That cannot have been right. The Public Accounts Committee and others consequently recommended that it be changed, as it was in 1989.

The second striking and unsatisfactory feature of the 1948 scheme was that it began with three named benefits that existed at that time. Thereafter, the benefit system altered, with benefit succeeding benefit. The consequences for the arrangement were not clear. As a result, litigation—going in many cases to the House of Lords—occurred on a series of different benefits paid by the Department. Certain issues of day-to-day importance for those engaged in litigation were unclear.

Some classic examples include supplementary benefit, which was introduced in 1966, but not sorted out until 1982. Benefit paid up to the date of a damage award was taken into account, but not thereafter. It was determined in 1980 that unemployment benefit should be deducted in full. It was also eventually decided that statutory sick pay should be deducted in full.

One of the advances in the Bill that I particularly commend to the House is schedule 2, which, for the first time, lists not only the heads of compensation, but the benefits that can be recouped against them or set off. Under the new scheme, the set-off arrangement is specified in detail and a power is provided by regulation passed by affirmative instrument to alter that from time to time. The arrangements between 1948 and 1989 were not satisfactory. We have corrected them and introduced a better mechanism to enable adjustments to be made later, as the benefits system develops.

The main advantage of the Bill is that it protects plaintiffs—particularly asbestosis sufferers whose diagnosis was made in retirement—who suffered enormous recoupment against their pain and suffering damages. That has been put right. The 1989 scheme put more of the burden on the plaintiff. The Bill puts more of the burden on the defendant and, in particular, his insurers.

That is surely right, because the defendant and, by secondary implication, those who cover his risks, commit the tort of negligence—or whatever it happens to be—that causes the injury. It is right that he should bear the greater part of the burden, subject only to a set-off against the plaintiff in circumstances in which the plaintiff might be said to be doubly recovering in a way that would not be fair and appropriate in comparison with an ordinary private contract of indemnity insurance.

The Bill strikes a balance between the parties and for the public, because we have preserved the principle of the protection of public funds embodied in the 1989 Act and extended it. The whole may now be recovered from the defendant and his insurer, subject only to the right of set-off.

I respectfully suggest to the House that the Bill strikes a far better balance between the three parties involved. The plaintiff has a fairer deal in cases that were adversely affected by the 1989 scheme, more burden is properly placed on the defendant and his insurer and the public interest is protected. It would be rash to suggest that the scheme will last as long as the 1948 scheme, which was in force for 40 years. The 1989 scheme was not so long-lived. This time, bearing in mind the long gestation of the arguments and the full discussions and consultation processes that we have had, we may have produced a measure in this important area that should endure at least for a generation and, I hope, for longer. I commend the Bill to the House.

6.4 pm

Dr. Godman

I promise to be exceedingly brief. I am immensely relieved that the Bill is going through, when there are just a few days left in this Parliament. My constituents will be relieved that it is to receive Royal Assent. I have reservations about it, but I shall not voice them now, because I expressed them when speaking to my amendments this afternoon, as well as on Second Reading and in Standing Committee. There are still problems. I am still bothered about delays in appeals. The Minister kindly responded to my concerns.

The Minister said that this is the third stage. The schemes have a remarkable history in our parliamentary democracy, largely because of the lobbying from a number of pressure groups, particularly Clydeside Action on Asbestos. The Select Committee agreed to investigate the modus operandi of the compensation recovery unit. It came up with a first-class report, and now we have the Bill. I have reservations about the Bill, but it demonstrates what can be done when there is good will on both sides of the House. Such good will has been noticeable by its absence during my years here. I give a qualified welcome to the Bill, which will give some relief to many of my constituents and thousands of others in Scotland and elsewhere in the United Kingdom.

6.7 pm

Ms Liz Lynne (Rochdale)

I shall not detain the House. I welcome the fact that the Bill will receive Royal Assent before the general election campaign proper. I am delighted that some of my constituents and people across the country will benefit from it. I have always felt it wrong that any amount over £2,500 was clawed back by the Treasury from injured people in receipt of state benefits. The Bill will be to the advantage of those who have been injured, the taxpayer and the Treasury.

The Bill is long overdue. Let us hope that it helps the injury victims whom it is designed to help. As I said on Second Reading, I am worried about clause 8 and would have liked some changes to it, but the Minister is well aware of my reservations on that, and I welcome the Bill.

6.8 pm

Mr. Clapham

I, too, welcome the Bill, but I would not like the House to run away with the idea that there will not still be substantial deductions. On Second Reading, I put some figures to the Minister that were not as clear as they should have been. He suggested that I should clarify the matter. I ask him to consider the case of someone in his 40s with a multiplier of eight years and earnings of £10,000, giving a loss of earnings of £80,000. In addition, he would have his amount for pain and suffering. Such a serious case would be likely to have to wait some time for the medical evidence to be resolved. The five years deduction of benefit could well exceed five years of loss of earnings and may move towards wiping out most of the person's loss of earnings. I gave the Minister an example of a case in which the deduction for loss of earnings was £50,000.

Mr. Roger Evans

I need more facts to be able to answer the hon. Gentleman's point. Surely the point is that, if the deductions will exceed such a sum, it is likely that there will be serious disability benefits of an expensive nature paid on top of loss of earnings benefits. There is a combination of those two benefits. If disability benefits are being paid, there will be a claim at law for damages for those costs as well.

Mr. Clapham

I take the Minister's point. We are talking, however, about a man or woman having to wait a considerable time for the medical condition to reach stability. During that time, benefits continue to mount, and the result can be substantial deductions, leaving a man or woman with a payment for pain and suffering on which they will have to live. Under the present regime, they would have to continue to draw on that benefit for their livelihood until the amount dropped below £8,000.

Although I welcome the Bill, I have grave concerns about it. I hope that, after it has been enacted, we may be able to return to it and deal with some of those concerns.

6.10 pm
Mr. Nick Hawkins (Blackpool, South)

I welcome the opportunity to make a brief contribution to the debate, because, like Opposition Members who have spoken, I have taken an interest in this matter based on my work over a number of years in practice at the Bar. As my hon. Friend the Minister knows, I used to do quite a lot of personal injury work. It is of concern to all of us who have worked in that field that there is an anomaly, which the Bill happily corrects after many years, as my hon. Friend the Minister explained.

Will my hon. Friend and his officials bear in mind the fact that there will still be some problem cases? I ask my hon. Friend to confirm that he and his officials are prepared to respond on specific cases where there have been problems. He and his officials will be aware that I have a constituent, Mr. Mullender, who had a great deal of difficulty in dealing with officials at a low level in the Benefits Agency. I hope that, if I write to my hon. Friend with some further details, he will be able to respond.

Mr. Roger Evans

I am, of course, happy to respond to any request.

Mr. Hawkins

The Bill achieves the objects that my hon. Friend the Minister set out. There have, however, been a number of concerns to which, in my role as deputy chairman of the all-party group on insurance and financial services, I would like to draw attention.

The results of the consultation exercise from organisations such as the Association of British Insurers and the Law Society are extremely important. I hope that my hon. Friend will continue to look at them carefully as this welcome Bill becomes an Act.

Question put and agreed to.

Bill read the Third time, and passed, with amendments.