Response to Pleural Plaques Consultation Paper CP 14/08,dated 9 July 2008Submission Regarding Two PolicyProposals Especially Relevant to “Industry”

1This submission responds to two of the five policy proposals set out in theConsultation. They are:“Policy Option: 3 - Description: Changing the law of negligence so thatcompensation can be claimed through the civil courts as was the casebefore the Court of Appeal decision.”“Policy Option: 5 - Description: Financial support in the form of a “nofault” payment for those diagnosed with pleural plaques, due to workplaceexposure to asbestos, both before and after the House of Lords decision on17 October 2007.”

Introduction

To date, debate in the UK has been dominated by UK insurers and trade unionsadvancing traditional UK arguments centered around whether or how much compensation ispayable in a particular setting. Indeed, in the recent Scottish Consultation on pleural plaques, thevast bulk of the submissions were from trade unions and insurers, with only one brief paper from“industry.” This submission seeks to present different issues and new information relevant forsome if not all employers and manufacturers that fall under the general label of “industry.” Thissubmission seeks to present issues relevant to “industry”

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by explicitly identifying “industry” concerns that are sometimes significantlydifferent from the interests of insurers; differences arise because some once dominantEU insurers have failed financially, and other insurers are restructuring or usingschemes to limit their reachable assets, thereby actually or potentially leaving“industry” to pay claims expenses that were thought to be insured;

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by showing that the Consultation does not acknowledge that Cape Industries andTurner &Newall (T&N) were the overwhelmingly largest UK miners, manufacturersand distributors of asbestos, and used vast amounts of the exponentially more “toxic”blue and brown forms of asbestos fibers, but T&N is insolvent and Cape entities haverestructured to limit assets available to pay for injuries, thereby leaving currentmembers of industry to shoulder financial burdens that should in fairness fall on T&Nand/or Cape if plaques payments are to be made;

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by showing that there are lessons to be learned from the dismal experience in theUnited States as its courts and industry were overwhelmed by waves of claims fornonmalignant conditions, and by showing that the Government should take itsdecision in light of the reality that litigation and claiming entrepreneurial nowinvolves global alliances among claimants’ firms and the industry is well-financed, asis evidenced by Allianz and others raising pools of capital to invest in litigation, and

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by presenting scientific information to show that:

the Consultation significantly underestimates the number of plaques cases thatwill be identified using up to date science, and so significantly underestimatesthe future expense of paying compensation for plaques under Policy Option 3or 5;

the Government should focus compensation and attention on the growingwave of asbestos-related cancers instead of non-malignant conditions;

in fact, rapid scientific advances already allow the identification of so many“risk” factors and “markers” that sound social policy should not seek to paycompensation for risks or “markers,” and the better policy instead would befor the Government to consult with scientists, unions, industry and insurers onhow to invest in accelerating scientific research, treatments, and drugs thatoffer real hope that the future may allow for at least some cancers to bemanaged and/or delayed, if not actually “cured.”