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Respiratory Diseases of Mineworkers

11.1 p.m.

Lord Lofthouse of Pontefract rose to ask Her Majesty's Government what progress is being made to deal with claims for compensation by mineworkers who are suffering from respiratory diseases such as bronchitis and emphysema.

The noble Lord said: My Lords, I am grateful that so many noble Lords have shown an interest in the debate which is important to disabled miners. Your Lordships will be aware that on 25th November 1992 the Industrial Injuries Advisory Council report recommended that chronic bronchitis and emphysema should be listed as a prescribed disease in coalminers. That recommendation was not implemented until 13th September 1993. There was great concern among disabled miners suffering from this disease that there was a deliberate policy by the then government to delay the implementation because the longer it was delayed more miners suffering from the disease would have died and this would of course have lessened the financial cost to the Government. This fear seemed to have foundation, when a leaked document came into my possession on 29th October 1992 from the Department of Social Security to the Department of Trade and Industry suggesting the delayed implementation of the recommendations of the report for as long as possible because the longer the delay the more miners would have died. I am sure noble Lords will appreciate how suspicious the miners are now. However, I want to assure miners that the present Government are not getting up to such tricks as did the previous government. I have satisfied myself through meetings with the Minister of State in another place, John Battle, that that is not the case.

However, since the awards by the Industrial Injuries Advisory Council many miners have placed claims against the British Coal Corporation for compensation. Arising from those claims I corresponded with the then Lord Chancellor, the noble and learned Lord, Lord Mackay of Clashfern, on Thursday 9th March 1995, and Mr. Tim Eggar, Minister of State at the DTI, on Wednesday 22nd March 1995. I expressed my concern that if the claims were to be heard by a High Court hearing it would cause long delays and, considering that many of the miners suffering from bronchitis and emphysema are elderly, infirm and in some instances terminally ill, any long delayed High Court hearings could deny them the immediate substantial compensation to which they are entitled. I requested that instead of preparing for years of litigation, with trials of simple cases taking about eight weeks or more, I would consider it equitable and consensual for defendants to give earnest consideration to setting up a bronchitis/emphysema compensation scheme. This would avoid massive litigation costs and the subsequent enormous expenditure on legal aid costs over the years.

I regret that my suggestions were not accepted. Had the previous government taken on board my proposals, clearly the present Government would not have inherited a liability running into several billions of pounds. Arising out of this, the miners, as a last resort,

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pursued legislation with the utmost reluctance, supported only by the Legal Aid Board and the appropriate union. I was delighted that Mr. Justice Turner, sitting in the Royal Courts of Justice in London on 21st January 1998, ruled in the miners' favour. In his summary, his Lordship was extremely critical of the British Coal Corporation both in respect of health and safety and, indeed, its defence of the litigation.

The present position, as I understand it, is that it has been agreed by the two sides that in principle there should be a single medical assessment process rather than either side proceeding on the conventional basis of separately obtaining medical evidence and then exchanging reports. The reason for this is that it removes the need for two examinations. They feel that this in turn will speed up the assessment of individual cases and the assessment of damages. I personally do not believe that it would speed it up sufficiently.

The speed of delivery of medical assessments is a key issue because there are now 60,000 claims, with a potential of 120,000 claims, and many of those people are elderly. The DTI is concerned that every signal claimant who wishes to claim full damages under a handling scheme should, as part of the medical assessment, undergo a physical examination by an appropriately qualified physician. The medical advice I have received states that in a large number of cases this is not necessary and will delay assessments significantly.

Why will there be a delay? I am informed that there are approximately 500 appropriately qualified respiratory physicians available in the country. Your Lordships will readily identify that if all the 500 physicians were employed on this work alone, which is very unlikely, it would mean 1,200 cases for each physician. If there are to be 120,000 applications the number rises to 2,400 for each physician. One can imagine the delays that will occur.

Considering that I have received medical expert advice that it is both fair and reasonable to undertake paper assessments in a large number of cases, this would streamline the assessment process and ensure that compensation is paid as quickly as possible. I ask my noble friend the Minister to give consideration to that.

I also understand that there is a distance between the two sides as to how retrospectively to diagnose chronic bronchitis. I understand that the DTI is concerned that there must be some criteria. I can well understand that, but I feel that that is going to be difficult. Chronic bronchitis was so common in many mining communities that it was thought by the men not worthy of medical attention and some general practitioners who were faced with a patient with a condition often thought it not worthy of a note in their medical records.

I understand that the DTI is seeking a discount of 15 per cent. from damages to reflect the benefits of handling agreements. The benefits are illusionary if the process is not as quick as it could be and if the medical assessment is full and comprehensive. The DTI has indicated that 15 per cent. is not its final position. But if there is to be a full and fair medical assessment in all cases where full damages are claimed it is difficult to understand why any discount is justifiable.

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It is fairly obvious that the present arrangements will cause considerable delay, which will mean that many miners suffering from the disease will have died while the negotiations are in progress. I ask your Lordships to bear in mind that it is calculated that since the judgment 10 months ago, 1,000 people have died, at an average of 20 per week.

I believe that the procedures could be speeded up. Noble Lords may recall that during Questions on 29th January of this year I put a suggestion to my noble friend Lord Clinton-Davies. It concerned the men who had already been certified in accordance with the Industrial Injuries Advisory Council's recommendations and where it had been proved that they had been suffering from bronchitis and emphysema. They had been medically examined and assessed and given a percentage assessment of disability. Those men then received industrial injuries benefits. Surely it is not beyond the bounds of possibility that those men could be accepted as suitable for the payment of compensation. They have gone through the medical routine; they have been examined; and they have been certified and awarded a pension. Surely it would be a simple exercise to pay compensation to those men without dragging them through the further procedures, if and when the examinations can be carried out. It seems simple to me. I appreciate that not all the claimants will have been examined, but the majority have been.

In conclusion, I should tell the House that I have discussed the matter recently with the Minister of State in another place, Mr. John Battle. He is in a unique position. It is not often that one finds a Minister who has money available without having to go dashing to the Treasury. I understand that he has about £2 billion at his disposal and he is keen to spend it and pay it out to those miners. However, he has been held up by arguments between lawyers.

Some heads must be knocked together. There is no doubt that those lawyers will be earning vast sums of money from the exercise. I have formed an opinion of the people whom I have met in my area. They seem quite genuine and they want to help the miners. However, others will be in it simply to see how much they can obtain for themselves. There will be a colossal bill. The Minister of State has given me assurances and I know that he is keen to recompense the miners. Surely a formula can be produced which will enable as many of those men as possible to be paid before they die of that terrible disease, as have many of their predecessors.

11.9 p.m.

Lord Mason of Barnsley: My Lords, I shall be brief. First, I pay tribute to my noble friend Lord Lofthouse of Pontefract. He made the first presentation of a Bill in another place which asked that emphysema should be recognised as an industrial disease qualifying for compensation. That was way back in October 1982. He has pursued that issue doggedly, with five Ten-Minute Rule Bills in another place, and, incidentally, his sponsors have been my noble friends Lord Hardy of Wath and Lord Ashley of Stoke and myself. My noble friend Lord Lofthouse also prepared learned papers on

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the subject and persuaded the Industrial Injuries Advisory Council to undertake the studies. He is undoubtedly the miners' champion in this cause.

My noble friend is fully aware of this issue both from his experience of working underground and from observing some of his very ill and breathless constituents. And so am I, having worked for 14 years underground and now seeing so many of my former pit mates slowly dying from excess dust in their lungs. Emphysema is a slow and painful killer of coal-miners. Therefore, coming from the coalfields, I am pleased that it has been recognised as an industrial disease. But I must explain to the Minister that I am much concerned that many claimants, and unfortunately the widows of emphysema victims, are having to wait so long for payments.

I know that, since judgment was made, up to 100,000 claims have been submitted, and perhaps to date more than 10,000 recognised. Since then there have been three separate hearings and the involvement of plaintiffs' solicitors groups. Can the Minister say what is causing the frustrations and the delay? Are the plaintiffs' solicitors groups partly responsible? I gather that at the last hearing on 1st October some agreement may have been reached to streamline the procedures. If so, can the Minister give us an update?

Finally, apart from the plaintiffs' solicitors groups involved in the preparation and presentation of claims, can my noble friend's department publicly advise claimants to avoid lawyers who are allegedly charging inflated fees and also failing to get proper compensation payments? Indeed, some seem to be exploiting the system and cheating disabled miners and their widows. Some ministerial guidance would help, and it would be welcome.

11.17 p.m.

Lord Mackay of Drumadoon: My Lords, I seek to make a short contribution to this debate against the background of having acted in the past, in Scotland, as a personal injuries lawyer for miners suffering from emphysema. I have been down a coalmine only once in my life, many years ago when I was a student at the University of Edinburgh. I remember the visit vividly. I remember feeling a certain apprehension for my own physical safety and I remember in particular, over the days that followed the visit, every time I blew my nose my handkerchief would fill with the coal dust, to which I was not accustomed.

It struck me then, as it has struck me ever since, that miners who work underground for many years must have inhaled a great deal. Those memories never escaped me in my years as a personal injuries lawyer when I acted for those who suffered from emphysema. When they came to see me their disability was obvious. Their shortness of breath was to be heard and observed. When they came into the room where I met them, it frequently took them some minutes to recover from the physical exertion of having walked from a waiting room, not even up a set of stairs, to meet with me. And on occasions when the emphysema had developed to a

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severe extent, it was necessary for myself and my instructing solicitors to go to their home to meet with them there. Indeed, on occasions it was necessary for the court itself to go to the home of a miner because it was physically impossible for the miner concerned to come to court and give evidence. Those were extremely awkward experiences. I always felt a sense of invasion of the privacy of a miner's home, particularly as a large number of people had to collect in a small room which was frequently heated to a high temperature to help the individual concerned deal with his disability.

In each and every one of those cases the miners concerned were worried about their future. They knew that they were suffering from a progressive illness; they knew that that illness affected their current enjoyment of life and would continue to do so to a greater extent in the years ahead. In some instances the miners concerned were worried that they might not survive until their court case had reached a conclusion. Those were concerns which were shared by myself and my solicitors as a very understandable desire to ensure that the cases were concluded if at all possible before the miner in question passed on.

Against that background, I find it a matter of grave concern that so many claims remain outstanding. Just who is responsible for that being the current position does not, to some extent, matter. However, the fact is that there are at least 60,000 and possibly up to 100,000 claims still to be resolved. As the noble Lord, Lord Lofthouse, has already observed, the hard and stark truth is that, unless this issue is dealt with as a matter of urgency and a greater speed of progress is achieved, a highly significant number of these claimants will die before their claims are resolved.

I was particularly shocked to be informed by a Scottish solicitor to whom I have spoken over the past few days that, at the current rate of progress, officials in the Department of Trade and Industry are suggesting that over the next 12 months they may dispose of only a maximum of 12,000 cases. At that rate, it will take at least five years for all outstanding claims to be settled. When one bears in mind that these claims are against the British Coal Corporation and date back many years, it is most disturbing.

I also find the unfortunate attitude on the part of DTI officials slightly disturbing. They appear to be criticising miners' solicitors for the vigour with which they are pursuing their claimants' cases. Such criticisms have to some extent been reflected in the speeches already made this evening by the noble Lords, Lord Lofthouse and Lord Mason. If there is any truth whatever in such criticisms, I hope that the Minister will confirm that such complaints will be directed to the respective Law Societies. I say that because it is quite intolerable that any claim should be delayed due to any mercenary motive on the part of the solicitors concerned. From my own personal experience of those who act for miners in Scotland, I have to say that I find such claims very difficult to believe. Indeed, they are as anxious as anyone that the claims should be settled. Like many personal injuries solicitors, they have more than enough business to be dealing with without unnecessarily protracting these cases.

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Therefore, I hope that the Minister will be able to inform the House on a number of points in his reply. First, perhaps he can tell us when he expects DTI officials to be able to reach final agreement on the medical assessment process for the assessment of compensation payable. Secondly, can he confirm that the Government accept that claimants will receive full common law damages and that there will be no question of their damages being subject to a 15 per cent. discount, as mentioned by the noble Lord, Lord Lofthouse?

Thirdly, I hope that the Minister will be able to assure the House that the cases of widows will be given particularly urgent attention. I understand that there is a most unfortunate dispute in this respect, which depends upon the contents of death certificates. I believe that interim payments are being made if the death certificate includes the word "emphysema", but that there is some dispute as to whether such payments should be made if the entry on the death certificate reads "obstructive airways disease". Many doctors take the view that there is absolutely no difference between emphysema on the one hand and obstructive airways disease on the other. If that is their attitude in completing death certificates--whether or not they are right--it is singularly unfortunate that widows should suffer further, having already suffered the loss of their husbands.

In conclusion, perhaps I may make a few points about the Scottish claims which form part of the total outstanding. I understand that they may amount to 10 per cent. or 15 per cent. of the outstanding claims. Lawrence Lumsden, who is a very experienced solicitor in Edinburgh and has handled the miners' cases for many years, has expressed the concern that the group of officials in Sheffield which is negotiating these claims on behalf of the DTI does not include a senior official knowledgeable in the law of Scotland and knowledgeable in how cases are handled by the Scottish courts. This has led to difficulty in two respects. First of all, as the Minister may be aware, the procedure for awarding damages in fatal cases in Scotland is different from that which applies in England and Wales. Secondly, whilst there have been test cases in Scotland these have been sisted or stayed by the courts pending the outcome of the test cases in England. Whilst substantial payments have now been made to some claimants in England, I understand there has not been similar progress--


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