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Douglas McAllister (West Dunbartonshire) (Lab)
I have called this Adjournment debate on the subject of the Compensation Act 2006 and asbestos-related lung cancer because I wish to bring to the attention of this House an injustice in the way the law treats victims of asbestos-related disease, and to urge the Government to review the operation of section 3 of the Compensation Act 2006 to ensure that it supports sufferers of asbestos-related lung cancer. A simple change in the law will ensure that all victims of lung cancer caused by exposure to asbestos at work are treated equally to those suffering from mesothelioma.
Although asbestos has been banned in the United Kingdom for more than 25 years, its deadly legacy continues. Each year, around 5,000 people in Great Britain die from cancers caused by asbestos exposure at work. It remains the single biggest workplace killer in the country. In my constituency of West Dunbartonshire, this issue is particularly prevalent. My constituency is among Europe’s worst hotspots for deaths linked to a cancer caused by exposure to asbestos at work, with more than 340 deaths since 1980. I have lived in Clydebank all my life and have seen at first hand the devastating effects of asbestos. This issue is deeply personal to the community I represent. For a number of years I have worked closely with the Clydebank Asbestos Group, an organisation that does so much to fight for truth and justice for sufferers of asbestos-related illness.
Towns like Clydebank, Dumbarton and the surrounding villages were built on heavy industry and, above all, the proud tradition of shipbuilding along the River Clyde. Generations of local men and women worked in the great yards, such as John Brown & Company, and in the engineering works, factories and power stations that supported them. Those industries built ships that sailed the world and powered Britain’s economy, but they also exposed thousands of workers to asbestos without adequate protection. They trusted their employers to keep them safe and, in too many cases, that trust was betrayed.
To give a bit of background, the origins of section 3 of the Compensation Act 2006 lie in a series of court decisions that exposed a serious problem in the law for victims of mesothelioma caused by exposure to asbestos. In the case of Fairchild v. Glenhaven Funeral Services, the House of Lords recognised the unique position that these victims face. Asbestos diseases can develop decades after exposure, and because it is impossible to identify which particular fibre caused the illness, the court accepted that it should be enough for a claimant to show that an employer had materially increased the risk of the disease. However, a later ruling in Barker v. Corus UK created a new difficulty by deciding that employers should be liable only for their share of the risk. In practice, that meant victims could lose a large part of their compensation if some employers or their insurers could no longer be traced.
Parliament recognised that this outcome was deeply unfair and rightly acted quickly to unanimously pass the Compensation Act 2006, ensuring that people suffering from mesothelioma could recover full compensation from any one negligent employer. Section 3 of the Act therefore created a crucial protection. It allows victims of mesothelioma to recover full compensation from any one negligent employer, even if other former employers or their insurers cannot be traced. That reform was passed with unanimous support because Members recognised that people diagnosed with a terminal asbestos-related cancer should not be forced to pursue complex claims against multiple employers while facing an extremely limited life expectancy.
Warinder Juss (Wolverhampton West) (Lab)
My hon. Friend is making a powerful argument. Does he agree that the whole reasoning of section 3 of the Compensation Act was because of the difficulty in identifying employers who exposed claimants to the particular fibres that caused mesothelioma, and that it is a huge anomaly that the section should apply to mesothelioma cases caused by asbestos but not to cases where people have developed lung cancer due to asbestos? This injustice should be remedied as soon as possible.
Douglas McAllister
My hon. Friend is correct, and I recognise his obvious expertise in this matter. I believe that he practised law, and in particular personal injury law, prior to being elected to this House. I thank him for his intervention and for all he does for his constituents in Wolverhampton West.
Madam Deputy Speaker (Ms Nusrat Ghani)
Mr Shannon, were you here at the beginning of the debate? You were 90 seconds late—faster next time.
Jim Shannon
You are very kind, Madam Deputy Speaker—I ran the whole way. I congratulate the hon. Gentleman on bringing forward the debate. Over the years as an elected representative—as a councillor and as an MLA back in Northern Ireland—I had a number of constituents who had unfortunately succumbed to mesothelioma and lung cancer as a result of working in the Harland & Wolff shipyard over the years. The illnesses took 10 or 20 years to catch up with them. Perhaps the Minister could look towards Northern Ireland and what has happened there—as ever, I am trying to be helpful. Northern Ireland has its own set of guidelines, called the green book, for assessing damages. General damage for lung cancer and mesothelioma in Northern Ireland is typically estimated at between £125,000 and £250,000. While symptoms from negligent causes are similar, the distinction between the treatments remains in place. Does he agree, as I think he does, that the loophole must be closed once and for all? Perhaps we can start that tonight by the Minister doing that very thing. Thank you for letting me in, Madam Deputy Speaker —you are very kind.
Madam Deputy Speaker
It would not be an Adjournment debate without Mr Jim Shannon, would it?
Douglas McAllister
The hon. Member is correct to recognise that point. This issue cuts across all nations in the United Kingdom, not least Northern Ireland, with its rich and proud shipbuilding past. I thank him for his considered intervention.
The difficulty is that the principle relating to mesothelioma does not apply to sufferers of asbestos-related lung cancer, despite the fact that the diseases are strikingly similar. Both are caused by asbestos exposure and have incredibly similar symptoms, to the extent that medical professionals struggle to differentiate the two. Both are devastating and often fatal—in fact, around 60% of people diagnosed with asbestos-related lung cancer die within a year, which is a higher proportion than those diagnosed with mesothelioma—yet the law treats the victims of the two diseases very differently when it comes to compensation.
That difference is not based on medical evidence or moral principle; it exists simply because asbestos-related lung cancer cases were not considered when the legislation was introduced in 2006. Does the Minister agree that this situation is irrational and unfair? I emphasise that this debate is not to do with the legality of proving whether the cancer is asbestos related or not; it relates specifically to cases where the patient has been formally diagnosed with asbestos-related lung cancer.
For people with asbestos-related lung cancer, the current legal framework creates a significant and deeply unfair obstacle. In many cases, individuals were exposed to asbestos by multiple employers over the course of their working life. Under the current legal framework, compensation must be apportioned between the different employers responsible according to the extent to which each contributed to the risk of the disease. Victims must therefore bring claims against every employer responsible in order to recover full compensation.
Of course, the problem is that these illnesses often develop 30 or 40 years after exposure. By that point, many employers no longer exist. Companies have closed, industries have declined, and insurance records have been lost or destroyed. As a result, victims are frequently unable to trace every employer who exposed them to asbestos, or their insurer. When that happens, they are able to recover only the proportion of compensation attributable to the employers that can be traced. That means that people suffering from a terminal disease can lose substantial amounts of compensation simply because some negligent employers have disappeared over time.
That double standard of sorts has had profound consequences. In numerous cases, victims have lost tens of thousands of pounds in compensation because former employers could not be traced. The shortfall in compensation payments can be seen clearly. In one case in England and Wales, compensation that should have amounted to £112,000 was reduced by more than £76,000. In another case, a victim lost almost 70% of the compensation that would otherwise have been awarded. Across 33 documented cases concluded over the past seven years, the total compensation lost in this way amounts to less than £900,000, so this is not a vast sum in the context of the wider compensation system, but for the families involved it would make the world of difference to their quality of life at a time of immense hardship.
One case that illustrates the human impact particularly clearly is that of James Leo Heneghan. Mr Heneghan was born in 1938 and spent much of his working life exposed to asbestos dust. He died from lung cancer in 2013. After his death, his son, Carl Heneghan, pursued a claim for compensation on behalf of the family. Six of Mr Heneghan’s former employers were successfully traced and admitted liability for exposing him to asbestos. However, several other employers who had also exposed him to asbestos could not be found, and neither could their insurers. As a result, although the full value of the claim was £175,000, the family received just £61,100. Nearly two thirds of the compensation was effectively lost. Had Mr Heneghan been diagnosed with mesothelioma, a cancer strikingly similar to asbestos-related lung cancer, his family would have received full compensation. The disease did not affect Mr Heneghan any less severely because some employers could not be traced. The suffering endured by his family could have been eased, but because of the specific terms set out in section 3 of the 2006 Act, their rightful compensation was slashed.
The solution to this problem is simple and not unprecedented. Parliament has already established the appropriate legislative model. Extending the principle contained in section 3 of the Act to asbestos-related lung cancer would allow victims to recover full compensation from any one negligent employer or insurer. The responsibility would then fall on that employer or insurer to pursue contributions from other responsible parties. This approach ensures that compensation is delivered quickly and in full to the person who needs it most, while still allowing the costs to be shared appropriately among those responsible.
It is important to emphasise that the scale of this reform would be modest. Specialist practitioners estimate that fewer than 100 asbestos-related lung cancer claims are brought each year, and only a portion of those would involve missing employers. The number of people affected is therefore relatively small, but for those individuals and their families the consequences would be great.
Beyond giving compensation to those who rightly deserve it, this small change to the Act would have wider benefits beyond the individual claimants. Patients with asbestos-related lung cancer often need a lot of care and support. With adequate compensation, they can afford additional care, specialist equipment, or medical treatments that may not be immediately available through the NHS. This gives patients the dignity and choice they deserve and eases the pressure on already stretched public services. Making sure negligent employers and insurers pay the full compensation would also prevent the burden from falling on the state through the benefits system. Taxpayers should not have to shoulder the financial consequences of workplace negligence.
The Compensation Act 2006 was a great piece of legislation brought in under the previous Labour Government. It just contains an unintentional oversight, and one that is easily rectified. Parliament did not deliberately choose to treat victims differently; asbestos-related lung cancer was simply not considered when the law was changed in response to legal developments concerning mesothelioma. There is a gap in the legislation. Closing that gap would not require a fundamental overhaul of the law; it would simply involve extending an existing and widely supported principle to a closely related group of victims.
It is a simple solution, and it comes down to fairness. There is absolutely no justification for treating sufferers of asbestos-related lung cancer any differently from sufferers of mesothelioma. When compensation cannot be recovered from some employers because they have disappeared, who should bear the financial burden? At the moment, that burden falls on the victim suffering asbestos-related lung cancer. The law should allow those people to recover full compensation from any one employer who is responsible. That employer can then seek a contribution to the damages awarded from other responsible employers or insurers.
In my frequent meetings with the Clydebank Asbestos Group, I have heard personal stories about how this has affected people in my community and across the UK. It is outrageous that victims and their families are not being given the support, dignity and rightful compensation they deserve. The time for sufferers of asbestos-related lung cancer to receive the same recognition as those with mesothelioma is long overdue.
It is incredibly significant and appropriate that we debate this today because 2026 marks 20 years since the last Labour Government introduced the Compensation Act. That is 20 years of sufferers of asbestos-related lung cancer not getting the compensation they rightly deserve, and it is time to make that change. Will the Minister agree to meet me and to work with me and the relevant organisations involved with this issue to review the Compensation Act 2006 and discuss how we can make the necessary improvements by way of amendment, so that people suffering from asbestos-related lung cancer and their families can finally access the full and fair compensation that they deserve?
The Minister for Courts and Legal Services (Sarah Sackman)
I thank my hon. Friend the Member for West Dunbartonshire (Douglas McAllister) for securing this debate. We have all been treated to a fine and thoughtful speech. He is without doubt a tireless advocate for his constituency—for Clydebank, Dumbarton, and the communities ravaged by the diseases that he has described. I extend my sympathies to all those who have suffered with asbestos-related diseases, made sick by their places of work and the conditions in which they should have been kept safe.
This is no doubt an incredibly important issue, which involves a complicated area of law where the common law and legislation have developed a complex and nuanced set of rules. I will set out the general position on causation and liability in negligence claims. The usual test for causation in negligence cases is the “but for” test—that is, whether the claimant’s harm would have happened but for the defendant’s breach in the duty of care owed to the claimant. If the claimant proves on the balance of probabilities that it would not have occurred without the breach, causation is established. Causation in industrial injury litigation that involves exposure to asbestos can be particularly complex, given that normally the claimant’s condition will have been caused by prolonged exposure to asbestos, involving many incidents and several different employers.
When determining liability and compensation, the courts draw a distinction between divisible and indivisible injuries. In England and Wales, liability and compensation for divisible industrial diseases, which is where the condition worsens with long-term exposure, is apportioned between previous employers, with each defendant liable only for the period of negligent exposure they caused. In the context of industrial injuries, indivisible diseases are conditions where the harm is treated as a single whole injury, because it cannot be medically or causally divided between different workplace exposures. It is usually impossible to know which specific exposure caused the injury. Under the normal rules, that would mean an employee who worked at different companies would likely fail in any legal claim because they cannot prove which employer caused them harm. Mesothelioma, for example, is treated as an indivisible disease.
As my hon. Friend eloquently set out, there have been a number of legal developments in recent years regarding liability and compensation for mesothelioma. In Fairchild v. Glenhaven Funeral Services Ltd, the House of Lords created a special rule for cases such as mesothelioma, where a claimant has been negligently exposed to asbestos by multiple employers but cannot prove which exposure caused the disease. In such cases, if an employer negligently exposed a worker to asbestos and thereby materially increased the risk of mesothelioma, they can be held liable even if the claimant cannot prove that that employer’s exposure actually caused the cancer. In short, the “materially increased risk” test replaced the “but for” test.
However, in Barker v. Corus, the House of Lords accepted that the Fairchild exception—that is, the materially increased risk test—still applied, but it also addressed the consequences of that liability. The court held that defendants were not jointly and severally liable, as had previously been understood, but instead liable only on a proportionate basis, reflecting their respective contributions to the overall risk.
In response, Parliament acted with cross-party consensus to enact the Compensation Act 2006, which reversed the effect of Barker v. Corus for mesothelioma claims. Section 3 of the Act reinstated the principle that victims could claim full compensation from any liable party, who can then seek contributions from others responsible for the exposure. That is vital in mesothelioma cases specifically, as it is not possible to establish which workplace fibres triggered the process of carcinogenesis. Equally, there is no action an individual can take that increases or decreases their chances of developing the disease. At the time of passing the 2006 Act, the broad political consensus was that due to the unique pathology of mesothelioma, the Barker ruling had to be reversed. Otherwise, there was a real risk of claimants being unable to seek the compensation that they deserved. As such, it was decided that as a unique disease, mesothelioma required a distinct legal remedy.
However, as we have heard, in terms of the life-changing effects and ill health that asbestos-related lung cancer can bring, in reality, the situation for many sufferers is little different for other non-mesothelioma claims, and the Barker ruling still applies to them. That was affirmed in Heneghan v. Manchester Dry Docks Ltd, in which it was held that the materially increased risk test of Fairchild applies to those claims, while the joint and severally liable principle introduced by section 3 of the Compensation Act 2006 is limited to claims relating to mesothelioma. Broadly, the courts accept that the materially increased risk test is proven for those claims if medical evidence shows that the asbestos exposure more than doubled the relative risk.
This area of law is a mix of devolved and reserved matters. The Scottish Parliament agreed via a legislative consent motion to UK-wide legislation that became section 3 of the Compensation Act. I want to assure my hon. Friend and the House that the UK Government are committed to ensuring that necessary support is available to all individuals suffering from asbestos-related conditions, including asbestos-related lung cancer. Eligible individuals can receive industrial injuries disablement benefit—a weekly no-fault payment for work-related diseases such as asbestos-related lung cancer. The Scottish Government plan to replace the IIDB with employment injury assistance, and work is under way to manage that transition.
Although the UK Government have no immediate plans to review the current legal framework in England and Wales, which has been the subject of much detailed analysis and determination in the senior courts, I am grateful to my hon. Friend for the attention that he has put on this issue. He and I have had the chance to speak outside the Chamber about how the law might be developed. I am grateful to him for securing the debate and giving me the opportunity to set out the UK Government’s position on what is, without doubt, a complex and intricate area of law, but one that has a significant impact on the lives of those who suffer from industrial-related diseases. In response to his question—or, dare I say, challenge—I will of course meet him and relevant organisations to discuss how the law might be reviewed to ensure that sufferers and their families can be treated fairly. I think that that is the right and careful approach, and I look forward to working with him.
Question put and agreed to.