Wednesday, September 03, 2008

Insurance lawyers argue against laws to help asbestos victims asserting part of their suffering 'is a good thing'

True to tradition, when faced with the possibility of payout due to negligence in any field, be it medical, legal or financial, the lawyers are wheeled out on behalf of affected organisations to argue against any legislation or reforms which may adversely affect their paymasters.

People and lives are far too small a thing to get in the way of money, and anything, any argument can be presented as being honourable or sane, no matter how dirty or beneath contempt it may sound ...

This is exactly what happened on Tuesday when insurance lawyers attended the Scottish Parliament's Justice Committee hearings on the Damages (Scotland) Billl, to argue against the legislation which is intended to overturn the recent House of Lords ruling against compensation to asbestos victims.

Lawyers for the insurance industry went so far to argue the case that the 'pleural plaques' "are simply the body's physiological response to the presence of foreign fibres." and are thus 'a good thing'

Dr Pamela Abernethy of Messrs Simpson & Marwick & the Forum of Insurance Lawyers : ‘plaques are a good thing'

I found Dr Pamela Abernethy’s presence on behalf of the insurers not much of a surprise, as she works for the well known Edinburgh legal firm of Simpson & Marwick WS, who are also lead representatives to the Master Insurance Policy of the Law Society of Scotland which insures all solicitors from negligence and other financial claims from clients who have been wronged by their ‘crooked lawyer’.

You can find out just how honest the Master Policy of the Law Society is here : Marsh UK and corrupt practices in insuring crooked lawyers

I of course know Simpson & Marwick very well as they defended Scotland’s most famous crooked lawyerAndrew Penman of Stormonth Darling Solicitors, Kelso and believe me, no dirty trick was too low for S&M, Marsh and the Law Society of Scotland to throw against me, as I have covered in previous articles you can read along with the Scotsman coverage as a summary here : Andrew Penman of Stormonth Darling Solicitors, Kelso -The Scotsman stories

Suffice to say … Simpson & Marwick are no friend of asbestos victims by the sounds of things .. or for that, anyone who ends up at the mercy of a crooked lawyer, accountant or other so-called ‘professional;

Now that I see legal agents to Marsh UK appearing in the story, I would just like to remind you all that Marsh UK also provide the Scottish Government and the Scottish Parliament with a wide range of insurance services for many of their departments, which also includes indemnity insurance coverage of the type which Dr Abernethy specialises in. This also includes providing insurance services to the over one hundred lawyers working for the Government Legal Service for Scotland who get their annual subscriptions paid for by the taxpayer !

To sum that up, the lawyers arguing against the Damages (Scotland) Bill, are insured by the same insurers who are arguing against the Damages (Scotland) Bill, and who also insure the same Scottish Government who are sponsoring the legislation to help asbestos claims overcome the recent House of Lords ruling against pleural plaques.

Anyone think there may be some problems ahead ? Having the same insurers, legal firms and professional indemnity insurers all mixed up with the Government, the Parliament and even the lawyers of asbestos victims ?

I am not particularly surprised by the lengths the insurance industry will go to prevent themselves having to pay out over asbestos claims, or any claim involving negligence.

The legal profession has been conducting this exact same policy for decades, arguing that solicitors abusing clients is actually a good thing, and those solicitors, albeit crooked, shouldn't need to pay out for their misdeeds .. the only difference of course, is that precious few politicians are willing to speak out on such issues, as the various professions and industries usually fund their political parties.

Well, at least the Convener of the Justice Committee, Bill Aitken, will know all about the ways of the insurance industry and their lawyers against claimants, as Mr Aitken spent most of his life working in it.

I also note the same insurance firms which are arguing against paying out to asbestos victims and are trying to kill this piece of legislation, also insure Scotland’s legal profession for negligence …. an interesting coincidence which may see some fancy footwork by friendly politicians to the insurance industry later on as the Damages (Scotland) Bill progresses through Parliament …

You can see more of the testimony from the legal team of the insurance industry arguing against the Damages (Scotland) Bill here :

Bill Butler MSP giving the Insurance industry lawyers a hard time on the argument that suffering is a good thing ...

The Damages (Scotland) Bill should succeed in its effort to reverse the unjust ruling from the House of Lords against asbestos sufferers, and on that, I must at least commend the SNP for their effort in this area, if the effort is pressed home to the successful passage of the Bill into Law.

The Herald reports :

MSPs attack lawyer on claim asbestos plaques are 'good'

ROBBIE DINWOODIE, Chief Scottish Political Correspondent

Insurance lawyers and MSPs have clashed over claims that the lung-scarring condition pleural plaques could be a "good thing" because it proved the body's defences were working.

The insurance industry yesterday argued strongly against proposed Holyrood legislation designed to overturn a House of Lords ruling that compensation for the condition should be scrapped because there was no proof that it was harmful. Bill Butler, Labour MSP, was among those who repeatedly questioned industry experts on their definition of the condition.

Dr Pamela Abernethy, of the Forum of Insurance Lawyers, said: "The consensus is that pleural plaques are simply the body's physiological response to the presence of foreign fibres."

She said the fibres were then "walled off," adding: "The body's defence system is operating to prevent them from causing harm.

"My submission is that plaques are a good thing, they don't cause harm. These plaques are markers of exposure to asbestos."

Pressed on the statement, she said the presence of the condition was unreliable because people without plaques could develop illness.

Dr Abernethy was giving evidence to MSPs over the Damages (Asbestos-Related Conditions) (Scotland) Bill. The bill is intended to reverse a decision by the House of Lords that people with the condition cannot claim compensation. Defenders of the plan, including Clydeside Action On Asbestos, said the scarring on lungs indicated past exposure to asbestos and could point to a higher risk of developing mesothelioma, a deadly cancer.

Gilbert Anderson, the forum's regional representative for Scotland, said the bill was "well-intentioned" but wrong in law. Nick Starling, director of general insurance and health at the Association of British Insurers, said his stance against the bill was based on the House of Lords decision.

"Pleural plaques are benign. They do not have any symptoms associated with them, except in the most exceptional of cases."

However, Harry McCluskey from Clydeside Action On Asbestos said: "To me there should be no argument here today. Pleural plaques should be compensated."


Anonymous said...

I doubt they would be coming out with that if they were suffering from Mesothelioma.

I hope Holyrood gets it past the legal mafia!

Anonymous said...

What a happy bunch of lawyers all getting paid well to argue against life itself.

I take it the word 'humanity' will never apply to lawyers !

Anonymous said...

In theory you should have lots of lawyers with asbestos claims victims shouting about what this bunch of insurance lawyers said at Holyrood but as they are all part of the same team, not a peep !

Anonymous said...

link of interest

Anonymous said...

That will be very damaging for those concerned.I doubt they thought their appearance at Holyrood would be featured on you tube.Well done anyway.

Anonymous said...

Does anyone else have a feeling of deja-vu?

For decades insurance companies (who are major commissioners of medical and scientific research) engaged lawyers, doctors and scientists who all claimed that smoking did not cause harm - disregarding the fact that all of the above had long had access to research demonstrating exactly the opposite.

Anonymous said...

For your information Peter, although I'm sure you already know Pam works for S&M who are also lead representatives to Marsh and the Law Society against anyone who tries to raise a negligence case against a solicitor ...

Dr Pamela Abernethy
Litigation Partner

Qualified 1988. Partner from 1993.

A graduate of medicine, Pamela practised as a doctor for 12 years, both in a hospital and in general practice, before commencing her legal career, and she continues to maintain her registration with the General Medical Council. She acts extensively in personal injury claims, where her dual qualification is of particular assistance to insurance clients. Pamela has a specific interest in disease claims and has represented insurance clients in a number of high profile cases including the successful defence of two occupational stress cases.

Pamela has a significant professional negligence practice and advises accountants, surveyors, brokers and financial advisers. She is presently advising the Royal Incorporation of Architects of Scotland on the single survey.

Pamela appears regularly in the Court of Session and Sheriff Court as well as advising generally on all aspects of work relating to medical negligence.

* Education
* Fatal Accident Inquiries
* Medical Negligence

* Occupational Disease
* Personal Injury
* Professional Indemnity

Peter Cherbi said...

# Anonymous @ 9.46pm


# Anonymous @ 10.05pm

Money comes before humanity for some ...

# Anonymous @ 9.42am

I agree - the lawyers acting for the asbestos victims are themselves insured by the same insurance firms ... no wonder everyone is having to wait 100 years to get paid ...

# Anonymous @ 9.59am

Thanks for your link.

# Anonymous @ 12.16pm

Well its there now ...

# Anonymous @ 12.50pm

I agree .. and there is an update to the story you may be interested to read, involving the legal firms which some of the lawyers appearing before the Parliament actually work for ...

# Anonymous @ 1.12pm

Thanks for that, I have updated the article accordingly, and thank you very much for pointing it out !

Poirot said...

Not like you to miss something like that Peter

Glad to see you have included it with the usual dogged determination I've come to associate with you.

Good work and keep it up!

Anonymous said...

Oh dear.Dr Abernethy has been found out along with her very famous legal firm who do hired gun work for the Scottish Govt on occasion.
Perhaps the MSPS should have you attending to give them the real story on this lot or is that just a wee bit too much truth for Holyrood to stand ?

Gordon Butler said...

You write this in your post "To sum that up, the lawyers arguing against the Damages (Scotland) Bill, are insured by the same insurers who are arguing against the Damages (Scotland) Bill, and who also insure the same Scottish Government who are sponsoring the legislation to help asbestos claims overcome the recent House of Lords ruling against pleural plaques."

So that means the same insurers are insuring everyone involved in the debate too and even the SNP Government who are proposing the bill ??

Am I reading that correctly Mr Cherbi ?

Anonymous said...

A very thorough analysis as usual Mr Cherbi.I think this grip the insurance industry has over government and politics and law really has to be ended as you say !

Good luck.I think you might not be on Dr Abernethy's Xmas card list now but your reporting of what she said is definitely in the public interest.

Anonymous said...

A rather selfish group but life doesn't mean much to lawyers now does it.

Very interesting to read of all these insurance relationships too.I wonder why this is all allowed? Too many bribes flowing is it now ?

Anonymous said...

I am involved in a case where Simpson & Marwick are the defenders agents.The case involves an accountant and I can tell you they are evil to the core and will do anything to destroy people so I'm not surprised also by what you say.I will try to raise my story in a newspaper or maybe send it to you for help.

Anonymous said...

and people wonder why nothing ever gets through the parliament - its all to do with these bloody lawyers having their hands in every pie

about time someone stopped it or did something about it

Anonymous said...

Simpson & Marwick the ever present hitmen for the Royal Bank of Scotland.

You should see what they do to people on behalf of Scotlands not so profitable bank

Anonymous said...

Oh yes, the famous Dr Abernethy.She has been involved in a fair few controversial negligence cases in which the pursuers didn't get very far.I understand there was a journalist involved in one of those cases who may be familiar to you.

Keep up the good work Mr Cherbi.

Anonymous said...

Handy to know what the other side think of your illness.If they had it they wouldn't be so chuffed but I suppose huge pays and big houses compensate them for their lack of feeling.

Anonymous said...

Good you have the video Peter.Its amazing the difference it makes to the story just to see the lawyers sitting there condemning everyone to death with such a jolly happy attitude !

Anonymous said...

Simpson & Marwick never seem too far from such behaviour and I can guess they will be doing all they can to wait out the asbestos sufferers - after all if they die they can limit the compensation payments and get some bonuses for their partners for doing so.

Anonymous said...

Its amazing how low people can go to get money isnt it.
Good exposure of the story Peter.A credit to you I hope.

Anonymous said...

So it was this lot who defended Penman ?! No wonder he got off.He has ripped off a lot more people in the Borders since you.I take it this mob will be helping him do it and get away with it all the way.
Crooks !

Anonymous said...

Stay on their tail Peter.You are doing a great job of exposing how people cant get justice in Scotland.
Best wishes and keep on fighting for everyone !

Anonymous said...

They seem a happy bunch who aren't suffering from anything apart from greed and a lack of humanity.

Maybe they would like to go work in an asbestos factory for a few weeks then ?

Anonymous said...

I can see now why most Scots lawyers don't survive in law careers outside your little country.If you think about it Peter that's probably why they have to keep such a grip on the law to protect themselves against all their victims.
You can see what I'm saying can't you ?

Anonymous said...

Their clients must be very happy at the way they stamp on victims.All in a days work I guess for them!

interested party said...

Didn't you notice how Bill Aitken as Convener stepped in at the end to try and save Dr Abernethy with her remark ? Of course as you point out he was in the insurance industry too.

Bill Butler (Glasgow Anniesland) (Lab): Good morning, Dr Abernethy and gentlemen. It has been argued by supporters of the bill that those with pleural plaques have suffered harm, the scarring of the membrane surrounding the lung is a physical injury and damages should therefore be available. Will you each explain to the committee why you think that the harm is not sufficient to merit an award of damages?

Nick Starling (Association of British Insurers): Thank you for your invitation to give evidence on this beautiful September day. We rely entirely on the unanimous decision by the House of Lords on the basis of completely agreed medical evidence that pleural plaques are benign; there are no symptoms associated with them other than in the most exceptional cases; and they do not develop into more serious conditions—they are inert biologically. The only issue is that they give cause for anxiety in some people. According to the fundamental law of delict and the law of liability, harm must be demonstrated for compensation to be paid. Pleural plaques do not demonstrate that harm. That is based on agreed medical evidence.

Bill Butler: That is clear, Mr Starling. Does anybody else want to have a go?

Pamela Abernethy (Forum of Insurance Lawyers): From my medical understanding and having read with interest the medical evidence in the Johnston case, I believe that the consensus—although it has not been finally established—is

Col 1025

clear that pleural plaques are simply the body's physiological response to the presence of foreign fibres. As a consequence of such fibres in the body, there is a release of chemical mediators, which then create fibrous tissue that walls off the foreign fibres. As a consequence of that, the body's defence system operates to effectively prevent plaques from causing harm.

Therefore, my submission would be that plaques are a good thing and do not cause harm. Harm is pathological in the body; it does damage and usually has symptoms. The plaques are markers of exposure to asbestos. We know that some people have plaques as a consequence of exposure to asbestos, but some studies suggest that up to 50 per cent of those equally exposed to asbestos do not have plaques. My view is therefore that plaques do not cause harm.

Bill Butler: Did I hear you correctly? Are you saying that plaques are a good thing?

Pamela Abernethy: That is exactly what Lord Scott of Foscote said in the House of Lords. While listening to senior counsel submissions on the matter, he asked whether they meant that plaques are a good thing. I do not think that I can actually give you an answer to that—

Bill Butler: But that is what you have just said.

Pamela Abernethy: My understanding of the medical evidence is that plaques are the body's way of trying to wall off the bad fibres.

Bill Butler: Mr Starling said that plaques do not develop into serious conditions—

Pamela Abernethy: No.

Bill Butler: That is what Mr Starling said. What is your view as a medical person? Would they never develop?

Pamela Abernethy: My position is that plaques are a marker that an individual has been exposed to asbestos. However, people who have been exposed to asbestos but do not have plaques can equally have a slightly higher than normal risk of developing mesothelioma or asbestosis.

In fact, that is the difficulty that I see with the bill: those who have been equally exposed, perhaps in the same factory setting, but do not have the plaques have a slightly higher risk of mesothelioma or asbestosis, just as an individual with plaques does. Although those with plaques have a higher risk compared with the normal population, that is my difficulty with the bill.

Bill Butler: Does anybody else want to have a go?

Gilbert Anderson (Forum of Insurance Lawyers): Let me record my thanks on behalf of

Col 1026

the Forum of Insurance Lawyers for the opportunity to give oral evidence on the bill.

A fundamental point that should be borne in mind is that it is the exposure that creates the risk of further disease rather than the plaques per se. That is my understanding, as a lawyer, from reading the overwhelming medical evidence on the matter. As Mr Butler rightly says, this is a question of medical evidence and, ultimately, the overwhelming, agreed medical evidence—it does not appear to be in dispute—is that plaques per se are harmless.

Bill Butler: You mention exposure, Mr Anderson. How would you respond to supporters of the bill who say that pleural plaques sufferers have been wrongfully exposed to asbestos and are therefore entitled to seek compensation from those who acted negligently?

Gilbert Anderson: I am keen to re-emphasise that the bill does not appear to be about culpability. It is concerned only with whether harm has occurred.

A number of things have to happen for an action for damages for personal injury to succeed under the law of Scotland. First, a duty of care has to be in existence, and the pursuer has to show that the duty of care was owed to him. He has to show that there has been a breach of that duty, and he then has to demonstrate that, as a consequence of the breach, he has suffered the harm that is complained of. From my reading of the bill, I understand that it is only the harm that we are concerned about today.

With the greatest of respect to the committee—I fully understand that the bill is well intentioned—I believe that we should be focusing on the fundamental issue of whether the various conditions that are detailed in the bill are harmful or harmless. The overwhelming medical evidence appears to be unequivocal that they are harmless. To my mind, culpability, breach of duty and negligence are not relevant considerations in assessing the fundamental purpose of the bill.

Nick Starling: This takes us back to my opening remark about the law of delict, or liability as it is in England, which is fundamentally based on actual harm rather than exposure. We can all think of circumstances in which people have been exposed to harm—to harmful chemicals, for example—but have not developed a condition. The fundamental issue is that, as soon as someone develops a condition, whether that is asbestosis or increased risk of a heart attack from exposure to prescription drugs, there is a case for compensation.

However, the prospect of developing a condition, or anxiety that is engendered by the prospect of developing a condition, has never

Col 1027

been actionable in English or Scottish law. The bill would fundamentally change that and therefore raises a much wider issue than pleural plaques; it raises the whole issue of harm, liability and delict.


Bill Butler: In response to the first couple of questions, we have heard—tell me if I am wrong—that pleural plaques are a good thing and are harmless. Is that correct? Does anyone on the panel disagree with that opinion? Mr Clayden and Mr Thomas have not spoken yet.

Pamela Abernethy: One would not say that pleural plaques are a good thing. Pleural plaques are a marker of exposure to asbestos, so one is not saying—

Bill Butler: Forgive me, Dr Abernethy, but you said that plaques are a good thing—or you quoted without demur someone who said that.

Pamela Abernethy: No—

Gilbert Anderson: No one would say that pleural plaques are a good thing. That is common sense. However, their presence perhaps demonstrates that the body's defence mechanism is operating effectively. Those are neutral words—

Bill Butler: Why is the defence mechanism operating? Is it because it senses that harm has been done?

Gilbert Anderson: I am not a doctor, but my understanding is that pleural plaques are a reaction to invading fibres—

Bill Butler: Asbestos?

Gilbert Anderson: Indeed. I understand that pleural plaques try to wall off the fibres, as I think that my friend Dr Abernethy said. I speak as a lay person; I am a lawyer, not a doctor—

Bill Butler: Snap.

Gilbert Anderson: The question is therefore properly for the medical profession. However, on the basis of common sense I do not think that anyone would accept that pleural plaques are a good thing, although their presence perhaps demonstrates that the body's defence mechanisms are functioning.

Bill Butler: Because the body is under attack.

Gilbert Anderson: Indeed.

Bill Butler: Indeed. Thank you.

The Convener: In fairness, I point out that the comment about pleural plaques being a good thing came from a judgment by Lord Justice Scott.

Pamela Abernethy: Mr Butler, I did not say that pleural plaques are a good thing. I hope that you appreciate that I was quoting—

Col 1028

Bill Butler: I appreciate that, but you quoted the learned judge without demur

Anonymous said...

ISnt it disgusting how cheap life is to some?

Keep up the good work Mr Cherbi.

Anonymous said...

shameful to say the least and glad I read your blog
we need more outspoken people like you against the likes of this

Anonymous said...

I wonder how asbestos victims feel watching this lot belittle their lives.

Really sick to say the least!

Anonymous said...

Good work Peter.The video clips make a big difference to the story,you can really see just how happy those lawyers are to tell asbestos victims to f*ck off!

Anonymous said...

Just to let you know this Andrew Penman has totally ruined an elderly gentleman living in Kelso and no one can get anywhere to sort the mess out as Penman has disappeared all the papers.About time you got yourself into the investigation business and plastered these peoples pictures and warnings to avoid them all over the world.Sick people these lawyers

Anonymous said...

Your average lawyer would cover up the Nazi holocaust, if the price was right, no disrespect to the victims.
I like it when I hear a doctor or a lawyer has a terminal illness. No doubt if they thought someone caused it the medical evidence would support litigation.

Anonymous said...

Any profession who will steal childrens organs without their parents consent cannot be trusted. The medical profession and the Legal Profession are as compassionate as the Nazis.
In Germany many doctors murdered men, women, and children, because they did not fit the Nazi master race image. The Nuremberg laws were the work of lawyers.
They are the lowest level of human life, compassionless, ruthless, evil incarnate.

Anonymous said...

These people make me sick, they protect insurance companies so much, they must have shares in them.
Lawyers and doctors taught me the meaning of the word hate.