Out-Law News 3 min. read
13 Jan 2010, 9:20 am
Pleural plaques are small areas of thickening on the membrane covering the lungs and are caused by the inhalation of asbestos fibres. They are harmless and, in almost all cases, symptomless. But they show that there has been some exposure to asbestos and, as such, they indicate an increased risk that the individual might develop an asbestos-related condition in the future. Many people diagnosed with pleural plaques become severely anxious about this risk.
For over 20 years, such individuals were able to claim damages from employers who negligently exposed them to asbestos at work. But in October 2007, the House of Lords found there was no legal basis for such claims.
The Law Lords held that it is a fundamental requirement of a negligence action that the negligence causes injury and the claimant suffers damage as a result. According to current medical knowledge, however, plaques are harmless, therefore there is no injury. Without physical injury, the risk of contracting a future disease and the claimant's anxiety are also not actionable claims.
In response, the Scottish Parliament passed a law that effectively reversed this decision in Scotland. The Damages (Asbestos-Related Conditions) (Scotland) Act, which came into force on 17th June 2009, states that any rule of law that says asbestos-related pleural plaques do not constitute actionable harm "ceases to apply to the extent it has that effect".
In April 2009, Aviva, AXA Insurance, RSA and Zurich lodged an application for a judicial review of the Act.
They argued that the law was an unwarranted contravention of established legal principle and ignored established and agreed medical fact. They said it unfairly burdened insurers with disproportionate, additional liabilities in order to benefit a small group of claimants who had suffered no actual harm.
But in a judgment handed down on 8th January, Lord Emslie, sitting in the Scottish Court of Session, dismissed the application. He acknowledged that, at various stages of the 22-day hearing, he had felt "a measure of sympathy" for insurers' position, but concluded that the Scottish Parliament had not acted irrationally or disproportionately.
In his view, the Act pursued a legitimate aim in the public interest – to restore the status quo that existed before the House of Lords judgment – and went no further than was necessary to achieve that aim.
"In my opinion, a major flaw in [the insurers'] argument is their rigid insistence that pleural plaques claimants 'have suffered no harm'", he said. "The Scottish Parliament has taken a different view on that matter of mixed fact and law, creating a statutory cause of action for affected individuals, and I consider that this was a course which it was entitled to take".
"There is clearly room for differences of opinion as to whether the Parliament was right to legislate in the way it did," Lord Emslie concluded, "and it remains to be seen whether the 2009 Act will prove to have adverse legal or political consequences in years to come.
"But … I am unable to accept that the [insurers'] complaints, either individually or collectively, come anywhere near the standard of 'irrationality' which would be necessary in order to invalidate a primary Act of the Scottish Parliament".
Nick Starling, Director of General Insurance and Health at the Association of British Insurers said he was very disappointed with the decision.
"Insurers brought the review on the grounds that The Damages Act is fundamentally flawed as it ignores overwhelming medical evidence that plaques are symptomless, and the well-established legal principle that compensation is payable only when there are physical symptoms," he said.
“Insurers will now be considering carefully this judgment, and are seriously looking at the grounds for an appeal against it," Starling added. "This is not the end of the road.”
In the meantime, the UK Government has still not announced its intentions following its 2008 consultation on what to do about the pleural plaques issue.
In the absence of any Government proposals, Labour MP Andrew Dismore has introduced a Private Member's Bill on similar terms to the Scottish Act. The Damages (Asbestos-Related Conditions) Bill is due to have its second reading in the House of Commons on 2nd February.