Insurers Fail to Block Change to Asbestos Law in Scotland

Four insurance companies, AXA, Norwich Union, Royal and Sun Alliance and Zurich asked the Scottish Court of Session to stop the Scottish Government bringing into force new laws which would reverse the House of Lords decision that pleural plaque is not a condition for which compensation can be recovered. This legislation has restored the right of individuals to claim from former employers and their insurers, compensation for asbestos related lung plaques.
There are ongoing legal proceedings by way of Judicial Review in Scotland in a further attempt by them to try and put an end to the new right to claim on the grounds the change in the law breaches their human right to a fair trial under Article 6 of the European Convention on Human Rights, contravenes their economic rights and is irrational in the face of the common law. They also argue that it will cost the taxpayer and employers too much.

Prior to the House of Lords decision in 2007 those suffering the physical insult and mental distress caused by asbestos plaque on their lungs had, in the view of the Courts, suffered recognisable harm often as a result of negligence by employers and had the right to modest compensation. It is a matter of opinion whether this is an injury or not but if there is it ought to result in compensation if that injury was caused by another’s negligence. It is difficult to see why taking a rational contrary view (which the Courts previously supported) can be considered irrational or in breach of human rights.

The case will be heard at the end of May.

In England and Wales, although a consultation paper in relation to whether the right to claim compensation for pleural plaque should be restored was published at the end of October 2008, still no response has been received from the Ministry of Justice. However, The Lord Chancellor has indicated that he hopes to publish a response at the end of July.

However, Andrew Dismore MP has taken the initiative in the House of Commons and introduced a Damages (asbestos - related conditions) Bill which was debated at the end of April. The Bill would overturn the House of Lords ruling. It is very heartening that The Bill was agreed by all MP’s who were present at the debate so that it can now go to the Committee Stage for detailed examination. However, The Bill could be stopped by the Government at a later stage. It still has a long way to go before becoming law.

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