Supreme Court Backs Pleural Plaques Compensation Law


The Supreme Court has ruled unanimously that the Scottish Parliament acted within its legislative competence when it passed the Damages (Asbestos-related Conditions) Act in 2009 (the 2009 Act). The 2009 Act provides that asbestos related pleural plaques and certain other asbestos related conditions constitute an actionable personal injury under Scots law.

The Challenge: AXA General Insurance Ltd and others v Lord Advocate

The 2009 Act was enacted to reverse the decision of the House of Lords in Rothwell v Chemical & Insulating Co Ltd which held that the mere presence of pleural plaques did not constitute an injury giving rise to a claim for damages. A number of insurance companies sought to challenge the validity of the 2009 Act on the basis that the Act was:

incompatible with the European Convention on Human Rights ECHR) and therefore outside the legislative competence of the Scottish Parliament; and>
open to judicial review as an unreasonable, irrational and arbitrary exercise of the legislative authority of the Scottish Parliament.

The Decision

The Supreme Court unanimously dismissed the insurers' appeal. The decision means that asbestos related pleural plaques and other asbestos-related conditions will remain actionable in the Scottish courts.

What next?

The result is disappointing for insurers, but not necessarily the end of the road; an appeal to the ECHR is a possibility.

With the Northern Ireland Assembly approving a Bill in identical terms to the 2009 Act and the Employers' Liability Trigger Litigation due to be heard by the Supreme Court at the end of this year, there may be renewed pressure to reconsider the position in England and Wales.

A large volume of claims have been raised in the Scottish courts and are sisted pending the decision in this case. It is likely that steps will be taken to progress these claims in the near future. In addition, in light of the difference in approach to asbestos related conditions across the UK, an element of forum shopping may now take place to capitalise on the position north of the border.

For further details on the case click here.