Pleural Plaques - Insurers Launch Judicial Review Against The Scottish Damages Act

Some of you may have read my blog before the Easter break when I reported that the Scottish Parliament had voted in favour of the re-instatement of pleural plaques as a compensatable injury again by passing The Damages (Asbestos-related conditions) (Scotland) Act which reverses the 2007 decision of the House of Lords in Rothwell in which they said that compensation could no longer be claimed for pleural plaques.

Pleural plaques are scarring of the lungs caused by exposure to asbestos and whilst in 99.9% of cases they do not cause the sufferer any symptoms, many people diagnosed with pleural plaques are worried and concerned about what this means for their future health and in particular, whether or not they will go on to develop a more serious asbestos related condition such as asbestosis or mesothelioma, a cancer caused by exposure to asbestos.  I know that from representing victims of asbestos related diseases that for them the diagnosis of pleural plaques is not a trivial matter at all but one that causes them great worry and concern.

I was therefore angered but not surprised to read on the Association of British Insurers (ABI) website  that a group of insurers have lodged a judicial review against the Scottish Parliament’s decision to overturn the House of Lords decision in the Rothwell case and make pleural plaques a compensatable condition again. The insurers bringing the action – Aviva, AXA Insurance, RSA and Zurich – represent over half the employers’ liability insurance market.  They say that say the Asbestos Bill, which received royal assent on Friday and makes pleural plaques compensable, is ill-founded because plaques are symptomless, do not impact on health, and do not lead to asbestos-related diseases.

Nick Starling, director of general insurance and health for the Association of British Insurers, said: “Insurers have not taken this action lightly. But as the act is ill conceived, ignores the fundamental legal principle of negligence and clear medical evidence, they feel they have no choice.

The Asbestos Victims Support Group Forum, in it’s response to the Governments recent consultation on whether to re-instate pleural plaques as a compensatable injury and who represent the victims of asbestos related diseases and their families have a very different view to the insurers and state in their response to the consultation:

“It is not right that expectations based on legal decisions founding a right to compensation for pleural plaques spanning twenty years should be dashed without any new evidence or change in medical knowledge. Nothing has changed. If new medical evidence had come to light showing that plaques are not related to asbestos exposure, or that plaques do not cause psychological harm, then the decision would be explicable. As things stand, asbestos victims’ expectations are consistent with their experience of the disease and with medical knowledge, with law settled for over twenty years and are wholly justified.

For over twenty years the courts have accepted that the decisions to treat pleural plaques as a compensatable disease are consistent with the rules of the tort of negligence. Apparently, we are asked to accept that the law has been wrongly applied for all those years and pleural plaques are not, after all, an injury. For asbestos victims, this legal volte face is not explained by exquisitely argued arcane principles of law, but by cost; the cost to the insurance industry of compensation for pleural plaques. This decision is first and foremost a policy decision justified by legal ‘principles’, applied twenty years too late. As such, the decision lacks all credibility and brings the law of negligence in the UK into disrepute.

Insurers have reserved against claims for pleural plaques for over two decades and they are in a position to continue to pay damages in cases where judgment is obtained.”

Let’s hope that these powerful insurance companies are not successful in their judicial review as if they are it would be a further blow to victims of asbestos related diseases.