Insurers launch legal challenge to Scottish pleural plaques law

The Damages (Asbestos-related conditions) (Scotland) Act was given Royal Assent on 17th April and is expected to come into force two months after that date.

Pleural plaques are small areas of thickened membrane on the lung surface. The Act 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".

This effectively reverses a 2007 House of Lords decision which said that such claims have no legal basis because pleural plaques, which are symptomless, do not constitute an injury, even though they evidence exposure to asbestos.

Without physical injury, a claimant cannot claim damages against a negligent employer even if he has become severely anxious that he may in future contract an asbestos-related disease, such as mesothelioma.

On 21st April, Aviva, AXA Insurance, RSA and Zurich, which together represent over half the employers' liability insurance market, lodged an application for a judicial review of the Act.

They argue that the new law ignores medical evidence that pleural plaques are symptomless and do not cause asbestos-related conditions and that it overturns a fundamental legal principle that compensation is only payable when physical harm has been suffered.

They also claim the Scottish Government failed to fully assess the impact the law will have on firms and taxpayers and that the consequent rise in claims could mean higher insurance costs.

Nick Starling, Director of General Insurance and Health at the Association of British Insurers, called the law ill-conceived.

"Insurers have not taken this action lightly," he said. "But as the Act is ill-conceived, ignores the fundamental legal principle of negligence and clear medical evidence, they feel they have no choice.
 
"Insurers remain committed to paying compensation to those negligently exposed to conditions that impact on their health. But the industry is fundamentally opposed to any move that will extend compensation to those exposed to a risk but not suffering any symptoms, such as pleural plaques," said Starling.