Pleural plaques victims in Scotland regain right to claim compensation

The Damages (Asbestos-related conditions) (Scotland) Bill effectively reverses a ruling of the House of Lords which said that such claims could not be brought. The judgment, although not binding in Scots law, would have had a strong influence on court decisions in Scotland.

Pleural plaques are small, localised areas of thickening on the membrane covering the lungs, caused by the inhalation of asbestos fibres. They are harmless and, in almost all cases, show no symptoms.

But because they are evidence that there has been some exposure to asbestos, pleural plaques also indicate an increased risk that the individual will develop an asbestos-related condition such as mesothelioma in the future. Many people who are diagnosed with pleural plaques become severely anxious that they will do so.

For over 20 years, such individuals have been 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 ruled 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, 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.

Shortly after this judgment was handed down, the Scottish Government declared its intention to ensure the ruling would have no effect in Scotland.

The Bill passed by the Scottish Parliament on 11th March simply 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".

When the new law comes into force (on a date to be confirmed) this provision will be treated as having always been in place. But the Bill specifically provides that it cannot be used to re-open previously settled claims or concluded litigation.

The UK Government, however, has still not announced what actions, if any, it proposes to take with regard to the law of England and Wales.

Last July, the Ministry of Justice expressed reservations about using legislation to overturn the House of Lords' decision but invited views on a number of options, including ways to improve public understanding about pleural plaques and setting up a "no fault" scheme to provide financial support. That consultation closed on 31st October 2008.

Announcing the new law, the Scottish Parliament's Minister for Community Safety Fergus Ewing said: "We have a moral duty to ensure that those who suffer the effects of asbestos due to our industrial past should be able to claim for damages."

"People with pleural plaques have been injured and have a significantly higher risk than the general population of developing mesothelioma, which is a particularly vicious cancer," said Ewing. "We cannot underestimate the anxiety that this brings to people affected by it or those living with them. I hope this action will bring some relief to those people who are living every day with this condition."

Nick Starling, Director of General Insurance and Health at the Association of British Insurers (ABI), called the Bill "fundamentally flawed".

"It ignores clear medical opinion that plaques are symptomless, and do not cause other asbestos-related conditions," he said. "And the full cost implications of this measure, which will be paid for by all Scottish taxpayers and firms, have been ignored. The Scottish Government has already admitted that its initial cost estimates were too low.

“This vote could have profound and unintended consequences beyond pleural plaques. It ignores the fundamental legal principle that compensation is paid only where there are physical symptoms, and could open the floodgates for claims from people exposed to a risk, but showing no symptoms,” said Starling.