In this eNewsletter:

• The issues 
• The implications
• Further information

Direct Dial:
0131 625 7283

Email:
douglas.keir
@andersonstrathern.co.uk

Direct Dial:
0131 625 7284

Email:
andrew.lothian
@andersonstrathern.co.uk

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Update - pleural plaques are back?

In a press release issued yesterday (29 November), the Scottish Government announced their intention to implement legislation to reverse the recent, unanimous, decision of the House of Lords in Rothwell v Chemical & Insulating Co and others.  The decision had effectively removed the right to claim damages of those suffering from pleural plaques caused by negligent exposure to asbestos.

The Scottish Justice Secretary, Kenny MacAskill, stated:

“Pleural plaques in anyone exposed to asbestos mean they have a greatly increased lifetime risk of developing mesothelioma and a small but significantly increased risk of developing bronchial carcinoma.  This will mean that people diagnosed with this condition will have to live with the worry of possible future ill-health for the rest of their lives.  That is why the Scottish Government is to take steps to reverse the House of Lords judgement and ensure that people with pleural plaques can continue to raise an action for damages.”

The issues

The law of damages is a devolved matter.  Although the UK Government has decided not to interfere with the House of Lords decision, the Scottish Government can.  By doing so, the Scottish Government is seeking to achieve a similar result to that achieved UK-wide by the Compensation Act 2006, which overturned the earlier House of Lords decision in Barker v Corus UK plc. 

However, there is a critical distinction that needs to be drawn between the decisions in Rothwell and Barker. 

The Barker case concerned the fatal condition of mesothelioma.  It was accepted that this condition had been caused through negligent exposure to asbestos.  The dispute centred on the ability of the claimants (and their families) to recover 100% of the compensation awarded.  The House of Lords decision meant that claimants faced the prospect of only receiving part of the damages which the court had awarded them. 

In stark contrast, the fundamental issue in Rothwell was whether or not the claimants had actually sustained any injury in the first place.  The House of Lords decided that the claimants, although negligently exposed to asbestos, had not sustained any injury: no injury equals no compensation. 

The implications

By seeking to legislate, the Scottish Government is leaving itself open to accusations of unwarranted interference with the independent judicial process.  Unlike in Barker, the Government is seeking to empower those who have not sustained any injury. It is important to recognise that, from a medical perspective, pleural plaques do not cause any symptoms and do not cause asbestos-related diseases.  They are simply an indicator of exposure to asbestos. 

While Rothwell was an English appeal case, and is therefore not binding in Scotland, it is regarded as highly persuasive, not least because two of the five judges involved in the decision were former Lord Presidents of the Scottish Court of Session.  In a subsequent decision issued in the Court of Session in the case of Wright v Stoddard International plc, a Scottish court has already followed Rothwell.  The judge’s closing comments are unequivocal:

“It is not that pleural plaques cause harm which is de minimis: it is that they cause no harm at all”.

The Scottish Government’s proposed legislation will have significant ramifications -

• It casts considerable doubt on the credibility and independence of the judiciary in Scotland.  Is it now the case that if a court’s decision, while in accordance with the long-established law of damages, is not politically acceptable, legislation will simply be passed to reverse it? 
• The potentially significant negative effect on insurers and businesses in Scotland who now may be faced with substantial liabilities for claims that can no longer be pursued elsewhere in the UK.
• How are cross-border issues to be resolved?   Why should Scottish businesses foot the bill for exposure that may have happened in other parts of the UK where no damages would be payable?

No timescale has been announced yet for the introduction of the proposed Bill.  We will continue to monitor the position and update you again when there are further developments.
 

Further information

For further information, please contact Douglas Keir, Andrew Lothian or your usual contact within the ILU team.