Asbestos victims victorious in David and Goliath battle

Published on Tuesday 12 April 2011 18:17

WORKERS whose health was damaged by exposure to asbestos will be able to claim for damages, after insurers lost their bid to change the law.

Leading insurance firms yesterday lost their fight to overturn a law that gives victims of an asbestos-related condition the right to compensation.

Victims and those who have campaigned to force insurers to pay out to people who have developed pleural plaques hailed the decision a "great victory".

Bob Dickie, chairman of Clydebank Action On Asbestos, which represents around 200 pleural plaques victims, said: "It is absolutely wonderful that the judges have upheld the act of the Scottish Parliament and the right of pleural plaques victims to seek compensation.

"The legal wrangling has gone on for five years, putting a huge additional strain on those already under all the pressures of coping with plaques."

The insurers claimed they could have to pay out billions of pounds under the law allowing damages to be awarded for the condition.

Axa, Aviva, Royal & Sun Alliance and Zurich Insurance attempted to have the Damages (Asbestos-related Conditions) (Scotland) Act 2009 declared null and void but this was rejected by a judge last year, and that decision was upheld yesterday by three judges in the Court of Session in Edinburgh.

The Scottish law had already overturned a landmark House of Lords 2007 ruling that people with pleural plaques cannot claim compensation.

The plaques are dense masses caused by exposure to asbestos that develop on tissue between the lungs and the inside of the rib cage. In most cases there are no symptoms and the plaques are benign.

• Background: Insurance giants were no match for Scottish courts

• Case study 1: 'My illness will only get worse'

• Case study 2: 'I was told not to kick up the dust'

• Case study 3: 'Asbestos dust is like nuclear fall-out'

However, supporters of the law argue that benign scarring on lungs proves past exposure to asbestos and increases the risk of fatal disease.

The insurance firms had pursued a judicial review of the Scottish government legislation, warning that MSPs ignored medical opinion and had opened the "floodgates" for claims, and that it would cost up to 8.6 billion to settle damages actions.However, Scottish Government figures were much lower - more than 20 million for existing cases and then annual costs that would rise to a peak of 16.5m before decreasing.

The insurers challenged the validity of the 2009 act on two grounds - that it was irrational to give money to people with a "benign and asymptomatic condition", and infringed the firms' right under the European Convention on Human Rights to peaceful enjoyment of their possessions, meaning their capital resources.

Lord Hamilton, the Lord President, who heard the appeal with Lords Eassie and Hardie, said the act was not irrational and that the "conferring of benefits on those who are perceived to be deserving" and how they were funded were "essentially political questions" that "a court cannot and should not enter on".

Rejecting the insurance firms' human rights claims, he said that while the government may have interfered with them, such interference by the state "could be justified in the public interest".

He concluded it was "entirely understandable" that somebody with pleural plaques may suffer "heightened levels of considerable anxiety" and that the "legislature has resolved that anxiety may constitute a matter worthy of monetary compensation".

Scottish Trades Union Congress General Secretary Grahame Smith welcomed the ruling, adding: "It is deeply disappointing that insurers, having accepted the employer's business and their insurance premiums continue to challenge any efforts to compensate workers suffering asbestos-related conditions."

But yesterday the Association of British Insurers (ABI) said it would take its fight to the UK Supreme Court. Nick Starling, ABI director of general insurance and health, said the law was "fundamentally flawed".

He said: "We are disappointed by this judgment. The insurers who brought this judicial review did so because there are fundamental legal principles at stake, and they remain confident that there is significant substance in their grounds for challenging the Damages Act."