Insurers face bill for billions after court backs asbestos law

Published on Friday 8 January 2010 22:11

LEADING insurance firms claimed they might have to pay billions of pounds after they failed yesterday to block legislation by the Scottish Parliament to help people exposed to asbestos.

The insurers asked a judge to outlaw legislation that allows damages actions to be raised for a condition known as pleural plaques, which, although also caused by exposure to asbestos, do not cause mesothelioma, a lethal cancer, or asbestosis.

However, Lord Emslie ruled in the Court of Session in Edinburgh that the objections of the insurers did not prove the level of "irrationality" needed to set aside laws passed by a democratically elected parliament.

Harry McCluskey, chairman of Clydeside Action on Asbestos, said: "This is a great news for the victims of pleural plaques. It is absolute rubbish to say that pleural plaques don't affect victims."

Solicitor advocate Frank Maguire, of Thompsons Solicitors, said: "This judgment states categorically that the Scottish Parliament was perfectly within its rights to pass this law, and that is tremendous news for pleural plaques sufferers."

Stuart McMillan, SNP MSP for West of Scotland, who had campaigned for the legislation, said: "This is great news… it's important that all sufferers of asbestos-related conditions have their voices heard and they receive the compensation they deserve."

Axa, Aviva, Royal & Sun Alliance and Zurich Insurance pursued a judicial review of the 2009 Damages (Asbestos-related Conditions) (Scotland) Act. Estimates by the insurers and Holyrood of the costs of the act have varied greatly. The insurers give figures of between 76 million and 607m a year, and a total potential cost in Scotland of 8.6 billion. The government spoke of 13m annually and overall costs of 131m, stressing that precise figures were impossible.

Lord Emslie said that pleural plaques were dense masses which developed on tissue between the lungs and the inside of the ribcage, adding: "In most cases, pleural plaques have no discernible effect on an individual's day-to-day physical health or wellbeing."

The judge said that, under long-established legal principles in the UK, negligence was not completed until damage had been caused. Without damage, a person had no right of action. For more than 20 years, insurance companies had paid compensation for pleural plaques when the number of such claims had appeared low.

The issue of pleural plaques being "an actionable injury" was not tested in the House of Lords until a 2007 ruling that they were not. In response to the ruling, the Scottish Parliament decided to pass the 2009 act to maintain in Scotland the chance to win damages for a condition that MSPs decided was more than negligible.

The insurers, said Lord Emslie, argued that the Scottish Parliament had contrived to do the opposite of other legislatures which, faced with an intolerable escalation of claims by "the worried well", had brought in measures to veto pleural plaques litigation.

"I consider that primary legislation would require to be tainted to a serious and exceptional degree before an application such as the present could be upheld," said Lord Emslie. "A major flaw in the (insurers'] argument is their rigid insistence that pleural plaques claimants 'have suffered no harm'. The Scottish Parliament has taken a different view on that matter … and I consider that this was a course of action which it was entitled to take."

'Employers kept us doing it long after they knew the dangers'

SHIPYARD worker Dan O'Malley, from Paisley, Alex McLean, an electrician, and Robert Adam, a joiner (both from Glasgow) all have pleural plaques.

Mr O'Malley, 71, who worked with shipbuilders in Paisley said: "I'm delighted the judge has ruled that the Scottish Parliament was right to pass this law. I was diagnosed with pleural plaques after suffering breathlessness and a persistent cough. I had all sorts of X-rays and finally a CT scan before pleural plaques was confirmed.

Now it preys on my mind all the time, especially since a very close friend of mine who had pleural plaques died of mesothelioma last year."

Mr McLean, 76, said: "I have had four former colleagues all die from mesothelioma and that is the real worry. It's probably worse for our families."

Mr Adam, 71, who worked in shipyards up and down the Clyde said: "As joiners we had to cut the asbestos boards. There was no doubt our employers kept us doing it long after they knew the dangers.

"They stopped us cutting the stuff with buzzsaws and gave us a small blade, and told us not to kick up the dust. But you still weren't allowed to leave where you were working for breaks. You only got off the ship at lunchtime and at the end of your shift."