At the present time, Scotland has a different approach to pleural plaques than elsewhere in the UK (although the position in Northern Ireland may be about to change). Essentially, Scots law compensates those with pleural plaques; the law in the remainder of the UK does not, albeit there is a statutory scheme in place in England and Wales allowing those persons who had begun (prior to 17 October 2007), but not resolved, a compensation claim to receive a fixed payment of £5,000, on the basis they apply by 1 August 2011.
Pleural plaques constitute thickening to the tissue between the lungs and tend to develop following exposure to asbestos. Generally, they cause an individual no discomfort and do not affect daily life. They can, however, increase a person’s risk of developing cancer, although this risk is often very minor.
On 17 October 2007 the House of Lords (now the Supreme Court) decided in the English case of Rothwell v Chemical & Insulating Co Ltd that claimants with pleural plaques should not be compensated, as the plaques do not give rise to any symptoms. The Scottish Parliament took a different view and passed the Damages (Asbestos-related Conditions) (Scotland) Act 2009, allowing Scottish pursuers the opportunity to claim damages.
A group of insurers is currently challenging the legality of the Act. The case was heard before Lord Emslie earlier this year, who found against the insurers. The case was appealed recently and we await the Inner House (Appeal Court)’s decision.
Where, though, does this leave us now? Well, claimants in Scotland can pursue damages for pleural plaques through the courts while the 2009 Act remains in force (although these cases may be put on hold until the insurers’ case is completed). Valuation of these claims could be tricky. Courts could follow the English courts’ approach (prior to the House of Lords’ decision), follow earlier Scottish cases (of which there are few) or establish a new framework for assessing the value. It is impossible to guess which approach will be preferred.
Realistically, all we can do is watch this space. We will update you when the Inner House’s decision is published.