The Supreme Court (previously the House of Lords) has issued its decision in the judicial review brought by AXA and various other insurance companies. The insurers sought to challenge the lawfulness of the Damages (Asbestos Related Conditions) (Scotland) Act 2009, an Act of the Scottish Parliament. That Act provides that asbestos-related pleural plaques, and certain other asbestos-related conditions, constitute personal injury which is actionable under Scots law. The House of Lords had previously determined that the mere presence of pleural plaques did not constitute an injury which could give rise to any claim for damages.

The Supreme Court has rejected the insurers’ arguments.They sought to argue that the Act was outside the legislative competence of the Scottish Parliament as it was incompatible with the European Convention on Human Rights. The Supreme Court held the Act does comply with the European Convention on Human Rights. It involves questions of social policy. The judges said the court should respect the views of a democratically elected government, unless the government’s judgement was “manifestly without reasonable foundation”. In passing the Act, the Scottish Parliament had judged that persons who have contracted pleural plaques should be entitled to claim for damages; this was not without reasonable foundation.

Secondly, the insurers attempted to argue that the 2009 Act was unreasonable, irrational and an arbitrary exercise of the legislative authority of the Scottish Parliament, and so should be judicially reviewed. Using the guiding principle of the rule of law, the court held that it could not substitute its own views as to what was rational or reasonable, for the views taken by a democratically elected legislature.

The effect of this is that the 2009 Act remains in force. Persons complaining of pleural plaques are entitled to seek damages in the Scottish courts. This is different to the position in England and Wales, where the courts have determined that pleural plaques do not constitute an injury which gives rise to a claim for damages. This means those affected have no right of action to claim damages in respect of pleural plaques in England and Wales. There are presently a very large number of cases which have been brought by pleural plaques sufferers in Scotland. These cases will now proceed under the 2009 Act.