Lord Emslie in the Court of Session has rejected a challenge from insurance companies to the Damages (Asbestos-related Conditions)(Scotland) Act 2009 ("the 2009 Act"). A group of leading insurance companies sought a judicial review of the 2009 Act which allows the payment of damages to sufferers of pleural plaques, a scarring of the lungs caused by exposure to asbestos.
The 2009 Act reversed in Scotland a House of Lords ruling (Rothwell v Chemical & Insulating Company Limited & others 2008 1 AC 281) that pleural plaques, although caused by exposure to asbestos, did not constitute an injury which could give rise to a claim in damages. The Lords had ruled that pleural plaques are symptomless and could not be classed as a disease. However, as a matter of principle, the Scottish Parliament decided that sufferers of pleural plaques should be able to raise a claim for damages and so passed the 2009 Act.
In his decision Lord Emslie accepted that the insurers did have sufficient title and interest to petition for judicial review of the 2009 Act. However, the Court accepted that as pleural plaques could lead to an increased risk of developing mesothelioma (a tumour covering the lining of the lung), sufferers could seek compensation.
Lord Emslie stated that although there is clearly room for differences of opinion as to whether the Scottish Parliament was right to legislate in the way it did, as a matter of law the insurers' challenge failed.
The 2009 Act has survived its first challenge, meaning that in Scotland sufferers of pleural plaques are able to seek compensation for their condition. Insurers estimate that this will lead to payouts to employees who have been exposed to asbestos totalling hundreds of millions, if not billions, of pounds. As such, they have now lodged an appeal against the decision. Watch this space.