Judicial Review of the Damages (Asbestos-related Conditions) (Scotland) Act 2009 (the "Act").
The Inner House of the Court of Session in Scotland has today rejected insurers' challenge to the legality of the Act.
The 2009 Act allows individuals with pleural plaques (symptomless scarring of the lungs which indicate an exposure to asbestos) to seek compensation from their former employers. The Act was passed by the Scottish Parliament to reverse the earlier decision of the House of Lords in Rothwell which ruled that symptomless pleural plaques, which may themselves give rise to anxiety, were not "damage" capable of founding a legal cause of action.
A number of insurers challenged the legislative foundation of the Act, arguing that it contravened the established need for real or material damage in an action for negligence. In addition to questioning the Scottish Parliament's competency to pass the Act, insurers alleged that the State had interfered with the judicial determination of pleural plaques cases in contravention of the European Convention on Human Rights ("ECHR").
In January 2010 the Outer House rejected the insurers' challenge, observing that passing the Act did not amount to anything like the standard of irrationality that would have to be met before an act of the Scottish Parliament would be invalidated. It also held that whilst the Act made pleural plaques an actionable injury, it did not affect the judicial determination of any claims and did not breach the ECHR.
Upon hearing insurers' appeal of the Outer House decision, the Inner House today upheld that ruling, stating that the decision to place financial responsibility for asbestos related pleural plaques upon insurers was one which fell within the legislative sphere.