AXA General Insurance Ltd and others v The Lord Advocate and others 12.10.11

The Supreme Court has endorsed the Scottish Parliament’s right to legislate to permit pleural plaques claims in Scotland. In June 2009 the Damages (Asbestos-related Conditions) (Scotland) Act 2009 came into force, having been enacted by the Scottish Parliament. The Act provides that asymptomatic asbestos-related pleural plaques and certain other asymptomatic asbestos-related conditions constitute an actionable personal injury. The Appellant insurance companies brought a petition for judicial review seeking an order that the Act was unlawful. The petition was dismissed by the Outer House and then by the Inner House of the Court of Session. The issue has now been considered by the Supreme Court.

Influential throughout the legislative process in Scotland was the fact that prior to the decision in Rothwell v Chemical Insulating Company Ltd and others [2007], in which it was held that asymptomatic pleural plaques were not compensatable injuries in England and Wales, pleural plaques sufferers had been receiving damages since approximately 1984.

The issue of whether pleural plaques were an actionable injury was never litigated to a conclusion in Scotland, and in cases which had come before the Scottish courts, claims had not previously been resisted on the ground that they did not constitute damage for which compensation might be payable. In the view of the Scottish Parliament, pleural plaques claims should be compensatable; implementing this Act was its way of affirming this position and avoiding the Rothwell decision adversely affecting Scottish pleural plaques victims.

The Appellants' case was that the Scottish Parliament had exceeded its powers in passing this Act, on the basis that it was an unreasonable and irrational use of their powers and was incompatible with article 1 of Protocol 1 of the European Convention on Human Rights.

Supreme Court

The Supreme Court has held, in its unanimous judgment, that:

  • The Act was not incompatible with the European Convention on Human Rights.
  • It would be wrong for judges to substitute their views as to what is rational or reasonable against the considered judgment of a democratically elected legislature.

Implications

This decision affirms the Scottish Parliament's right to introduce legislation that allows claims to be made for asymptomatic pleural plaques, both retrospectively as well as for new claims. However, radiological diagnosis of pleural plaques remains an essential prerequisite. The legislation does not determine the success or failure of any claim, it simply confirms that any valid claim is compensatable. The implications of this decision are likely to be:

  • Many Scottish workers who have been exposed to asbestos are expected to consult their doctors and solicitors with a view to making a claim.
  • This in turn could place an increased burden on resources (e.g. the courts) and will add to the burden of insurers.
  • Insurers are likely to increase premiums to factor in the cost of pleural plaques claims.
  • The Northern Ireland Parliament has shown interest in enacting similar legislation to that of the Scottish Parliament and they may now follow suit. This will increase the disparity with victims in England and Wales who are unable to claim for the same condition.
  • The decision may have the effect of widening the scope of anxiety claims generally.

The Supreme Court stresses that this still preserves all the other defences that may be open on the law or the facts, other than the single question whether the pleural plaques themselves are actionable.