UK Supreme Court backs Asbestos Pleural Plaques compensation in Scotland, defeating Insurance industry & lawyers who argued “Asbestos is good for you”

‘Triumph for progressive politics’ as UK Supreme Court defeats insurers challenge to Scots 2009 law allowing asbestos pleural plaques victims right to compensation.  IF A LAWYER stopped you in the street and said to you “Asbestos related Cancer is good for you” you may be inclined to think their clients (and the lawyer) have a vested interest in ending your life. Today, that very notion put to msps by Insurance industry lawyers at the Scottish Parliament in 2008 in a desperate effort to block compensation for Asbestos related illnesses was nowhere to be heard as judges at the UK’s Supreme Court DISMISSED the Insurance industry’s legal challenge against the Scottish Government’s Damages (Asbestos-related Conditions) (Scotland) Act 2009 which aims to ensure those who suffer from the Asbestos related condition of Pleural Plaques receive the compensation they are due.

The Supreme Court judges decided unanimously that the Scottish Parliament had acted within the scope of its powers when it passed the Damages (Asbestos-related Conditions) (Scotland) Act 2009, legislation that offered those who have pleural plaques the opportunity to claim compensation. The Act has been subject to lengthy legal challenge by a group of insurers who even used the Human Rights Act (ECHR) to argue the legislation passed by Holyrood which reinstated claims for Asbestos related pleural Plaques after the House of Lords sided with the Insurance industry over the Pleural Plaques compensation issue in 2007, was against the “Human Rights” of the insurance industry.

The full judgement from the Supreme Court can be downloaded here : Supreme Court Judgement in AXA General Insurance Limited and others (Appellants) v The Lord Advocate and others (Respondents) (Scotland) (pdf)

I reported on the insurance industry’s decision to challenge the decision at the UK’s Supreme Court in an earlier article here : Supreme Court to decide if Asbestos related Pleural Plaques ‘are good for you’ as Insurers challenge Scottish Govt & Holyrood's law making powers and in that earlier article, a Freedom of Information request by Diary of Injustice to the Scottish Government established the insurers legal challenge had forced a massive expenditure of £341,857.79 of public funds by the Scottish Government on lawyers legal fees defending against the Insurers, who have already lost two challenges against the new law at Scotland’s Court of Session. I trust the insurers will be forced to repay every penny to the public purse, and then some.

The Scottish Government issued a statement welcoming the Supreme Court’s decision to dismiss a legal challenge to a popular Act of the Scottish Parliament with Justice Secretary Kenny MacAskill urging the insurance companies to pay up to asbestos victims. The Minister said the failure of the legal case, brought by a group of insurers, was a "triumph for progressive politics" that would bring great comfort to workers that have developed pleural plaques, brought on by exposure to asbestos.

Scotland’s Justice Secretary Kenny MacAskill. Justice Secretary Kenny MacAskill said : "I warmly welcome this significant decision, not least for the sake of people with pleural plaques and all those who campaigned so vigorously to help them. It has always been our belief that the legislation is right in principle and right in law and I am pleased that it has been unequivocally upheld. The Scottish Government's Damages (Asbestos-related Conditions) (Scotland) Act was passed with overwhelming support in the Scottish Parliament, and today's decision is a triumph for the progressive politics that saw parties unite to do the right thing and help those that have developed pleural plaques as a result of negligent exposure to asbestos.

Mr MacAskill continued : "We firmly believe that people with this condition should be able to raise a claim for damages, and we are delighted that this decision has gone in their favour - a result that will surely bring them some comfort. It is our sincere hope that the insurers will now reflect carefully on the decisions reached by the Scottish Parliament, by both the Outer and Inner Houses of Scotland's Court of Session, and now by the UK's Supreme Court and settle those claims that have been stalled for so long."

Welcoming the Supreme Court ruling on pleural plaques Scottish Trades Union Congress (STUC) Deputy General Secretary Dave Moxham said : "This is a vindication of the heroic battle by the victims of pleural plaques for fair compensation as well as the work undertaken by MSPs of more than one political party to legislate for justice. The skill and expertise of Thompsons Solicitors has also been central to this victory. The insurance companies involved have now stretched and abused the boundaries of due diligence in throwing their resources at an increasingly desperate fight to deny responsibility and it is now time for them to shut up and pay up"

Nick Starling, director of general insurance and health for the Association of British Insurers, said in a statement after the ruling: "Insurers remain fully committed to continuing to pay compensation to people with asbestos-related conditions, such as mesothelioma The insurers brought this case because they believe that the Damages Act is fundamentally flawed in that it ignores overwhelming medical evidence that pleural plaques are symptomless, and the well-established legal principle that compensation is payable only when there is physical harm.We are very disappointed that the court has not found in our favour on this important principle of law. Insurers will now consider carefully this judgment and what it means for them."

Insurers legal team was headed by Richard Keen QC, Dean of the Faculty of Advocates. The ruling comes after a long & bitter fight through the Scottish courts from the insurers Avira, AXA Insurance, Zurich and the infamous Royal Sun Alliance (who also insure all Scottish solicitors via the Master Policy), and their lawyers Brodies LLP. Earlier, the insurers who were seeking to block the legislation at the Scottish Parliament, used lawyers from another Edinburgh law firm, Simpson & Marwick who told MSPs their understanding was “Pleural Plaques are good for you”. However, the Damages (Asbestos-related Conditions) (Scotland) Act 2009 was passed into law and the insurers then challenged the legislation through the Scottish Courts using a variety of Edinburgh law firms & even the Dean of the Faculty of Advocates himself Richard Keen QC. After legal action failed in Scotland, the insurers and their lawyers took the case to the UK Supreme Court on Human Rights grounds and finally today, lost their legal challenge.

Let us remember the depths of the arguments put before the Scottish Parliament to prevent Asbestos victims claiming compensation :

Representing the insurers argument, Dr Pamela Abernethy of Simpson & Marwick told the Scottish Parliament’s Justice Committee Pleural Plaques ‘are good for you’ (Click image or HERE to watch video)

Insurance companies put up stiff resistance to the legislation, a number of them backing up the notion Pleural Plaques & Asbestos are good for you (Click image or HERE to watch video)

 

Exposure to asbestos can result in the development of a number of conditions, including pleural plaques (i.e. scarring of the membranes around the lungs). This condition is generally asymptomatic, though it does indicate that asbestos fibres have lodged in the body and caused a physiological reaction. Medical evidence is that "people with pleural plaques are at risk of developing diffuse pleural thickening causing breathlessness, asbestosis of the lungs causing breathlessness, lung cancer which is usually fatal and mesothelioma, a cancer which can occur in the lining of the chest cavity or in the lining of the abdominal cavity which is almost invariably fatal, usually within 12 to 18 months of the first symptoms. People with pleural plaques who have been heavily exposed to asbestos at work have a risk of mesothelioma more than one thousand times greater than the general population.

From the 1980s onwards, where pleural plaques arose from negligent exposure to asbestos, Courts throughout the UK made compensation awards; those awards were paid by the negligent party or their insurer. On October 17, 2007, however, the House of Lords ruled in respect of a number of cases in England that asymptomatic pleural plaques do not give rise to a cause of action under the law of damages. The House of Lords ruling is not binding in Scotland, but would be considered highly persuasive by Scottish Courts.

In November 2007 the Scottish Government announced its intention to bring forward legislation to ensure that the House of Lords ruling would not have effect in Scotland. In June, 2008, the Scottish Government introduced the Damages (Asbestos-related Conditions) (Scotland) Bill. The Bill was passed in March 2009, got Royal Assent the following month, and came fully into force in June 2009.

The Outer House decision on judicial review was announced on January 8, 2010, which I reported here : Lord Emslie defeats legal challenge over pleural plaques as Insurers ‘big name’ legal team fail to overturn Holyrood’s Asbestos compensation law with the Inner House decision announced on April 12, 2011.

My previous coverage of the Damages (Asbestos-related  Conditions) (Scotland) Act 2009 can be found here : The Scottish Parliament, Asbestos, Pleural Plaques and a Supreme Court victory for the Scottish Government

So, the next time a lawyer tries to tell you “Asbestos is good for you” or “Cancer is good for you”, you know what to think of them, don't you

Supreme Court to decide if Asbestos related Pleural Plaques ‘are good for you’ as Insurers challenge Scottish Govt & Holyrood's law making powers

Insurers challenge over asbestos compensation law may provoke new rift over Supreme Court powers say experts. A NEW RIFT between the Scottish Government & the UK Supreme Court over the extent of the London based court’s powers to affect Scottish cases & law making powers may come in the next few weeks (as reported in the Sunday Herald : Hammer of the Scots) if a ruling in the latest stage of the Insurers challenge against the Damages (Asbestos-related  Conditions) (Scotland) Act 2009, now before the Supreme Court, goes against the Scottish Parliament’s ‘honourably intended’ law to allow victims of asbestos contamination in Scotland who have developed the condition known as PLEURAL PLAQUES to receive compensation after a 2007 House of Lords ruling in the Insurance companies favour ended the right to compensation for pleural plaques across the UK.

The Insurance companies took issue with the Scottish Government’s introduction of legislation in the Scottish Parliament to reverse the House of Lords decision, lobbying against its passage through the Scottish Parliament and then unsuccessfully fighting to have it overturned in the Scottish Courts. This latest challenge by the Insurers to have the Damages (Asbestos-related  Conditions) (Scotland) Act 2009 overturned on Human Rights (ECHR) grounds or on common law grounds, asks the Supreme Court :

(1) Whether the Damages (Asbestos-related Conditions) (Scotland) Act 2009 (“the 2009 Act”) infringes the appellant insurance companies’ right under Article 1 of Protocol 1 of the European Convention on Human Rights and is thereby outwith the legislative competence of the Scottish Parliament by virtue of section 29(2)(d) of the Scotland Act 1998 (“the 1998 Act”);
(2) Whether the Court of Session as part of its supervisory jurisdiction may review and reduce legislation passed by the Scottish Parliament on grounds other than those set out in the 1998 Act;
(3) If such review is available, whether the 2009 Act is invalid on irrationality grounds.

The ruling from the Supreme Court, expected in August will be interesting in that even if its judges find the Scottish 2009 act competent in terms of ECHR legislation and find no breeches of the insurance companies rights under Article 1, the Supreme Court may be put in a position on ruling whether the 2009 Damages Act, or indeed any legislation passed by the Scottish Parliament can be challenged under common law, a nightmare scenario which is bound to stir up more controversial comments about the Supreme Court’s role by Scottish politicians and the First Minister when the Supreme Court eventually makes known its decision in the case.

More information on the bitter, costly battle over the Damages (Asbestos-related  Conditions) (Scotland) Act 2009 was revealed today in a response to  a Freedom of Information request to the Scottish Government who have revealed a massive £341,857.79 of public funds have been spent on legal fees defending against the Insurers, who have already lost two challenges against the new law at Scotland’s Court of Session. The cost to taxpayers is likely to rise whatever the outcome, especially if the UK Supreme Court rules in the Insurance companies favour.

I reported earlier on the Insurers failure to overturn the Damages (Asbestos-related Conditions) (Scotland) Act 2009 HERE, the first hearing of the case in the Court of Session’s Outer House (Lord Emslie’s 2010 dismissal of the Insurers case) and the second challenge in the Inner House (Lord Hamilton’s dismissal of the reclaiming motion).

Avira, AXA Insurance, Zurich and the infamous Royal Sun Alliance (who also insure all Scottish solicitors via the Master Policy) were represented at the Court of Session by the Dean of Faculty himself, Richard Keen, and Scots law firm Brodies LLP. However, the big name legal team proved to be the big failure in the Scottish Courts which most people had hoped for and the Insurers failed to have the 2009 act of the Scottish Parliament struck down.

The Judiciary of Scotland website reported on the Lord President's final ruling of earlier this year, stating : The First Division of the Court of Session has issued its judgment in the above case, in which the petitioning insurers (AXA and Others) challenge the lawfulness of an Act of the Scottish Parliament – the Damages (Asbestos-related Conditions) (Scotland) Act 2009.  That Act provides that asbestos-related pleural plaques, and certain other asbestos-related conditions, constitute personal injury which is not negligible and is therefore actionable under Scots law.  This statutory provision in effect reverses, for Scotland, the decision of the House of Lords in Rothwell v Chemical Insulating Co Ltd.

The challenge was on two bases:  first, that the legislation was unlawful at common law and, secondly, that it infringed the insurers’ property rights under Article 1 of Protocol 1 to the European Convention of Human Rights.  The court has rejected the challenge at common law.  As to the challenge based on the Convention rights, it has held that the insurers’ rights are interfered with, but that in the whole circumstances that interference was justified.  It has, accordingly, rejected the challenge also on that ground.

The passage of the asbestos compensation laws at Holyrood during 2008 saw legal representatives for the Insurers tell MSPs at the Justice Committee that Pleural Plaques, an asbestos related condition “were good for you”, a statement widely reported in the media along with VIDEO FOOTAGE from the Scottish Parliament.

Dr Pamela Abernethy of Edinburgh law firm Simpson & Marwick & the Forum of Insurance Lawyers told MSPs : ‘plaques are a good thing'

 

Asked for comment on the Insurers Supreme Court challenge to widely supported & what many regard as a positive piece of legislation from the Scottish Government & Scottish Parliament, a Scottish Government spokesman said: "The Damages (Asbestos-related Conditions) (Scotland) Act was passed with overwhelming support in the Scottish Parliament, offering comfort to people with pleural plaques that they can claim compensation for the condition. The Act was found to be legal by the the Court of Session and has now been referred to the UK Supreme Court.”

The spokesperson continued : “Given that the case is currently live, it would be inappropriate to comment further."

Should the UK Supreme Court be able to rule on the eligibility of the Scottish Parliament to make legislation particularly when the vested interests of big business with easy access to legal teams and never ending finance can buy access to justice and possible changes to Scots law when others cannot ? One thing is for sure, if it does, we can expect a barrage of criticism from all quarters against its authority.

Here we certainly have a case which may prove to some there is no clear cut position on whether the Supreme Court is good or bad for Scotland in its current format .. and indeed, some may be left wondering whether the Human Rights of big business to keep its profits instead of paying out compensation to victims is indeed, a human rights issue or not.

Personally, I can think of a few other Human Rights cases in Scotland more deserving of the courts time, but then again, the people I am thinking of have little or no access to legal representation … unlike the Insurers who have.

My previous coverage of the Scottish Government’s 2009 asbestos compensation legislation is here : Damages (Asbestos-related Conditions) (Scotland) Act 2009 - The story so far