Wednesday, October 12, 2011

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

sgspTriumph 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.

Kenny MacAskillScotland’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."

richard keen qcInsurers 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

20 comments:

Anonymous said...

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

If its so good they can always try it themselves.
Disgusting that anyone can actually come out with that crap in a parliament just to stop some already half dead victim trying to cling onto life.

I shudder to think what this mob would say in the great life support switch off debate.

Anonymous said...

The insurers will end up making us pay for it anyway by sticking up their fees and the lawyers will do the same and pocket an extra whack on top just for good measure.
Nice to see them fail for a change and as you say they should be made to pay back every penny taxpayers have forked out for this court fight!

Anonymous said...

life is cheap unless its a lawyer

Anonymous said...

I get the feeling this law was set up as a fight with Westminster from the outset.I think the judges recognised this if you read the ruling in its entirety.

MacAskill does like to have his wee rant re "progressive politics".

I can think of a thousand other issues he wouldn't go out of his way to pass a law on especially those affecting his precious colleagues in the legal profession.

However I am in favour pleural plaques be paid yet now we have a situation where its legal in Scotland but not in England.Surely some English lawyer will take up the case?

Anonymous said...

Has anyone actually been paid out yet or what?

Anonymous said...

How about passing a law allowing victims of the HepC/tainted blood scandal to get some justice instead of a window dressing inquiry or is it too much to admit the NHS/Govt knew about it all along & buried the evidence?

Anonymous said...

Well.Is it really a triumph for the SNP?
More like a triumph for the Supreme Court based in LONDON which is most certainly NOT in Scotland.

Anonymous said...

All those insurers should be boycotted!

Anonymous said...

Let you all be wary of dealing with lawyers wherever you are for they will stab you in the back as quick as look at you for more money - take it from one who has experience.

Anonymous said...

Anonymous said...

Well.Is it really a triumph for the SNP?
More like a triumph for the Supreme Court based in LONDON which is most certainly NOT in Scotland.

12 October 2011 17:45

Well it was kicked out of the Court of Session twice as Peter already told you in the story so if Scotland had actually been the final point of appeal it would have been a Scottish success with no need to go to London!

Anonymous said...

I like your angle on it Peter about the lawyers who said all this at the Scottish Parliament.
Good to see there was at least one msp taking them to task.

Anonymous said...

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

If I wrote what I think about this you wouldn't be able to publish my comment!

Anonymous said...

Well its good to see something positive happen in the courts for one although I feel the insurers will wriggle out of it one way or another.

I hope the victims get their payouts instead of having to wait another twenty years.

Anonymous said...

I agree with the earlier comment this is nothing more than playing with headlines and picking fights with the Supreme Court which MacAskill tore to shreds only a few weeks ago.

As far as I am concerned this will be one of those giving with one hand and taking away with the other stories we will find out the truth on sometime in the future

Anonymous said...

Scotland may have won this time around however there is no doubt the judges told Salmond & MacAskill were to get stuffed on some of their quests for fame via the law.About time.

Anonymous said...

The Human Rights angle from the insurers - I think this tells you a lot about how Human Rights is misused by big business and the legal profession yet when these bastards have violated some poor client's Human Rights there's not a lawyer in sight to take it on.

Human Rights as far as the Law is concerned means 'Is there enough money in it for us as in lawyers'

Anonymous said...

"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"

Yes I agree make them pay back every penny

Anonymous said...

The Insurance companies have billions of profit annualy, and can throw millions at this and not miss it - what's the betting they will take it to Europe next..delay payment at any cost is their modus operandi.

Anonymous said...

Anonymous said...

The Insurance companies have billions of profit annualy, and can throw millions at this and not miss it - what's the betting they will take it to Europe next..delay payment at any cost is their modus operandi.

13 October 2011 21:59

Exactly what will happen next..

Anonymous said...

I've got some asbestos on my garage roof.Do you think I should invite my lawyer round to remove it for me?
I'll provide him with some rough sandpaper to get the job done!