Asbestos compensation - new legislation
June 25th 2009
The right to redress for people who develop pleural plaques after being negligently exposed to asbestos has been secured for the people of Scotland. The Damages (Asbestos-related Conditions) (Scotland) Act 2009 came into force on the 17 June 2009 allowing sufferers to raise actions for damages in Scotland where they have been negligently exposed to asbestos. Similar legislation is also being considered for England and Wales.
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 does not generally have symptoms itself, although it is an indication that asbestos fibres have lodged in the body and caused a physiological reaction. Evidence suggests that people with pleural plaques are at risk of developing diffuse pleural thickening causing breathlessness, asbestosis of the lungs causing breathlessness, lung cancer and mesothelioma (a cancer which can occur in the lining of the chest cavity or in the lining of the abdominal cavity which is usually fatal).
These legal developments are of particular importance to those involved in commercial due diligence, particularly those involved in acquisitions of industrial and manufacturing businesses. It will be essential to assess any potential liability for pleural plaques and to consider who should be responsible for any such claims (ie as between the buyer or seller).
Meanwhile, in England and Wales the Ministry of Justice is currently deciding how to move forward on this issue and whether the law of negligence should be changed in relation to pleural plaques. A Private Member's Bill in very similar terms to the Scottish legislation, is currently being debated in Committee in the House of Commons, but as it is not Government backed, it is unclear how far it will progress.
The Scottish Parliament was prompted to take action following a House of Lords judgement from October 2007 where it was decided that asymptomatic pleural plaques do not give rise to a cause of action under the law of damages. In order to stop the judgement having an effect in Scotland, the Scottish Parliament passed the Damages (Asbestos-related Conditions) (Scotland) Act 2009 which provides that asbestos-related pleural plaques, asbestos-related pleural thickening and asbestosis are actionable personal injuries for which damages can be claimed. It is currently the subject of a judicial review by a number of insurers who argue that it is in breach of European law and is contrary to the general legal principle that compensation is only payable where physical harm is suffered.
Scotland’s Community Safety Minister Fergus Ewing welcomed the final stage of the Act's journey, stating: "For many years the Courts accepted that anyone injured in these circumstances, with or without symptoms, was entitled to redress. The Scottish Government believes that was the right approach. That is why we have acted to ensure that the House of Lords ruling of October 2007 will not have effect in Scotland. The implementation of this legislation will ensure recognition, compensation and justice are not denied to those of our fellow citizens who, through no fault of their own, have sustained an asymptomatic asbestos-related injury and are at much greater than average risk of developing a painful and ultimately fatal condition.”
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