Scottish position on pleural plaques retained

Aviva, AXA general insurers, RSA, Zurich and other insurers have lost their judicial review of the Damages (Asbestos-related Conditions) (Scotland) Act after the Scottish Court ruled that the law enabling those with pleural plaques to obtain compensation was not burdensome to such an extent that it was “irrational”, which is the necessary standard to invalidate a primary Act of the Scottish Parliament.

The insurers argued that the decision to allow pleural plaques sufferers to claim compensation unfairly burdens them with additional liabilities under insurance policies which would run into billions of pounds. Insurers were seeking to rely on medical evidence which they say shows that pleural plaques, the scarring of the lungs which indicates exposure to asbestos, does not cause harm or lead to other asbestos related diseases including mesothelioma.

This decision will again prompt questions as to why the Government has not yet declared their position on pleural plaques after a commitment by Jack Straw, Justice Secretary to do so last year. The Courts of England and Wales currently follow the House of Lords decision in Rothwell v Chemical and Insulating Co Ltd and Another, which denies those with pleural plaques compensation.

The laws in Scotland allow compensation for pleural plaques and therefore there is a discrepancy between the protection afforded to those in Scotland and England and Wales.