Judicial Review of Damages Act Unsuccessful

The Damages (Asbestos Related Conditions) (Scotland) Act 2009 which came into force on 17 June 2009, reinstated the rights of Scots who have been diagnosed with pleural plaques, pleural thickening or asbestosis as a result of negligent exposure to asbestos to claim compensation. The Act overturned the decision of the Court of Appeal in England, upheld by the House of Lords, that pleural plaques was not a compensatable injury. This decision still applies to England and Wales.

As previously reported, the Act was challenged by Zurich, Royal & Sun Alliance, Aviva and Axa on the basis that the conditions covered do not constitute harm and the Act therefore conflicts with the fundamental principle that compensation is payable only in circumstances where harm has been suffered.

Lord Emslie, having heard 22 days of argument on the matter, reached the conclusion that the insurers various challenges to the Act failed and on that basis has dismissed the petition for judicial review.

Personal Injury Scotland welcomes the decision of Lord Emslie as we believe that sufferers of pleural plaques should have the right to seek financial compensation for diagnosis of pleural plaques. Whilst in many cases the plaques are benign, their presence can signify an increased risk of developing a more serious asbestos-related condition such as mesothelioma, an aggressive form of lung cancer.

It remains to be seen whether the insurance companies will appeal the decision.

The decision of Lord Emslie is available at the Scottish Courts website

To find out if you may have a claim as a result of exposure to asbestos at work, complete our online form or call one of our solicitors on 0800 731 8434.

Caroline Kelly
Personal Injury Scotland