The Supreme Court has dismissed a challenge brought by Insurers Avira, AXA Insurance, Zurich and Royal Sun Alliance against the Damages (Asbestos-related Conditions) (Scotland) Act 2009 which was passed by the Scottish Parliament to reinstate compensation for Pleural Plaques, an asbestos related condition, after the House of Lords ruling in 2007 found Pleural Plaques to be unrelated to asbestos exposure. More on the story HERE & HERE
The full ruling from the Supreme Court : Supreme Court Judgement in AXA General Insurance Limited and others (Appellants) v The Lord Advocate and others (Respondents) (Scotland) (pdf)
The Scottish Government issued the following statement welcoming the Supreme Court’s decision :
Justice Secretary Kenny MacAskill today welcomed a Supreme Court decision to dismiss a legal challenge to a historic Act of the Scottish Parliament. 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. 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) Act in 2009, legislation that offered those that have pleural plaques the opportunity to claim compensation. The Act has been subject to lengthy legal challenge by a group of insurers.
Mr 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. 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."
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, with the Inner House decision announced on April 12, 2011.
While Scottish Ministers welcomed the decision to dismiss the insurers challenge, the Justice Secretary and the First Minister Alex Salmond have not taken any side swipes at parts of the judgement which declare Holyrood not to be a “Sovereign Parliament” (Expect that, and another fight, for another day – Ed)
In Paragraph 46 of the Supreme Court’s judgement on the issue, it is stated : “The Scottish Parliament takes its place under our constitutional arrangements as a self-standing democratically elected legislature. Its democratic mandate to make laws for the people of Scotland is beyond question. Acts that the Scottish Parliament enacts which are within its legislative competence enjoy, in that respect, the highest legal authority. The United Kingdom Parliament has vested in the Scottish Parliament the authority to make laws that are within its devolved competence. It is nevertheless a body to which decision making powers have been delegated. And it does not enjoy the sovereignty of the Crown in Parliament that, as Lord Bingham said in Jackson, para 9, is the bedrock of the British constitution. Sovereignty remains with the United Kingdom Parliament. The Scottish Parliament’s power to legislate is not unconstrained. It cannot make or unmake any law it wishes. Section 29(1) declares that an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament. Then there is the role which has been conferred upon this court by the statute, if called upon to do so, to judge whether or not Acts of the Parliament are within its legislative competence: see section 33(1) and paragraphs 32 and 33 of Schedule 6, as amended by section 40 and paragraphs 96 and 106 of Schedule 9 to the constitutional Reform Act 2005. The question whether an Act of the Scottish Parliament is within the competence of the Scottish Parliament is also a devolution issue within the meaning of paragraph 1(a) of Schedule 6 to the Scotland Act in respect of which proceedings such as this may be brought in the Scottish courts.”
Holyrood and the Scottish Government has been well & truly warned it would seem.