Despite the big insurance companies ongoing judicial review against the Damages (Asbestos-related Conditions) (Scotland) Act 2009, the Scottish Government has announced today the act in its present terms will be effective from June 17 2009, allowing people who develop pleural plaques from being negligently exposed to asbestos to take legal action seeking compensation.
Scottish Government release :
The right to redress for people who develop pleural plaques after being negligently exposed to asbestos will be secured from June 17, 2009 it was announced today.
Earlier this month Royal Assent was given for the Damages (Asbestos-related Conditions) (Scotland) Act. A Commencement Order signed by Community Safety Minister Fergus Ewing means that the Act can now come into force in Scotland from Wednesday,, June 17.
Welcoming the final stage of the Act's journey, Fergus Ewing said:
"Asbestos is a potentially lethal substance. That has been widely known for many decades. Sadly, however, proper protective measures were not always put in place. Some employers failed in their duty of care. They negligently left workers exposed to asbestos and so to risk of serious harm, even death.
"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.
"We are determined to stand up for the rights of wronged individuals. 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.
"The legislation received overwhelming support in the Scottish Parliament last month, but only after supporters and opponents had been given opportunities to make their case. I now hope that the arguments will cease. The role of the Scottish Parliament - Scotland's legislature - is to decide our country's laws: that is what it has done.
" I am pleased that Lord Glennie this week rejected an attempt by Axa Insurance, Norwich Union Insurance (Aviva), Royal & Sun Alliance Insurance and Zurich Insurance to prevent the Scottish Government bringing this legislation into force. We will continue to defend the rights of individuals who have been negligently injured and the right of the Scottish Parliament to make law for our country."
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. The risk for those more lightly exposed is less but still significant." (Written evidence to the Justice Committee of the Scottish Parliament from Dr Robin Rudd, Consultant Physician, Co-Director Barts Mesothelioma Research, Co-Chair London Lung Cancer Group)
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 17 October 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.
On November 29, 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.
On February 6, 2008 the Scottish Government announced that, as well as pleural plaques, the legislation would cover two other asymptomatic asbestos-related conditions: asymptomatic asbestosis and pleural thickening.
Between February 6, 2008 and April 4, 2008 the Scottish Government consulted on a partial Regulatory Impact Assessment.
On June 23, 2008, the Scottish Government introduced the Damages (Asbestos-related Conditions) (Scotland) Bill. Following a report by the Justice Committee, the Bill passed Stage 1 on November 5, 2008. It then passed Stage 2 on December 2, 2008 and Stage 3 on March 11, 2009. Royal Assent was received on April 17, 2009 and Scottish Ministers made a Commencement Order on April 29 to bring the Act fully into force on June 17.
It is standard practice for there to be a two month period between Royal Assent and an Act coming into force.