Pleural Plaques Bill introduced to Scottish Parliament
On 24 June 2008, the Scottish Government published a bill overruling a decision taken by the House of Lords in October 2007 that pleural plaques do not give rise to compensatable damage. Pleural plaques are small areas of scarring on the lungs. Although the plaques are generally symptomless, they do indicate exposure to asbestos, and therefore signify a risk of developing other asbestos-related diseases such as asbestosis or mesothelioma.
It has been possible to raise an action for damages for pleural plaques for over 20 years. However in the House of Lords case of Johnston v International Combustion Ltd, it was held that a person who had been exposed to asbestos in the course of his employment could not sue his employer for damages on the ground that he had developed pleural plaques. In Lord Hoffman’s opinion, since proof of damage is an essential element of a claim in negligence, symptomless plaques cannot amount to damage for the purpose of creating a cause of action. Lord Hoffman acknowledged that the presence of pleural plaques may cause a patient to contemplate his future with anxiety, or even lead to clinical depression, but decided that neither the risk of future disease, nor the psychiatric illness caused by contemplation of that risk, was actionable.
Whilst the judgement is not binding in Scotland, it is highly persuasive. It was this controversial decision that led the Scottish Government to take steps to overrule the House of Lords judgement by way of the introduction of the Damages (Asbestos-related Conditions) (Scotland) Bill. The purpose of the bill is to ensure that the House of Lords judgement does not have effect in Scotland.
The bill provides that people with pleural plaques caused by wrongful exposure to asbestos can continue to raise an action for damages. The position is also clarified relating to asymptomatic pleural thickening and asbestosis – although there is as yet no authoritative decision to the effect that asbestos-related pleural thickening or asbestosis are not actionable, section 2 of the bill ensures that these conditions will also constitute material damage for the purpose of raising an action. Moreover, the bill would be retrospective, taking effect from the date of the House of Lords judgement (17 October 2007).
Opposition to the bill is likely to come from insurers concerned about increased costs of claims, and businesses concerned about higher insurance premiums. There are also concerns that the bill will open the floodgates for claims for other conditions that are not currently compensatable. However the Minister for Community Safety, Fergus Ewing, believes that these fears are exaggerated, as the bill concerns only three asbestos-related conditions. In addition, there is controversy over whether overruling the House of Lords decision would fundamentally alter the law of tort in England, and likewise the law of delict in Scotland, as it raises the question as to what constitutes actual damage when raising an action.
A Government consultation on pleural plaques is scheduled to begin in July 2008, and will aim to provide a decision by the end of the year. This may lead to the introduction of similar provisions in England.
To view the House of Lords decision click here.
To view the Damages (Asbestos-related Conditions) (Scotland) Bill as introduced click here.
