Scottish plural plaques bill challenged by insurers

The Scottish Government is being challenged by insurance companies over its plans to make people with pleural plaques eligible to claim for damages. 

Pleural plaques are small areas of scarring on the lungs which are benign on their own, but which act as an indicator of asbestos exposure. Although they do not cause or develop into a more serious asbestos-related condition, they indicate an increased risk of developing mesothelioma because of exposure to asbestos. 

Pleural plaques had been worthy of legal action for over 20 years, until October 2007 when the House of Lords judgement in Johnston v. NEI International Combustion Ltd ruled plaques do not give rise to a cause of action under the law of damages.  

Following that judgement, the Scottish Government announced plans for a bill that would restore plaques to being a worthy cause of action in Scotland.  

"Pleural plaques in anyone exposed to asbestos mean they have a greatly increased lifetime risk of developing mesothelioma”, said Justice Secretary Kenny MacAskill. "This will mean that people diagnosed with this condition will have to live with the worry of possible future ill health for the rest of their lives [and] is why this Scottish Government announced last November that we are to take steps to reverse the House of Lords judgement.” 

This planned legislation is due to be tabled before the summer recess, but a number of insurance companies are warning against it. “It is our view,” says AXA Public Affairs Manager, Phillip Hickley, “that the proposal to introduce legislation is wrong and should not be progressed.

“If this goes ahead there will be [an] alteration to the fundamental foundations of the law of Tort and it will set up a dangerous precedent for the future. [Presently] an action for compensation can only succeed if there is some sort of identifiable harm suffered. With pleural plaques, despite one or two submissions to the Scottish Executive, it is our belief, based on the … science that we are aware of, that pleural plaques is not a compensable disease.

“If [the legislation] goes ahead, the full implications will be huge and significant for all employers, former employers, local authorities, the Government, and the insurance industry. At the end of the day it will impose a much higher cost burden on a number of parties and that will then lead to [a] significant implication for the competitiveness of Scottish businesses.”