MSPs consider House of Lords ruling on pleural plaques

As reported on the Workplace Law Network on 24 June 2008, the Scottish Parliament is now debating changes proposed under the Damages (Asbestos-related Conditions) (Scotland) Bill which could have far-reaching implications for employers and the insurance sector throughout the UK.

The controversial Bill seeks to overturn a ruling from the House of Lords, which effectively ended the prospect of compensation being awarded to people who were found to have pleural plaques – the formation of scar tissue on the lung which can lead to conditions such as mesothelioma. The House of Lords decision in October 2007 reversed 20 years of precedent, and was estimated to save the insurance industry £1.4bn.

The move by Scottish MPs (MSPs) to try and overturn the legal ruling is intended to give support to people with pleural plaques and to reintroduce the possibility of an insurance payout to compensate for the condition. If the Scottish Bill is successful, it will:

• provide that asbestos-related pleural plaques amount to a material personal injury capable of founding a claim in damages;
• clarify that asymptomatic asbestos-related pleural thickening and asymptomatic asbestosis continue to be actionable; and
• have retrospective effect. 

The introduction of the Bill in Scotland is likely to put pressure on the UK Government, which launched its own investigation into the issue of pleural plaques during the summer and is expected to make a decision in November 2008.

Medical and insurance experts claim that - while the presence of a pleural plaque does indicate exposure to asbestos – it does not, in itself, always develop into an asbestos-related illness, and therefore does not warrant compensation.  This view was endorsed by Bridget Prentice, Parliamentary Under Secretary of State for Justice, at the launch of the Government’s consultation:

“Pleural plaques are evidence only of exposure to asbestos, as was made clear in the House of Lords judgment, and opinions differ over how many people then develop serious asbestos-related diseases, such as mesothelioma.”

Giving evidence to the Scottish Parliament’s Justice Committee, Nick Starling of the Association of British Insurers stated the case against the Bill clearly:

"Pleural plaques are benign. They do not have any symptoms associated with them, except in the most exceptional of cases. They do not develop into more serious conditions, they are inert biologically."

In June 2008, Workplace Law member Andrew Auty commented on the implications of introducing compensation for conditions such as pleural plaques:

“If accepted as a general principle, compensation for a biological effect, in the absence of measurable harm, would be a new adventure for the civil law. Potentially in line for compensation would be: raised levels of cortisol, high heart rates, temporary threshold shift, fatigue, aches and pains, anxiety, wheezing and so on.”

The Workplace Law Network has produced a briefing on the consultation document which summarises the issues surrounding the debate.

We can expect to hear more from the Scottish Government during September, and with responses to the UK Government consultation document required by 1 October, there is likely to be a formal announcement by November, in time for the Queen’s Speech if new legislation is drafted.