Pleural Plaques Act upheld

The Supreme Court has ruled that the Scottish Parliament acted within the scope of its powers when it passed the Damages (Asbestos-related Conditions) (Scotland) Act 2009.

Insurance firms had challenged the legality of the Act, which provides that asbestos-related pleural plaques and certain other asbestos-related conditions constitute personal injury that is actionable under Scots law.

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).

The condition is generally asymptomatic, though it does indicate that asbestos fibres have lodged in the body and caused a physiological reaction. 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 17th 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.

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. This came fully into force in June 2009, but has been subject to challenge by insurers, who argued that the Scottish Parliament had acted unlawfully in passing the Act.

The Supreme Court has now rejected these arguments, ruling that the Act is valid.

"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," said Justice Secretary Kenny MacAskill. "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."