A recent case in the UK Supreme Court (AXA General Insurance Limited and Others v Lord Advocate and others (Scotland)) confirmed that the Scottish Parliament did have the power to overrule an earlier decision of the Supreme Court by passing legislation allowing those injured in Scotland to claim compensation for pleural plaque injuries (Damages (Asbestos-related Conditions) (Scotland) Act 2009). Pleural plaques are the scarring of the lungs caused by exposure to asbestos.
The insurance companies, in an attempt to limit their liability for the negligence of their clients in the 1940’s, 50’s and 60’s and even as late as the 70’s in exposing their employees to asbestos, challenged the decision of the devolved Parliament in Edinburgh to allow compensation not only in the future but also backdating the same for people with these pleural plaques.
The unfortunate situation now exists that a person injured by exposure to asbestos in England or Wales cannot claim. Those in Scotland, however, can. This now emphasises the fact that two legal codes exist within one country - i.e. the United Kingdom - and that a highly inequitable difference exists between the two in terms of asbestos claims.
To add insult to injury for those people who were exposed to asbestos in England and Wales as a result of the negligence either of their employers or even the employers of their loved ones, the devolved Northern Ireland Assembly appears set to pass similar legislation. This will allow victims in Northern Ireland to claim for compensation. Early indications are that the Assembly will support such legislation and it could come into effect in the coming months or even weeks. This will allow hundreds of Claimants who have been denied compensation following the earlier Supreme Court decision in 2007 (when it was still the House of Lords) to be restarted.
As a specialist asbestos injury team, we regularly see the effects of negligent exposure to asbestos. Although pleural plaques typically represent the least significant form of injury caused by exposure to asbestos, it is nevertheless an injury. The worry and distress it causes as a possible early indicator of future more serious conditions can cause claimants great anxiety and distress. We will continue to push for similar legislation in this country and would encourage all those affected by such injuries to contact their local MP expressing their concerns over this matter, and even going so far as to suggest similar legislation be passed here.
This case does not affect the ability of claimants to make claims for asbestosis, pleural thickening, lung cancer or mesothelioma claims.