Scottish parliament overturns Lords' pleural plaques ruling

UK insurers are reeling from today’s publication of a Scottish bill that says people with pleural plaques are entitled to make damages claims retrospectively, overturning a landmark decision in the House of Lords.

The Damages (Asbestos-related Conditions) (Scotland) Bill, which was introduced yesterday in Scottish Parliament, says asbestos-related pleural plaques – symptomless growths on the lungs that form after exposure to asbestos – are a personal injury that is not negligible.

This means that pleural plaques victims can recover damages.

The bill said that those seeking damages for asbestos-related pleural thickening or asbestosis do not need to prove that it has caused, is causing or is likely to cause physical problems; though it added that damages would be increased if the claimant is able prove physical problems stemming from the condition.

The bill overrules the decision by the House of Lords last October that asymptomatic pleural plaques do not give rise to a cause of action under the law of damages. It will create a push for the UK government to publish its planned consultation paper on pleural plaques, which is expected within the next two weeks.

“Not only are [the Scottish Parliament] trying to change the law, but they are also trying to change the facts.

Steve Thomas, technical claims manager, Zurich

It could also potentially open up Scotland to forum shopping. But although the bill does not address this concern, sources said it is likely that a person with pleural plaques would need to have been exposed to asbestos by a Scottish company, or in Scotland.

Nick Starling, director of general insurance and health at the ABI, said: “There is medical agreement, as today’s bill confirms, that pleural plaques are symptomless, do not impact on a person’s health and do not develop into asbestos-related diseases. To compensate for pleural plaques would fly in the face of accepted medical opinion, the Law Lords ruling and common sense.

“This bill doesn’t respond to the anxieties people have about pleural plaques. Instead of legislation the government should be leading an education campaign to reassure those with plaques.”

Steve Thomas, UK technical claims manager for Zurich, added: “If you look at the first article, is says that pleural plaques are a personal injury, but they’re not. The House of Lords’ and medical opinion is that pleural plaques are not a personal injury because there are no symptoms, so not only are they trying to change the law but they’re also trying to change the facts.”

But Fergus Ewing, Scotland’s minister for community safety dismissed claims that Scotland is legislating for the "worried well", arguing such a view was a gross misrepresentation of people who have a much higher risk of developing serious asbestos-related disease.

“Most of the opposition to the bill is from insurers and business interests. I believe that fears about wider effects of the bill are exaggerated.

Fergus Ewing, Scottish community minister

He said: “Most of the opposition to the bill is from insurers and business interests. They have concerns about increased costs of claims and insurance premiums and that the bill will open the floodgates for claims for other conditions that are not currently compensatable.

“I am aware of those concerns, but believe that fears about wider effects of the bill are exaggerated. The bill will be concerned only with three asbestos-related conditions - pleural plaques; symptomless pleural thickening; symptomless asbestosis- and will have no effect beyond those conditions.”

Andrew Welch, partner and head of litigation at Stephensons Solicitors, said he could understand why insurers would be upset about the bill, especially considering how unusual it was to have retrospective legislation.

But he added: “I suspect the legislators would have said that pleural plaques claims have been going on for many years and a stop to them was only put on them recently. So all they’re doing is restoring the law to what it used to be prior to the House of Lords’ decision.”