POSTCODE LOTTERY OF ASBESTOS COMPENSATION

LEGAL RMT helpline 0800 376 3706 :: november/december 2011 :: RMTnews 21 Rail workers and seafarers with the asbestos-related condition pleural plaques face a postcode lottery for compensation after the Supreme Court ruled that the Scottish parliament and the Northern Ireland Assembly had the right to pass laws for the benefit of their citizens. People in England and Wales diagnosed with the same condition continue to be unable to pursue compensation against their former employers. The welcome decision by the UK’s highest court was made in response to a challenge by the insurance industry to the lawfulness of an Act of the Scottish parliament – The Damages (Asbestos-related Conditions) (Scotland) Act 2009. The Act was passed in order to reverse the decision of the House of Lords in 2007, in a case called Rothwell v Chemical & Insulating Co Ltd, to end compensation for pleural plaques - a scarring of the lining of the lungs caused by exposure to asbestos. Pleural plaques seldom cause any physical symptoms. However they represent irreversible structural damage to the lungs. Someone diagnosed with plaques will, understandably, suffer anxiety due to the increased risk of going on to develop a more serious or fatal asbestos related condition. Many workers in the rail industry will have known colleagues who died from mesothelioma, the cancer of the lining of the lung caused by asbestos. It was accepted by the courts for 20 years, until challenged by insurers, that pleural plaques did constitute personal injury which should be compensated. The insurers’ motivation was of course to save billions by preventing tens of thousands of people with plaques from making claims against negligent employers. The Law Lords agreed with the insurers that the presence of pleural plaques did not constitute an injury which could gave rise to a claim. The right of pleural plaques sufferers throughout the UK to pursue compensation was ended. Holyrood acted swiftly to restore the right to compensation for Scottish citizens. The effect of its Act was to declare that pleural plaques are a personal injury for the purposes of a claim for damages. The Northern Ireland Assembly took the same approach and passed a similar Act earlier this year. In unanimously rejecting the insurers’ appeal, the Supreme Court delivered a ringing endorsement of the legislation in Scotland (and Northern Ireland). The insurers, Axa, Royal Sun Alliance, Zurich and Aviva, claimed the legislation was incompatible with the European Convention of Human Rights and so was outside the legislative competence of the Scottish Parliament. They also said that it was an “unreasonable, irrational and arbitrary” exercise of the legislative authority of the Scottish Parliament. But the court accepted that the legislation served a legitimate social policy aim and was a proportionate means of achieving it. It also accepted that Scottish pleural plaques sufferers who were directly affected by the insurers’ legal challenge had a right to object to it. This decision recognises the democratic right of the Scottish parliament to legislate for the benefit of its citizens. In Scotland the rights of people with pleural plaques are more important than the commercial interests of insurers, which is how it ought to be. The failure of the Westminster government to act leaves it isolated. Only the discredited arguments of insurers and politicians could attempt to justify why people in Scotland and Northern Ireland whose lungs have been damaged by asbestos are entitled to compensation while those suffering from the same condition in England and Wales are left without a remedy. POSTCODE LOTTERY OF ASBESTOS COMPENSATION Ian McFall, head of asbestos policy at Thompsons Solicitors, looks at the implications of a recent Supreme Court ruling