Biggart Baillie Solicitors

Damages (Asbestos-related Conditions)(Scotland) Bill is passed in Scotland

Thursday, March 12, 2009

Yesterday the Scottish Parliament passed the Damages (Asbestos-related Conditions)(Scotland) Bill which means that people in Scotland negligently exposed to asbestos and then diagnosed with certain asbestos related conditions will still be able to sue for compensation, despite a decision by the House of Lords in October 2007.

The Bill will receive Royal Assent in about a month’s time and a commencement order will then be required to bring the legislation into force.

The Scottish Government introduced the Bill last year to ensure that the decision of the House of Lords in Rothwell v Chemical and Insulating Co. Ltd - that asymptomatic pleural plaques do not give rise to a cause of action under the law of damages - would not have an effect in Scotland.

The Act applies to three asbestos-related conditions – pleural plaques, symptomless pleural thickening and symptomless asbestosis. The House of Lords judgement only dealt with pleural plaques, but the Scottish Government decided that all three conditions should be covered because asbestosis and pleural thickening are also indicators of significant asbestos exposure and can be detected while symptomless.

The provisions of the Bill will take effect from the date of the House of Lords’ judgment, 17 October 2007. This means that it will cover people whose cases have not been settled or determined by a court before the Bill comes into force, as well as those who haven’t been able to pursue a claim as a result of the decision of the House of Lords.

The Bill is not without controversy. During the Committee stage, it was noted that medical experts were divided on whether damages should be awarded to pleural plaques sufferers and it was recognised that the Bill represents a departure from the established principles in Scots Law in relation to the basis on which someone can claim damages.

Fears have been expressed that the creation of a distinct legal right to compensation will lead to an increase in the number of people diagnosed with asbestos related conditions and in related compensation claims and uncertainty remains about the number of claims that will now be made.

The UK Government is still considering whether or not to use the legislative process to reverse the House of Lords’ decision in England and Wales, although it has undertaken a consultation on the Government’s response to the decision and on what should be done to support those diagnosed with pleural plaques. The Government will no doubt be monitoring any developments in Scotland following the passing of Scottish Bill. It is anticipated that a challenge will be mounted on behalf of part of the Insurance Industry to try and over turn the Holyrood legislation. 

For details of developments following the House of Lords' decision in 2007, see our time line. 

The information contained in this article is given for general information only and does not constitute legal advice on any specific matter.