Insurers challenge to asbestos law thrown out
8 January 2010
Challenge to the Damages (Asbestos–related Conditions) (Sc) Act 2009 is Unsuccessful
The long awaited decision of Lord Emslie on the judicial review challenging the legality of the The Damages (Asbestos – related Conditions) (Scotland) Act 2009 (Click here to view the Act) has been issued today. The decision follows 22 days of legal arguments that took place last year.
The Scottish Parliament passed the 2009 Act to reverse the effect of the House of Lords’ decision in 2007 in the case of Rothwell v Chemical and Insulating Co. Ltd. In that case, the House of Lords decided unanimously that pleural plaques did not constitute an injury or disease in the eyes of the law and, on that basis, those diagnosed with pleural plaques did not have a right to claim compensation for this. Pleural plaques are caused by exposure to asbestos. In the vast majority of cases they are asymptomatic.
The legality of the 2009 Act was challenged by a group of insurers on a number of grounds and Lord Emslie rejected all of these. He decided that the passing of the 2009 Act had not breached the insurers’ human rights. Although Lord Emslie expressed sympathy for the insurers regarding the way their interests had been treated during the legislative process, that did not amount to a breach of the insurers’ rights under Article 6 of the European Convention on European Rights.
His Lordship commented on the fact that no organisation that would be directly affected by the legislation – for example a local authority or an uninsured business - had challenged the legislation.
His Lordship also decided that the insurers’ argument that the 2009 Act had no rational basis, and that its aims and achievements were "unreasonable, irrational and arbitrary” came nowhere near the standard of “irrationality” that would be necessary to make an Act of the Scottish Parliament invalid.
It remains to be seen whether the decision is appealed.
Click here to view Lord Emslie's decision
If you would like more information about the decision or any aspect of the Health and Safety services we provide, please contact David Stevenson, Partner.
The information contained in this article is given for general information only, reflects the current law on the date of the article, and does not constitute legal advice on any specific matter