Scottish Parliament Strengthens Asbestos Claims Bill

Action is to be taken to ensure that people with two asbestos-related conditions continue to be eligible to claim for damages, as well as people with pleural plaques.

Justice Secretary Kenny MacAskill announced in November last year that a bill was to be introduced to the Scottish Parliament at the earliest opportunity to reverse the House of Lords judgement on pleural plaques.

This will mean that those people negligently exposed to asbestos who are diagnosed with pleural plaques will continue to be able to raise an action for damages.

However, it is possible that people who have been negligently exposed to asbestos and have developed asymptomatic asbestosis or pleural thickening may not be able to raise a claim for damages following the House of Lords Judgment.

The Scottish Government intends to address this apparent anomaly by including these two conditions in the bill when it is introduced.

A partial regulatory impact assessment on the proposed bill issues for consultation today.
Kenny MacAskill said:

"This Government has already taken steps to ensure that those who suffer the effects of asbestos as a result of our industrial past are able to claim for damages.
"It is right and proper that we should not turn our backs on those who contributed to our nation's wealth in the past. Pleural plaques in anyone exposed to asbestos mean they have a greatly increased lifetime risk of developing mesothelioma and a small but significantly increased risk of developing bronchial carcinoma. This will mean that people diagnosed with this condition will have to live with the worry of possible future ill health for the rest of their lives. That is why this Scottish Government announced last November that we are to take steps to reverse the House of Lords Judgment and ensure that people with pleural plaques can continue to raise an action for damages. So that the House of Lords Judgment does not have an effect in Scotland we need to make sure that people who have developed symptomless forms of other asbestos related conditions can continue to be able to claim for damages. So we intend to include provisions in the bill to make sure that is the case.
This Government takes this issue very seriously and I hope this move to help those who have been affected by exposure to asbestos will bring some relief to people living with this condition."

Harry McCluskey, secretary of Clydeside Action on Asbestos said:

"We are delighted with the news that the Justice Secretary Kenny MacAskill will incorporate pleural thickening and asbestosis within the pleural plaque bill. This will allow those people with any asbestos related disease to continue to have the legal right to pursue civil damages.
This charity would like to take the opportunity of thanking Mr MacAskill, and all those who supported the introduction of the bill, on behalf of all sufferers throughout Scotland."

The House of Lords Judgment in Johnston v NEI International Combustion Ltd published on Wednesday, October 17, 2007 ruled that symptomless pleural plaques do not give rise to a cause of action under the law of damages. Prior to this Judgment, pleural plaques had been regarded as actionable for over 20 years. Concerns have been expressed in and beyond the Scottish Parliament about the Judgment.

The Scottish Government announced on November 29, that it intended to introduce a Bill which will reverse the House of Lords Judgment and enable those negligently exposed to asbestos who have been diagnosed with pleural plaques to continue to be able to raise and pursue actions for damages in Scotland. The provisions of the Bill would take effect from the date of the Judgment i.e. October 17, 2007.

Pleural plaques are small areas of scarring on the lungs which are benign and are an indicator of exposure to asbestos. Although they do not cause or develop into a more serious asbestos-related condition, they do signify an increased risk of developing mesothelioma because of exposure to asbestos.

Although the judgement was restricted to pleural plaques, other indicators of significant exposure, such as asbestosis and pleural thickening can also both be detected while symptomless. In contrast with pleural plaques, they are usually (but not always) progressive and symptoms/impairment will occur. However, so as to reduce the risk of a narrow interpretation of the case giving rise to the anomaly that people with symptomless pleural plaques may claim because of the Bill, while people negligently exposed to asbestos who have developed symptomless forms of other asbestos related conditions can't, the Scottish Government intend to include provisions to cover these other asbestos-related conditions.

This may affect only a small number of asbestosis and pleural thickening cases. Information on this will be gathered through the partial regulatory impact assessment.

The Government expects to introduce the Bill, subject to Parliamentary timetabling, before the summer recess.

Source: www.scotland.gov.uk

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