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Scottish compensation cases have been on hold since 2006 when insurers in England first challenged the right of pleural plaque sufferers to receive compensation. Although the House of Lords ruled in 2007 that compensation would no longer be payable in the UK, the Scottish Parliament introduced their own law to protect the right to compensation in Scotland.
This law was challenged by the insurers Axa General Insurance Ltd, AXA Insurance UK Plc, Norwich Union Insurance Ltd, Royal & Sun Alliance Insurance Plc and Zurich Insurance Plc who sought a Judicial Review of the legitimacy of the law. Their first challenge was unsuccessful, prompting the insurers to lodge a further appeal which has today been dismissed.
Phyllis Craig MBE, Chair of Clydeside Action on Asbestos stated:
“I am extremely pleased that the insurers appeal has been unsuccessful. Since the introduction of the law in June 2009 the insurers have repeatedly tried to undermine the rights of those with an asbestos related condition. Hundreds of people across Scotland have been waiting for over five years to hear if they can or cannot proceed with their claim for compensation. The elation felt following the introduction of the law in Scotland was overshadowed by the insurer’s determination to exhaust the appeals process. Their delaying tactics have considerably contributed to the stress and anxiety of those affected. I sincerely hope that this puts an end to the insurers trying to avoid their responsibilities and that the cases can now proceed”.
Ron Marsh has been diagnosed with pleural plaque. He said:
“When I was diagnosed I was advised to pursue a civil case for compensation. This wasn’t foremost in my mind as I was concerned about my diagnosis. However, I felt strongly about the fact that I had been exposed to asbestos at a time when the dangers of asbestos were known. I did seek legal advice in 2006 and my case has been unable to progress since then. Whilst the insurers seemed determined to avoid their obligations by instigating lengthy appeals processes, I have been living with considerable anxiety about my health and what the future holds for me. The last few years have been incredibly frustrating and I am hopeful that my case can now proceed”.
Frank Maguire of Thompsons Solicitors continued:
“This is a great victory for everyone who has been involved in the pleural plaque campaign. The insurers must now stop their obstructive and unjust delaying tactics and recognise that pleural plaque is a compensatable condition in Scotland, and that this is enshrined in law. I continue to vigorously pursue these cases on behalf of those who were negligently exposed to asbestos simply by going to work”.
Ian McFall, Thompsons Solicitors, England added:
“This means, in Scotland, the rights of people with pleural plaques are regarded as more important than the commercial interests of insurers, which is how it ought to be”.
The Scottish Parliament took the decision to introduce a law in Scotland after the House of Lords issued a judgement in 2007 that effectively took away the right to compensation for pleural plaque in the UK.
Stuart McMillan MSP has supported the need for legislation in Scotland from the outset. He stated
“The insurers have failed in their bid to challenge not only the rights of people who live with the consequences of exposure to asbestos, but also our democratic Scottish Parliament. “I have heard the testimonies of many people with pleural plaque from both my constituents and farther afield. Their sense of anger and frustration at the continual delays is hopefully now at an end. I look forward to the cases proceeding, as was the will and intent of the Scottish Parliament”.
Bill Butler MSP added:
“The law in Scotland was enacted after a broad consultation, and with cross party support. It is unacceptable that the very people who contributed their skills and labour to the growth of this country have been subjected to continual challenges to their right to compensation. I am delighted that the insurers have not succeeded. They must act responsibly and accept that pleural plaque cases must now be examined with a view to awarding compensation”.
The insurers are however preparing to appeal the decision to the Supreme Court.
Nick Starling, the Association of British Insurers (ABI) Director of General Insurance and Health, said: “We are disappointed by this judgment. The insurers who brought this judicial review did so because there are fundamental legal principles at stake, and they remain confident that there is significant substance in their grounds for challenging the Damages Act.The insurers are therefore preparing to appeal the judgment to the Supreme Court.
“The Damages Act is fundamentally flawed as it ignores overwhelming medical evidence that pleural plaques are symptomless, and the well-established principle of negligence that compensation is payable only when there is physical harm”.
Compensation and Benefits