Scottish Government
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Help for asbestos sufferers

The Scottish Government yesterday published a new bill that overrules the decision taken by the House of Lords last October that asymptomatic pleural plaques do not give rise to a cause of action under the law of damages.

The provisions in the bill will mean that people negligently exposed to asbestos who are diagnosed with pleural plaques will continue to be able to raise an action for damages.

Community Safety MInister Fergus Ewing said:

"Industries such as ship building and construction contributed to our nation's wealth in the past. Sadly however these industries have also given many Scots a legacy which still impacts on their lives today through exposure to asbestos.

"It is therefore right and proper that we should not turn our back on these people. That is why the Scottish Government has taken urgent steps to overrule the House of Lords judgement and ensure that people with pleural plaques can continue to raise an action for damages.

"The bill has been widely welcomed by asbestos groups and other bodies including the Faculty of Advocates. Most of the opposition to the bill is from insurers and business interests. They have concerns about increased costs of claims and insurance premiums and that the bill will open the floodgates for claims for other conditions that are not currently compensatable.

"I am aware of those concerns, but believe that fears about wider effects of the bill are exaggerated. The bill will be concerned only with three asbestos-related conditions - pleural plaques; symptomless pleural thickening; symptomless asbestosis- and will have no effect beyond those conditions.

"There have been claims that we are legislating for the "worried well". This is a gross misrepresentation of people who have a significantly higher risk than the general population of developing serious asbestos-related disease.

"There has been evidence that lawyers who handled personal injury claims have benefited more than the victims. It is certainly not our intention to line the pockets of lawyers. In the past the costs associated with settling such cases have been as high or higher than the compensation awarded.

"That is surely wrong. This situation should not continue and that is why I expect lawyers involved in such cases to ensure that they are settled more quickly and more cheaply.

"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, stated:

"This charity is delighted that Minister for Community Safety Fergus Ewing has acted with speed and efficiency in his efforts to introduce a Bill which will allow those with pleural plaques to receive the due recompense they deserve.

"This Bill will protect the rights of those with pleural plaques to be able to continue to pursue an action for civil compensation. This will certainly reduce the distress for those who know that their condition is permanent, and can develop into the more sinister asbestos related disease mesothelioma. CAA is extremely grateful to the Scottish Government on behalf of all those who suffer with an asbestos related disease."

Joe O'Neil, Treasurer, Clydebank Asbestos Group, said:

"Clydebank Asbestos Group welcome the actions of the Scottish Government in their decision to introduce the Bill prior to summer recess"

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 overrule 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. This means that people whose cases have not been settled or determined by a court, before the date the bill comes into force will be covered by the provisions of the bill.

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.

Related Information

http://www.scottish.parliament.uk/s3/bills/12-Asbestos/index.htm

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