Axa General Insurance Limited And Others For Judicial Review Of The Damages (asbestos-releated Conditions) (scotland) Act 2009
| Jurisdiction | Scotland |
| Judge | Lord Emslie |
| Neutral Citation | [2010] CSOH 2 |
| Docket Number | P490/09 |
| Date | 08 January 2010 |
| Court | Court of Session |
| Published date | 08 January 2010 |
| OUTER HOUSE, COURT OF SESSION [2010] CSOH 2 | |
| P490/09 | OPINION OF LORD EMSLIE in the petition of AXA GENERAL INSURANCE LIMITED and OTHERS Petitioners; for Judicial Review of the Damages (Asbestos-related Conditions) (Scotland) Act 2009 ____________ |
Petitioners: Dean of Faculty, QC, Munro; Brodies LLP
First Respondent: Dewar, QC, Mure, QC; Scottish Government Legal Directorate
Third to Tenth Respondents: O'Neill, QC, Pirie; Thompsons
8 January 2010
INDEX
| Paragraph | ||
| I. | Introduction | |
| General background | 1 | |
| Rothwell and the Act | 14 | |
| II. | The petitioners' locus standi | |
| Introduction | 40 | |
| Article 34 considerations | 42 | |
| Common law considerations | 52 | |
| General discussion | 58 | |
| The "Ullah principle" | 68 | |
| Specification | 78 | |
| Forum | 81 | |
| Conclusion | 83 |
| III. | Title and interest of the third to tenth defenders | 84 |
| IV. | Competency of the petitioners' challenge at common law | |
| Background considerations | 88 | |
| 103 | ||
| The decision in Adams | 111 | |
| The parties' contentions | 114 | |
| Discussion | 125 | |
| Extent of review | 142 | |
| Conclusion | 145 | |
| V. | Article 6 of the Convention | |
| The issues arising | 146 | |
| Discussion (i) Preliminary (ii) Engagement (iii) Justification | 161 163 178 | |
| Conclusion | 179 | |
| VI. | Article 1 of the First Protocol | |
| The issues arising | 180 | |
| Discussion (i) "Possessions" (ii) Interference (iii) Justification | 189 194 199 | |
| Conclusion | 226 | |
| VII. | Common law irrationality | |
| The parties' contentions | 227 | |
| Discussion | 229 | |
| Overview and conclusion | 248 | |
| VIII. | Final disposal | 249 |
I. Introduction
General background
[1] In these proceedings for judicial review the petitioners are major insurance companies. Together they challenge the lawfulness of a recent Act of the Scottish Parliament which came into force on 17 June 2009. Both prospectively and retrospectively the Damages (Asbestos-related Conditions) (Scotland) Act 2009 bears to make pleural plaques and certain other asbestos-related conditions actionable for the purposes of claims of damages for personal injuries. According to the petitioners, this unfairly burdens them with additional liabilities under indemnity insurance policies to the extent of hundreds of millions - perhaps billions - of pounds, and they now seek declaratory and reductive orders from the court in that connection. This is resisted by the compearing respondents who are (first) the Lord Advocate as representing the Scottish Ministers, and (third to tenth) a number of individuals with diagnosed pleural plaques who seek, or at least intend to seek, damages on that account from their former employers. A First Hearing on the parties' competing contentions has now taken place before me over periods totalling 22 days.
[2] Accordingly to current medical thinking (on which there is no dispute in this case), pleural plaques are physical changes in the pleura, that is, two layers of tissue which lie between the lungs, on the internal or "visceral" side, and the ribs and chest wall on the external or "parietal" side. Lubricated by serous fluid, these layers are capable of sliding against one another so as to facilitate expansion and contraction of the lungs during respiration. Plaques on the pleura may be detected radiologically as areas of fibrous tissue, and are in many cases caused by occupational exposure to asbestos. As with other asbestos-related conditions, pleural plaques tend to develop after a long latency period of twenty years or more, and it is thought that they may be present in the pleura of around fifty per cent of exposed individuals. The precise aetiology of pleural plaques remains unknown, but they may reflect a prolonged low-grade inflammatory response to the local presence of asbestos fibres or other agent.
[3] In most cases, however, pleural plaques have no discernible effect on an individual's day-to-day physical health or wellbeing. They are asymptomatic, causing no pain or discomfort. They produce no disability or impairment of function, nor are they externally disfiguring. The pleural layers continue to slide against each other as before, so that neither expansion nor contraction of the lungs is restricted. Moreover, while pleural plaques may themselves become more extensive over time, they do not progress into, or cause or contribute to the development of, any other condition. Serious and potentially fatal diseases such as lung cancer, mesothelioma (an aggressive malignancy affecting the outer lining of the lung) and asbestosis (progressive fibrosis of the lung itself) develop independently of any pleural plaques which may be present, and the risk of contracting any of these conditions (including pleural plaques) is solely attributable to an individual's past exposure to asbestos. The development of pleural plaques has sometimes been described as merely "evidential", in the sense of confirming an individual's exposure to asbestos in the past without the plaques, in themselves, being causative of anything.
[4] As against that, fibrous plaques are self-evidently abnormal and unwelcome pathological changes in the pleura. According to an expert report recently received by the UK Government (production 7/85), pleural plaques are usually bilateral; they are dense, irregularly-shaped collagenous masses with a polished or nodular surface; they tend to calcify over time; in size, each may be more than 10cm across and up to 1cm in thickness; and they may be capable of bridging gaps and of fusing into large sheets. Almost exclusively they appear on the parietal pleura (i.e. on the inner surface of the rib cage), but they may also be found in other locations such as the upper surface of the diaphragm. Not surprisingly, individuals diagnosed with pleural plaques are liable to become alarmed and anxious for the future, and this may severely reduce their enjoyment and quality of life. The diagnosis confirms significant asbestos exposure in the past, of which they may or may not previously have been aware; it underlines the much higher risk which they now face, many hundreds of times greater than for members of the population at large, of contracting lung cancer, mesothelioma or asbestosis; and in some cases it may bring to mind the suffering and perhaps death of friends, colleagues and relatives from these serious asbestos-related diseases.
[5] According to long-established common law principles applicable throughout the United Kingdom, the delict or tort of negligence is not complete until an alleged breach of duty goes on to cause "damage" to an extent recognised by the law. In the absence of such "damage" a person has no right of action, and in consequence statutory time-limits do not begin to run against him. Within the last century the need for "damage" as an essential element of actionable negligence has been repeatedly affirmed at the highest judicial level. In Lochgelly Iron & Coal Company v McMullan 1934 AC 1, at p. 25, Lord Wright said:
"In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission; it properly connotes the complex concept of duty, breach, and damage thereby suffered by the person to whom the duty was owing: on all this the liability depends...."
Observations along similar lines were made by the Lord Chancellor in Crofter Hand-woven Harris Tweed Co Ltd v Veitch 1942 SC HL 1, at pp. 5-6. In Cartledge v E Jopling & Sons Limited 1963 AC 758, Lord Evershed at pp. 773-4 confirmed that a cause of action arose on the occurrence of "... real damage, as distinct from purely minimal", and at p. 779 Lord Pearce said:
"It is for a judge or jury to decide whether a man has suffered any actionable harm and in borderline cases it is a question of degree. ...It is a question of fact in each case whether a man has suffered material damage by any physical changes in his body. Evidence that those changes are not felt by him and may never be felt tells in favour of the damage coming within the principle of de minimis non curat lex."
[6] Some years later, in the Scottish case of Brown v North British Steel Foundry Ltd 1968 SC 51, the issue for determination was the date at which the pursuer's cause of action arose for statutory limitation purposes. At pp. 64-5, the Lord President (Clyde) made the following observations:
"... To create a cause of action, injuria and damnum are essential ingredients. In the present case there is no evidence of any injuries to the workman's lungs in 1949. He had then merely a deposit of dust in his lungs, which might or might not subsequently create an injury. But, in addition, he had then sustained no damnum. He could not then have been awarded damages for any loss, because at that stage he had sustained no loss of wages and had suffered none of the discomforts and disabilities which, he avers, followed upon the onset of pneumoconiosis and which in fact flowed from the outbreak of that disease in 1955."
More recently still, in a conjoined group of test cases on pleural plaques claims south of the border, finally reported sub nom. Rothwell v Chemical and Insulating Co Limited 2008 1 AC 281, the necessity for "damage" was again positively affirmed by all members of the appellate committee of the House of Lords. Two of their Lordships on that occasion were Scottish judges, Lord Hope of Craighead and Lord Rodger of Earlsferry, both of whom formerly held the high offices of Lord President of the Court of Session and Lord Justice General of Scotland.
[7] It is also well established that, as a matter of principle, damages are not recoverable at common law for either (i) a perceived risk of suffering actionable "damage" in the future, or (ii) free-standing fear, anxiety or distress. If...
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