Axa General Insurance Limited+axa Insurance Uk Plc+norwich Union Insurance Limited+royal And Sun Alliance Insurance Plc+zurich Insurance Plc For Judicial Review Of The Damages (asbestos Related Conditions)(scotland) Act 2009
| Jurisdiction | Scotland |
| Judge | Lord Glennie |
| Neutral Citation | [2009] CSOH 57 |
| Court | Court of Session |
| Date | 27 April 2009 |
| Published date | 27 April 2009 |
| OUTER HOUSE, COURT OF SESSION [2009] CSOH 57 | |
| OPINION OF LORD GLENNIE in the Petition of (FIRST) AXA GENERAL INSURANCE LIMITED, (SECOND) AXA INSURANCE UK plc, (THIRD) NORWICH UNION INSURANCE LIMITED, (FOURTH) ROYAL & SUN ALLIANCE INSURANCE plc and (FIFTH) ZURICH INSURANCE plc Petitioners; For Judicial Review of the Damages (Asbestos-related Conditions) (Scotland) Act 2009 |
Petitioners: Dean of Faculty, Munro; Brodies LLP
Scottish Ministers: Dewar QC, Mure; OSSE
27 April 2009
[1] In this petition for judicial review, the petitioners contend that the Damages (Asbestos-related Conditions) (Scotland) Act 2009 ("the Act"), which was passed by the Scottish Parliament on 11 March 2009 and received the Royal Assent on 17 April 2009, is outwith the legislative competence of the Scottish Parliament on the grounds of its incompatibility with certain Convention rights. They rely in particular upon Article 6 of the European Convention on Human Rights (Right to a fair trial) and Article 1 of the First Protocol thereto (Protection of property). The petitioners also mount a challenge to the Act on grounds of irrationality, or Wednesbury unreasonableness, and arbitrariness. The Act has not yet come into force. The Scottish Ministers intend to make the appropriate statutory instrument within the next few days with a view to bringing the Act into force on 17 June 2009.
[2] The petitioners seek a first order in the petition. That is not opposed. It is anticipated that a first hearing can take place early in June. Meanwhile, the petitioners move for interim interdict to prevent the Scottish Ministers from bringing the Act into force before their challenge to its validity can be heard and determined.
[3] I heard argument on the motion for interim interdict over two days at the end of last week. The motion was opposed by the Scottish Ministers whose caveat was triggered. There was no appearance on behalf of the Advocate General, who is also named as a respondent to the petition but has not yet been served with the petition. Nor was there any appearance on behalf of any other parties who might claim to have an interest in supporting the validity of the Act.
[4] It is not in dispute that the Act was passed in order to reverse the decision of the House of Lords in Rothwell v. Chemical & Insulating Co. Ltd. [2008] 1 AC 281 in so far as that decision might otherwise be applied in Scotland. In that case, the House of Lords held that asymptomatic pleural plaques (i.e. areas of fibrous thickening of the pleural membrane surrounding the lungs) resulting from exposure to asbestos did not constitute damage capable of giving rise to a cause of action in damages for negligence.
[5] In light of the careful submissions advanced in argument before me, I should explain briefly what I understand to be the reasoning of the House of Lords in Rothwell. It was admitted that the exposure of the claimants to asbestos dust constituted a breach of the defendants' duty to them. The question was whether the claimants could show that they had suffered damage as a result of that breach of duty, so as to complete their cause of action in negligence (a cause of action in tort being complete only upon proof of damage). It was held that they could not. On the agreed medical evidence, the pleural plaques, although indicative of the extent to which an individual had been exposed to asbestos and had inhaled asbestos fibres, could not be categorised as a "disease" or an "impairment of physical condition" (per Lord Hoffman at para.10, quoting the judge's "unassailable" findings of fact). They did not cause any symptoms or increase the susceptibility of the individual to other diseases or shorten his expectation of life - in short, they had "no effect upon their health at all" (ibid at para.11). The plaques were not themselves causative of asbestos-related disease, or of any impairment of lung function or disablement (per Lord Scott of Foscote at para.63). They were not visible or disfiguring; and neither the inhalation of the fibres not the development of the pleural plaques involved any pain or physical discomfort (per Lord Scott at para.69). Other statements to similar effect appear in the other Opinions in the House of Lords. The effect of the evidence was summarised by Lord Phillips of Worth Matravers at para.10 of his judgment in the Court of Appeal, reported at [2006] ICR 1458, a passage relied on in the petition. Accordingly, the existence of pleural plaques could not suffice to make the negligent exposure to asbestos actionable. Indeed it appears that this was conceded throughout the litigation up until the House of Lords.
[6] The principal argument in the House of Lords concerned the "aggregation theory". A person who has developed pleural plaques may be apprehensive as to whether the presence of asbestos fibres in the lungs and pleura, of which pleural plaques are indicative, "may independently cause life-threatening or fatal diseases such as asbestosis or mesothelioma" and, in consequence, "a diagnosis of pleural plaques may cause the patient to contemplate his future with anxiety or even suffer clinical depression" (per Lord Hoffman at para.1); or, as Lord Scott put it (at para.63) "the diagnosis of the presence of pleural plaques may ... contribute to or heighten the anxiety of the individual that he may develop a life-threatening asbestos-related disease." Such anxiety was not of itself actionable. Nor was the risk that a life-threatening asbestos-related disease might subsequently develop. However, it was noted, again in accordance with well established principles, that, if the exposure to asbestos had caused damage (in the form of physical injury) and the cause of action in negligence was therefore complete, the claimant might, in addition to damages for that physical injury, also recover damages for the anxiety and for the risk that his condition might deteriorate in the future. The aggregation theory advanced by the claimants in the House of Lords was that even though the pleural plaques by themselves did not constitute damage, they did constitute damage when combined with the anxiety and the risk that the condition might worsen in the future. That theory was rejected.
[7] In the 20 years or more before Rothwell, as was noted by Lord Rodger of Earlsferry at para.79, employers and their insurers had settled many claims for damages by persons who had been exposed to asbestos at some point during their working lives and who were subsequently diagnosed as having asymptomatic pleural plaques. In the lead up to Rothwell, a large number of pleural plaque cases which were before the courts - I was told they number about 600, principally in the Court of Session - were sisted, to await the decision of the House of Lords. Rothwell was perceived as having changed the law and deprived a large number of claimants and potential claimants of their (ex hypothesi justifiable) right to compensation. Whether or not this is an accurate characterisation of the decision in Rothwell is beside the point. The decision gave rise to much concern. On 7 November 2007 there was a debate in the Scottish Parliament on a motion expressing concern about the ruling. On 29 November 2007 the Scottish Ministers announced their intention to bring in a Bill to deal with the situation. The Bill was introduced into the Scottish Parliament on 23 June 2008 with the stated objective of preventing the decision of the House of Lords in Rothwell, which was an English case, from having effect in Scotland. There is little doubt that, were it not for the Act, the Rothwell decision would be applied in Scotland: see e.g. Wright v. Stoddard International plc and Novartis Grimsby Ltd [2007] CSOH 173.
[8] The Act seeks to do this by enacting that asbestos-related pleural plaques are a non-negligible personal injury which constitutes actionable harm for the purposes of a personal injuries action. The substance of this provision is in section 1, which is in the following terms.
"1 Pleural plaques
(1) Asbestos-related pleural plaques are a personal injury which is not negligible.
(2) Accordingly, they constitute actionable harm for the purposes of an action of damages for personal injuries.
(3) Any rule of law the effect of which is that asbestos-related pleural plaques do not constitute actionable harm ceases to apply to the extent it has that effect.
(4) But nothing in this section otherwise affects any enactment or rule of law which determines whether and in what circumstances a person may be liable in damages in respect of personal injuries."
Section 2 does the same thing for pleural thickening and asbestosis which has not caused and is not causing impairment of a person's physical condition. Section 3 deals with limitation. It provides that, in an action for damages for personal injury where the damage claimed includes asbestos-related pleural plaques, the period beginning with 17 October 2007 (the day of the decision in Rothwell) and ending with the day on which the section comes into force is to be left out of account for purposes of limitation. Section 4 provides that, except in relation to claims which have settled or been determined before the Act comes into force, "sections 1 and 2 are to be treated for all purposes as having always had effect".
[9] There are three matters of particular importance to note in the above summary of the Act.
(1) The first is that, in stating that pleural plaques are a personal injury which is not negligible (and that they constitute actionable harm for the purposes of action of damages for personal injuries), the Scottish Parliament has not, as might appear at first blush, simply legislated into being a "fact" which is at odds with current medical expert opinion, so that the courts are required to award substantial damages for a condition which involves neither pain, physical discomfort nor any disability. The question whether...
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