Human Rights, Property and the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill in the Supreme Court

Document Cited authorities (12) Cited in Related
DOI10.3366/elr.2015.0297
Pages373-378
Author
Date01 September 2015
Published date01 September 2015
<p>The Recovery of Medical Costs for Asbestos Diseases (Wales) Bill was referred to the Supreme Court by the Counsel General for Wales for a determination of its legislative competence.<xref ref-type="fn" rid="fn1"><sup>1</sup> </xref><fn id="fn1"><label>1</label> <p><italic>Re Recovery of Medical Costs for Asbestos Diseases (Wales) Bill</italic> <a href="https://vlex.co.uk/vid/ref-re-recovery-of-818715965">[2015] UKSC 3</a>, <a href="https://vlex.co.uk/vid/ref-re-recovery-of-818715965">[2015] 2 WLR 481</a>.</p> </fn> Two potential issues arose: first, whether the Bill purported to legislate on matters which had not been devolved to the Welsh Assembly; and second, whether it contravened Article 1 of the First Protocol to the <a href="https://international.vlex.com/vid/convenio-europeo-libertades-fundamentales-67895138">European Convention on Human Rights</a> (“A1P1”). The court was unanimous in determining that the Bill was incompetent on both grounds, although the minority (Lord Thomas and Lady Hale) reached that conclusion on considerably narrower grounds than the majority (Lords Mance, Hodge and Neuberger). The decision has relevance for the proposed Recovery of Medical Costs for Asbestos Diseases (Scotland) Bill, in respect of which the initial consultation closed shortly after this judgment was handed down.<xref ref-type="fn" rid="fn2"><sup>2</sup> </xref><fn id="fn2"><label>2</label> <p>The proposed Bill and consultation document are available at <ext-link ext-link-type="uri" xlink:href="http://www.scottish.parliament.uk/parliamentarybusiness/Bills/85164.aspx"><italic>http://www.scottish.parliament.uk/parliamentarybusiness/Bills/85164.aspx</italic> </ext-link>.</p> </fn> This note summarises the findings of the Supreme Court before discussing the A1P1 implications of the decision for the potential Scottish Bill.</p> THE WELSH BILL

Where a person in the UK pays compensation in respect of physical or psychological injury to another, they also become liable for NHS charges in relation to the treatment of that injury.3

Health and Social Care (Community Health and Standards) Act 2003 s 150.

The Bill proposed creation of a similar liability in respect of Welsh NHS charges for treatment of asbestos-related diseases. Section 2 sought to impose liability on any person who paid compensation for an asbestos-related disease. Such “compensators” would typically be employers who had negligently exposed the sufferer to asbestos during his working life. Section 14 proposed that, where the payment made by a compensator was covered by an insurance policy, the policy was to be treated as covering liability for NHS charges. This would have applied to policies issued both before and after the section came into force

In the Supreme Court judgment, the majority interpreted the legal effect of these provisions somewhat differently from the minority. The majority view, set out by Lord Mance, was that the Bill would impose a new quasi-tortious statutory duty of care on compensators, together with a new contractual liability on the insurers of those compensators.4

Para 6.

The minority view set out by Lord Thomas considered that, since the cost of medical care is an established head of recovery in a compensation claim, the Bill imposed no new liability on compensators. Rather, it removed the benefit formerly enjoyed by compensators of that cost being met by the state – a benefit that compensators could have had no legitimate expectation would continue. The “machinery” for the collection of these costs placed responsibility directly on compensators, rather than on those in receipt of treatment who might then recover the costs from compensators, in order to maximise efficiency and minimise stress for sufferers.5

Para 77; also paras 96–102.

 The same result obtained for insurers to the extent that they would always have been liable to indemnify costs arising under this head of recovery. However, the Bill proposed that insurers be made liable for the full value of NHS charges, without regard to the fact that an insurance policy would usually restrict liability by way of deductibles and a policy limit. To the extent that these restrictions were ignored by the Bill, the minority accepted that a new contractual duty was being placed on insurers.6

...

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