Pleural Plaques Bill: Justice Committee report

The Justice Committee of the Scottish Parliament published its report on the Damages (Asbestos-related Conditions) (Scotland) Bill on 13 October 2008, signalling its approval of the principles of the Bill, but raising questions about its financial implications. 

On the legal issues surrounding the Bill (see previously here and here), the report acknowledges that the decision of the House of Lords in Johnston v NEI International Combustion Ltd [2007] UKHL 39 was legally impeccable, but points out that damages had been awarded to victims of pleural plaques for 20 years before that case, and continues: 

“The Committee takes the view that people with pleural plaques have a specific physical manifestation of asbestos exposure.  The Committee is of the view that this signifies that their risk of developing mesothelioma is many times greater than that of the general population.  Furthermore, the Committee considers that the resultant effect on the lifestyle and sense of wellbeing of those diagnosed with pleural plaques is substantial and adverse.  Mesothelioma and other asbestos-related diseases are widely recognised in Scotland, particularly in certain communities, as a common consequence of established asbestos exposure.  The Committee is not persuaded by the suggestion that the anxiety felt by those diagnosed with pleural plaques can be allayed by appropriate medical explanations.”

The Committee also considers the argument, advanced in evidence before it by Dr Martin Hogg of the Edinburgh Law School (Official Report, 2 Sept 2008, col 1065 ff), that the Bill is inconsistent with the general principles of the law of delict.  That view is accepted, but “the Committee does not accept that the Bill will overturn or undermine this law generally as the Bill is expressly restricted to asbestos related conditions.”  The Committee also rejects the argument that a dedicated compensation fund would represent a better approach to the problem.  Courts seem to be the preferred vehicle because in this arena those who negligently exposed people to asbestos can be seen as being “punished” (see para 57 of the report). 

The Bill will have its Stage 1 in the Scottish Parliament in November and may yet reach the statute book before the end of the calendar year.  For a critical discussion of its content, see Dr Hogg’s excellent article, “Asbestos related conditions and the idea of damage in the law of delict” 2008 SLT (News) 207-212 (available also on Westlaw). 

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