Thursday 25th February 2010
The insurance industry has been unsucessful in its latest moves to overturn the damages (Asbestos-related conditions) (Scotland) Bill, passed on 11 March 2009, following a January 2010 Judgement from Lord Emslie.
This overturned a House of Lords Ruling that found as plaques are asymptomatic and, therefore, cannot be compensated for. Axa, Aviva, RSA and Zurich had subsequently attempted to get this revoked so that parity could be restored with England and Wales.
However, in a lengthy judgement, although Lord Emslie decided certain issues in favour of the insurers, he rejected the challenge in its three main arguments.
While expressing some sympathy for their position, he dismissed the application on a number of grounds. He said the petitioners (as insurers) are not actually parties to any affected court proceedings and that the Act does not relevantly interfere with pending actions anyway and that the new legislation can in any event be justified on what the European Court of Human Rights at Strasbourge terms “compelling grounds on the general interest”.
Lord Emslie said “there is clearly room for” differences of opinion as to whether the Parliament was right to legislate in the way it did, and it remains to be seen whether the 2009 Act will prove to have adverse legal or political consequenses in years to come”.
But he also said he does not accept theat the insurers’ complaints come anywhere near the standard of “irrationally” needed to onvalidate and Act of the Scottish Parliament.
Last year the Association of British Insurers (ABI) director of general insuance and health, said The Damages (Asbestos-related Conditions) (Scotland) Bill overlooked a fundamental legal principle that comensation is paid where there are physical symptoms. He added the ruling could have “profound and unintended consequences beyond pleural plaques”.
Following the decision on 8 January 2010 the ABI expressed its dissapointment, and said it was considering an appeal.
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