Northern Ireland has become the latest jurisdiction to introduce legislation to circumvent the October 2007 House of Lords decision that held pleural plaques, an asymptomatic scarring of the lungs caused by exposure to asbestos, was not compensatable (Rothwell v Chemical & Insulating Co Ltd), and, further, individuals who develop psychiatric illness as a result of the knowledge they have pleural plaques were not entitled to claim (Grieves v FT Everard & Sons Ltd).
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This new legislation (the Irish Act came into force on December 14, 2011) follows a recent decision by the English Supreme Court on the validity of a similar Scottish legislation reversing the House of Lords’ judgment.
Indeed, when the Scottish government introduced the Damages (Asbestos-related Conditions) (Scotland) Act 2009, which came into force on June17, 2009 and provided asbestosis constituted and was to be treated as always having constituted actionable harm for the purposes of damages for personal injury, various insurers challenged the lawfulness of the act.
Insurers claimed the new law was incompatible with their rights under art 1 of Protocol 1 to the European Convention on Human Rights 1950, which provides “every natural or legal person is entitled to the peaceful enjoyment of his possessions. No-one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law”, and it was in consequence outside the legislative competence of the Scottish parliament.
Further, insurers contended the new law was open to judicial review on common law grounds as an unreasonable, irrational and arbitrary exercise of the legislative authority conferred by the Scotland Act 1998 on the Scottish parliament.
The judicial review proceedings commenced shortly after the Scottish parliament enacted the new law and continued all the way to the Supreme Court, which, ultimately, gave judgment on October 12, 2011.
The Supreme Court found against the insurers and held the new law did not infringe their rights.
As a result, the exercise of legislative authority could not be said to have been unreasonable, irrational or arbitrary.
As expected, and as mentioned in our earlier article (Insuranceday.com, Oct 20, 2011), other jurisdictions in the UK are passing or are about to pass similar legislation.
The Northern Ireland Legislation is practically a carbon copy of the Scottish act and stipulates asbestos-related pleural plaques are a personal injury that constitute action of all damage for the purposes of an action for damages for personal injuries.
It is possible that, as a result, the Welsh assembly will follow suit and pass a similar law.
Asbestos, therefore, continues to be an important factor to be considered by large insurance companies and a hotbed of judicial activity.
Another important decision is due later on in 2012 when the Supreme Court delivers its much-awaited judgment on the mesothelioma trigger litigation.