Pleural Plaques Compensation is available in Northern Ireland again.

Given the traditional history of heavy industry in Northern Ireland it is no surprise that asbestos related conditions have traditionally been the subject of litigation here.

The House of Lords Decision in Rothwell .v. Chemical and Insulating Co Ltd [2007] UKHL 29 decided that the mere presence of pleural plaques did not constitute injury which could give rise to a claim for damages. Up to then, Plaintiffs claiming upon diagnosis of pleural plaques had been recovering moderate amounts of damages.

On foot of the Rothwell decision The Scottish Parliament passed The Damages (Asbestos – related conditions) (Scotland) Act 2009. It provided that asbestos related pleural plaques and certain other asbestos related conditions did constitute personal injury and were actionable under Scots Law.

The insurance industry sought to challenge the validity of that Act on two fronts, namely;

  1. That it is incompatible under Article 1 of Protocol 1 of the European Convention of Human Rights and therefore is outside the legislative competence of the Scottish Parliament under the Scotland Act 1998; and
  2. That it is open to judicial review as an unreasonable, irrational and arbitrary exercise if a legislative authority of the Scottish Parliament.

The Supreme Court on Appeal from the Scottish Court of Session dismissed the Appeal.

It held that in order for such an Act to comply with Article 1 of Protocol 1 of the European Convention on Human Rights it must be shown that the Act was pushing a legitimate aim and was reasonably proportionate to that aim.

The Court accepted that the Act pursued a legitimate aim and that it was reasonably proportionate.

On the second limb of the Appeal the Court found that it would be wrong for the Judges to substitute their views as to what is rational or reasonable for the considered judgment of a democratically elected legislature.

The decision of the Supreme Court paved the way for equivalent legislation in Northern Ireland in the form of the Damages (Asbestos-Related Conditions) Act (Northern Ireland) 2011which has been in force since December 14th 2011. http://www.legislation.gov.uk/nia/2011/28/2011-06-2