Wilson announces start of legislation for pleural plaques claims

Finance Minister Sammy Wilson has announced that the Damages (Asbestos-related Conditions) Act (Northern Ireland) 2011 will come into operation on 14 December 2011.
~ Monday, 5 December 2011

Minister Wilson and Nigel Dodd's with Mr Stanley Blair, Chairman of the H&W Pensioners Action Group who have been at the forefront in the campaign for justice to restore the right to compensation for victims of Pleural Plaques.

The purpose of the 2011 Act is to reverse the decision of the House of Lords in Johnston v NEI International Combustion Ltd and conjoined cases 2007. In that case, the Court had ruled out the possibility of a claim in negligence for asymptomatic asbestos-related pleural plaques.

The corresponding legislation in Scotland was the subject of a long-running challenge, which was initiated by insurers and which came before the UK Supreme Court. On 12 October 2011, the Supreme Court rejected the insurers’ claims that the legislation infringed their human rights and was outside the competence of the Scottish Parliament.

The 2011 Act specifically provides that asymptomatic asbestos-related pleural plaques and certain other asbestos-related conditions constitute actionable personal injury. This means that, from 14 December 2011, people in Northern Ireland will once again be able to claim compensation in respect of those conditions.

Mr Wilson said: “I am very pleased to announce the commencement of the Damages (Asbestos-related Conditions) Act (Northern Ireland) 2011.

“The challenge to the corresponding legislation in Scotland cast a long shadow and I fought hard to get the Northern Ireland legislation through the Assembly and submitted for Royal Assent.

“However, I always believed that the policy objectives of the Act were just and fair and that belief has now been vindicated by the ruling of the UK Supreme Court in relation to the Scottish legislation.

“The 2011 Act may be short and targeted, but it is a vitally important Act, which seeks to ensure the continued availability of a method of redress for ordinary working men and women.”

The Minister continued: “It must be devastating to be told that you have developed a condition as a result of having been exposed to asbestos. To be told then that you couldn’t claim compensation for that condition would clearly make the matter worse.

“That was the effect of the decision in the Johnston case and it is not surprising that people affected by the decision sought redress through Ministers and the Assembly.

“The 2011 Act essentially reverses that decision and, whilst the ability to pursue a claim in damages will not fully compensate for any wrong which was done, I hope that those affected will derive some comfort from the fact that the wrongdoer can once again be held to account.”

Notes to editors:

1. On 17 October 2007 the House of Lords unanimously ruled, in Johnston v NEI International Combustion Ltd and conjoined cases, that the existence of symptomless pleural plaques does not constitute actionable or compensatable damage.
2. Pleural plaques are small localised areas of fibrosis found within the pleura of the lung caused by asbestos exposure. Earlier decisions had established that it was possible for damages to be awarded for negligent exposure to asbestos which had led to the presence of symptomless pleural plaques. However, following the decision in the Johnston case, this was no longer possible.
3. The ruling prompted much debate, with some arguing that the ruling was unjust and should be overturned and others arguing that legislative amendment would undermine the law of negligence and possibly breach the European Convention on Human Rights (“ECHR”) . Scotland and Northern Ireland legislated to reverse the decision. However, the UK Government decided to introduce a limited no fault payment scheme in England and Wales. The scheme ran from August 2010 to August 2011 and was only open to those who had commenced, but not settled, a claim prior to 17 October 2007 (the date of the ruling in Johnston).
4. A number of insurers sought to challenge the Damages (Asbestos-related Conditions) (Scotland) Act 2009 by way of judicial review. Their primary complaint was that the Act infringed their human rights. However, they also argued that the decision to bring forth the legislation was irrational. The insurers’ petition was dismissed by the Outer House of the Court of Session and, on appeal, by the Inner House of the Court of Session. The insurers then appealed to the UK Supreme Court.
5. Prior to the 2011 Act receiving Royal Assent, the Attorney General for Northern Ireland (“AG”) had referred the legislation to the Supreme Court, on the basis that it was outside the legislative competence of the Assembly, by reason of contravention of the ECHR. The AG later withdrew his reference and submitted a written intervention in the Scottish appeal before the UK Supreme Court, which raised similar concerns. The Department also submitted a written intervention in the appeal which took a contrary approach.
6. On 12 October 2011 the UK Supreme Court rejected the appeal and ruled that the 2009 Act was within the competence of the Scottish Parliament.
7. In July 2011 several insurers also applied to the High Court in Northern Ireland for leave to apply for judicial review of the Damages (Asbestos-related Conditions) Act (Northern Ireland) 2011. That application was adjourned, pending the outcome of the appeal in the UK Supreme Court.
8. Media enquiries should be addressed to the Department of Finance and Personnel Communications Office on Tel: 028 9016 3388 or 028 9016 3389. Out of Office hours please contact the Duty Press Officer via pager number 07699 715 440 and your call will be returned.
9. Please note that the Department cannot offer advice on the handling of individual claims. If a claimant has a query about next steps or his or her claim, it should be raised with his or her lawyer.