13 October 2011
The Supreme Court has turned down an challenge by many of the major insurance companies that, if successful, would have denied compensation to pleural plaques sufferers in Scotland.
In 2007, the Court ruled that because pleural plaques (an asbestos related scarring of the lungs) normally causes no symptoms, it should not be compensated. The mental anguish caused by this disease was not taken into account.
However, the Scottish Parliament passed an Act of Parliament restoring the right to claim.
The insurance industry were not satisfied with law passed by an elected body and decided, rather unconventionally, to seek a judicial review of the Parliamentary Act, essentially saying that it was wrong and an infringement of their EC law rights. Fortunately, the Supreme Court disagreed and gave a ruling upholding the Act.
This is a significant victory for many thousands of Scottish pleural plaques sufferers and it seems likely that the Welsh and Northern Ireland governments will follow suit. Unfortunately, the position in England remains the same and many diagnosed with this disease will receive no financial support. They will never understand why the position in Scotland (and shortly Wales and Northern Ireland) is so different.
In response, Nick Starling of the Association of British Insurers (ABI) said, "Insurers remain fully committed to continuing to pay compensation to people with asbestos-related conditions”.
However, the various methods deployed by the insurance industry to limit claims would say otherwise. In another case, a select group of insurance companies have even resorted to picking holes in the wording of certain insurance policies to deny cover for mesothelioma (a terminal cancer of the lining of the lungs) sufferers.
The insurance companies claim this wording only covers injuries that occur during the period of employment. As mesothelioma develops many years later, they are seeking to deny cover for such claims. Whether or not this situation was envisaged at the time these policies were drawn up remains to be seen. Moreover, it is likely that many employers thought, when agreeing to pay insurance premiums, that such injuries would be covered. Nevertheless, the matter is now going to the Supreme Court in December.
If the insurance companies are successful, this will be a major blow to many mesothelioma sufferers. Many endure severe symptoms and become debilitated and need considerable financial assistance which can only be met by way of compensation. Given that many employers have now closed down, mesothelioma sufferers rely on these insurance policies to cover their claims. In contrast, it appears the already highly paid insurance executives involved in this case will receive large bonuses if they win. Therefore, despite the ABI’s assurances, this appears the main incentive for these insurance companies.
Asbestos solicitor Vijay Ganapathy comments:
"This illustrates the lengths to which the insurance industry will go to limit claims. It appears they will not even stop when an Act is laid down by Parliament. It is likely the insurance companies weighed the costs associated with the risk of losing such cases against the massive savings that could be made in not having to pay out compensation. This purely forensic balancing exercise wholly disregards the human suffering of those diagnosed with asbestos disease and ignores any duty they have to the employers who duly paid their premiums on the understanding their employees would be protected. It seems this industry’s ruthless campaign will continue."
If you would like to speak to a lawyer about an asbestos disease related claim please contact
Daniel Easton, recently identified by the Legal 500 as
'a renowned asbestos litigator'
, or mesothelioma claims specialist
Vijay Ganapathy for a free initial consultation on
020 7650 1200.
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