Scottish Court of Session Decisions

Pursuer: O'Neill, Q.C.; Thompsons

Defenders: McGregor; Simpson & Marwick, W.S.

12 June 2009

[1] The pursuer claims that he was exposed to asbestos when he worked for the defenders. He has developed bilateral pleural plaques. He seeks damages from the defenders for his anxiety about this diagnosis and about the possibility that he might develop serious asbestos-related diseases.

[2] In Rothwell v Chemical & Insulating Co Ltd [2008] 1 AC 281 the House of Lords held that a person who had developed asymptomatic pleural plaques had not suffered loss and damage capable of giving rise to a cause of action in damages for negligence. It appears therefore that at common law the pursuer does not have a relevant claim for damages. The Scottish Parliament has enacted the Damages (Asbestos-related Conditions) (Scotland) Act 2009 ("the 2009 Act"), which is scheduled to come into force on 17 June 2009. Section 1 of the 2009 Act provides that asbestos-related pleural plaques are a personal injury which is not negligible and constitute actionable harm. Section 4 makes this provision retrospective. The pursuer will thus acquire a retrospective right to claim damages if the 2009 Act comes into force and remains in force.

[3] Several substantial insurance companies have jointly raised proceedings for judicial review of the 2009 Act. In that application the petitioners argue that the 2009 Act is outside the legislative competence of the Scottish Parliament. They advance challenges both at common law and under the European Convention on Human Rights (Article 6 of the Convention and Article 1 of the First Protocol). The petitioners applied to Lord Glennie for interim suspension of the 2009 Act and, in an opinion dated 27 April 2009 (Axa General Insurance Ltd and Others, Petitioners), Lord Glennie refused that application. In his opinion (at paragraph 18) he expressed the view that it was likely that the judicial review petition would be the vehicle by which the legality of the 2009 Act would be tested and that actions for damages which depended for their success on the Act would be sisted or remain sisted pending the outcome of the judicial review challenge. Lord Emslie is hearing the judicial review petition at first hearing. He has heard four days of argument and parties propose a further five days of argument before him during the course of this month. I was not informed whether the petitioners planned to renew their application for interim suspension of the 2009 Act in the first hearing.

[4] Mr McGregor for the defenders, in moving for the action to be sisted, submitted that the sist of this action and six similar actions pending the resolution of the challenge to the 2009 Act would avoid unnecessary expense and inconvenience. He submitted that there was no urgency in the actions as the pursuer in each case was suing for an asymptomatic condition which was not causally linked to more serious asbestos-related conditions and essentially was seeking damages for anxiety about his health.

[5] Mr O'Neill QC for the pursuer, in opposing the motion, submitted that the defenders in this case and in the six other cases before me were not challenging the validity of the 2009 Act on human rights grounds or otherwise. He pointed out that in each case the defenders were part of British Shipbuilders, a nationalised industry, and benefited from an indemnity from the Secretary of State. As emanations of the State they could not claim the protection of Convention rights. They had stated that they were not adopting in their defences to the actions for damages the Convention arguments which the petitioners were advancing before Lord Emslie. The judicial review was not an actio popularis and the United Kingdom Government had not challenged the validity of the 2009 Act. The defenders, while unable to claim the status of victim under the Convention, sought shelter behind the judicial review challenge to which they were not a party. Should the court allow them to do so, this would cause unnecessary delay and would prolong the uncertainty which the pursuers faced. Mr O'Neill also submitted that even if the 2009 Act were invalid in a question with the insurance companies, that did not mean that it was invalid in relation to those, such as the defenders in these actions, who were not and could not be victims under the Convention.

[6] I am satisfied that it is appropriate to grant the defenders' motion in this case and in the other six cases before me on the motion roll. These actions are a small proportion of the cases which have been raised claiming damages for the development of pleural plaques as a result of exposure to asbestos. It appears from Lord Glennie's opinion in Axa General Insurance Ltd that over six hundred cases were sisted to await the House of Lords' judgment in Rothwell and that many other cases may be raised on the strength of the 2009 Act. Were these actions to proceed and, at a later date, the court were to hold that the 2009 Act was invalid, there would be very considerable waste of expense and effort.

[7] I take account also of the fact that the pursuers are claiming damages for anxiety and not for a symptomatic or life-threatening medical condition. That is an important consideration. It is not clear from the pleadings in six of the seven cases when the pursuer in each case learned of the existence of the pleural plaques and thus for how long he has suffered anxiety. In one case, Yvonne Henderson v Henry Robb Ltd, in which the deceased's executrix dative is the pursuer, it is averred that the deceased, who died in December 2007 and whose death was not caused by industrial disease, suffered anxiety from November 2004. Otherwise I have no knowledge of the periods during which the pursuers have been worried by the existence of pleural plaques. Absent such information, I do not attach much weight to the effect of delay on the pursuers, who have raised the actions only in the course of this year.

[8] Mr O'Neill also argued that even if the 2009 Act were invalidated in a question with the petitioners in the judicial review, it would remain valid in relation to the defenders in this case and the other six cases as they are emanations of the State. I have not heard any detailed argument on this point which, it appears, turns on an interpretation of section 29 of the Scotland Act 1998, which provides:

"(1) An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.

(2) A provision is outside that competence so far as any of the following paragraphs apply -

...(d) it is incompatible with any of the Convention rights ..."

It is not necessary for me to determine whether the 2009 Act could be limping legislation, struck down as against some but valid against others; it is sufficient to state that I do not know what would be the response of the Scottish Parliament, were the courts to hold that the enactment was in breach of Convention rights.

[9] In any event, the petitioners in the judicial review application also advance a case against the 2009 Act at common law. The extent to which such a case is available and the degree of deference or margin of appreciation which the courts should give to a democratically elected legislature with devolved powers are matters of legal debate. The petitioners seek to challenge the view, which Lord Nimmo Smith expressed in Adams v Advocate General 2003 SC 171 at paragraphs [62]-[64], that the Scotland Act 1998 excludes the traditional common law grounds of judicial review of the Acts of the Scottish Parliament. While the pursuer's agents have provided me with the pleadings and notes of argument in the judicial review proceedings, the parties have, quite properly, not addressed me on these arguments. These issues will be determined in the judicial review proceedings.

[10] In all the circumstances, and for the reasons set out in paragraphs [6] to [9] above, I consider that it is expedient to grant the motion to sist this case. Should parties so wish, the court can reconsider the issue in the light of Lord Emslie's opinion on the judicial review challenge.

[11] My reasoning applies equally to the following cases: Mark Christison v Caledon Shipbuilding & Engineering Co Ltd (PD818/09), James Gall v Caledon Shipbuilding & Engineering Co Ltd (PD879/09), James Hamilton v Cartsburn Investments Ltd (PD881/09), Yvonne Henderson v Henry Robb Ltd (PD923/09), William Kelly v Lithgows Ltd (PD822/09), and Lindsay Tucker v Lithgows Ltd (PD882/09).