AXA General Insurance Ltd and Others v Lord Advocate and Others: SCS 8 Jan 2010

The claimant sought to challenge the validity of the 2009 Act by judicial review. The Act would make their insured and themselves liable to very substantial unanticipated claims for damages for pleural plaques which would not previousl or otherwise have amounted to personal injury. Pleural plaques are physical changes in the pleura, detectable radiologically as areas of fibrous tissue by x-rays and CT scans. They are caused by occupational exposure to asbestos and, in common with other asbestos-related conditions, they tend to develop after a long latency period of 20 years or more. In most cases they have no discernible effect on an individual’s day to day physical health or well-being. They are asymptomatic, causing no pain or discomfort. They produce no disability or impairment of function, nor are they externally disfiguring. But it was common ground in Rothwell that they do indicate that the quantity of asbestos fibres in the lung is significant.
Held: The challenge to the law failed, and the 2009 Act, which was intended to reverse the effect of Rothwell in Scotland, was not set aside. However new laws in Scotland were reviewable at common law also, and not only under the 1998 Act. The court reviewed the law as it had developed. The 1998 Act had to be viewed on the basis that it was enacted against the existing background of common law, and not to stand in its stead, and the existence of challenges at common law for irrationality did not threaten it. Nevertheless any challenge to such primary legislation for irrationality must show an extreme of either bad faith absurdity or improper motive. Such had not been shown here.

Lord Emslie
2010 GWD 7-118, 2010 SLT 179, [2010] ScotCS CSOH – 02, Times 19-Jan-2010
SCS, Bailii
Scotland Act 1998, Damages (Asbestos-related Conditions) (Scotland) Act 2009
CitedLochgelly Iron and Coal Co v McMullan HL 10-Jul-1933
Lord Wright coined the term ‘statutory negligence’. He affirmed the need for ‘damage’ as an essential element of actionable negligence, saying: ‘In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission . .
CitedCrofter Hand Woven Harris Tweed Company Limited v Veitch HL 15-Dec-1941
The plaintiffs sought an interdict against the respondents, a dockers’ union, who sought to impose an embargo on their tweeds as they passed through the port of Stornoway.
Held: A trade embargo was not tortious because the predominant purpose . .
CitedCartledge v E Jopling and Sons Ltd HL 1963
The plaintiffs were steel dressers who, in the course of their employment, had inhaled quantities of noxious dust which had caused them to suffer from pneumoconiosis. They issued proceedings on 1 October 1956 but were unable to show any breach of . .
CitedJohnston v NEI International Combustion Ltd; Rothwell v Chemical and Insulating Co Ltd; similar HL 17-Oct-2007
The claimant sought damages for the development of neural plaques, having been exposed to asbestos while working for the defendant. The presence of such plaques were symptomless, and would not themselves cause other asbestos related disease, but . .
CitedBrown v North British Steel Foundry Ltd OHCS 1968
The 1954 Act passed on 4 June 1954 but was not to affect any action or proceeding if the cause of action arose before that date. The Lord Ordinary found that the pursuer who sought damages for pneumoconiosis did not begin to suffer from until 1955. . .
CitedNicol v Scottish Power plc 1998
. .
CitedLambie v Toffolo Jackson Limited (In Liq) and Another OHCS 11-Nov-2003
. .
CitedGibson v McAndrew Wormald and Co Ltd 1998
Pleural plaques constituted an identifiable injury for which damages were recoverable. . .
CitedSomerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
CitedStran Greek Refineries and Stratis Andreadis v Greece ECHR 9-Dec-1994
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion, estoppel); Violation of Art. 6-1; Violation of P1-1; Pecuniary damage – financial award; Costs and expenses partial . .
CitedBurden and Burden v The United Kingdom ECHR 29-Apr-2008
(Grand Chamber) The claimants were sisters who had lived together all their lives. They complained of discrimination in their treatment under the Inheritance Tax system as opposed to the treatment of a same sex couple living in a sexual . .
CitedSisojeva And Others v Latvia ECHR 16-Jun-2005
ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 8; No violation of Art. 34; Non-pecuniary damage – financial award; Costs and expenses – claim rejected. . .
CitedSwanson v Manson SCS 16-Jan-1907
Lord Ardwall said that: ‘No person is entitled to subject another to the trouble and expense of a litigation unless he has some real interest to enforce or protect.’ . .
CitedTrustees of the Harbour of Dundee v D and J Nicol HL 10-Dec-1914
The pursuers challenged an initiative by the defenders which allegedly harmed their local steamer excursion business. The House was asked whether steamers acquired by a statutory body of harbour trustees who maintained a service of steamers for . .
CitedWright v Stoddard International Plc and Another (No 2) SCS 23-Oct-2007
(Supplementary Opinion) Lord Uist applied the decision in Rothwell, although on the facts he would not have awarded damages anyway. . .
CitedVatan v Russia ECHR 7-Oct-2004
ECHR Judgment (Preliminary Objections) – Preliminary objection allowed (lack of victim status) – inadmissible.
‘The Court recalls that the term ‘victim’ used in Art. 34 denotes the person directly affected . .
CitedWilson v Independent Broadcasting Authority OHCS 1979
In the lead up to the Scottish referendum on Devolution, the Authority required the broadcasters to carry party political broadcasts for each of the four main parties. Three parties favoured voting yes in the referendum, and the authority was . .
CitedRegina v Inland Revenue Commissioners, ex parte the National Federation of Self-Employed and Small Businesses Ltd HL 9-Apr-1981
Limitations on HMRC discretion on investigation
The Commissioners had been concerned at tax evasion of up to 1 million pounds a year by casual workers employed in Fleet Street. They agreed with the employers and unions to collect tax in the future, but that they would not pursue those who had . .
CitedThe Christian Federation of Jehovah’s Witnesses of France v France ECHR 6-Nov-2001
(Non-admissibility Decision) It was affirmed: ‘that Article 34 of the Convention requires that an individual applicant should claim to have been actually affected by the violation he alleges. That Article does not institute for individuals a kind of . .
CitedThe National and Provincial Building Society, The Leeds Permanent Building Society And The Yorkshire Building Society v The United Kingdom ECHR 23-Oct-1997
There was no breach of human rights by the retrospective removal of a right to reclaim overpaid tax. Such a decision was within the general power of a government to impose and collect tax. Not every difference in treatment will amount to a violation . .
CitedWhaley v Lord Watson SCS 16-Feb-2000
The Scottish Parliament and its members have a limited statutory immunity from suit. No interdict or other order could be made against a member of the Parliament if the effect would be to grant an order against the Parliament not otherwise . .
CitedRape Crisis Centre v Secretary of State for the Home Department 2000
The petitioner sought judicial review of a decision to allow the boxer Mike Tyson to visit the UK.
Held: The Immigration Rules conferred no express or implied rights on third parties such as the petitioners. A review was refused.
Lord . .
CitedIn re Salmon: Priest v Uppleby 1889
A third party allegedly providing the defendant with an indemnity in respect of the plaintiff’s claim was only indirectly affected by the appeal of the plaintiff against the defendant. The third party would only be affected if the plaintiff . .
CitedIn re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
CitedRegina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
CitedMacCormick v Lord Advocate SCS 30-Jul-1953
LP Cooper reserved his opinion on the question whether the provisions in article XIX of the Treaty of Union which purport to preserve the Court of Session and the laws relating to private right which are administered in Scotland are fundamental law . .
CitedRegina v Liverpool City Council Ex Parte Muldoon; Regina v Same Ex Parte Kelly HL 11-Jul-1996
The claimant sought to challenge a refusal of the Housing Authority to pay housing benefit. The Secretary of State had made the relevant Regulations determining eligibility for benefits. If the challenge were successful, the Secretary of State would . .

Cited by:
At Outer HouseAXA General Insurance Ltd and Others v The Scottish Ministers and Others SCS 12-Apr-2011
(First Division) The insurance companies sought judicial review of the 2009 Act which lay them open, as employers liability insurers, to substantial historic claims for asymptotic neural plaque injuries.
Held: The companies’ appeal failed. The . .
At Outer HouseAXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .

Lists of cited by and citing cases may be incomplete.

Scotland, Constitutional, Human Rights, Personal Injury

Updated: 31 December 2021; Ref: scu.392553