As previously reported here, employers’ liability insurers have sought to challenge the legality of the Damages (Asbestos-related Conditions) (Scotland) Act 2009 (the Act) which permits those suffering with pleural plaques to claim compensation in Scotland.

In Axa General Insurance Limited & Others v The Lord Advocate & Others [2011] CSIH 31, the Inner House of the Court of Session found that the Act did amount to an interference with the insurers’ possessions as prohibited by ECHR Article1 Protocol 1 (which provides a protection of property). However, the Scottish court found that such an interference was justified as compensating people who develop pleural plaques was a legitimate aim. In addition, the court found that the Scottish Government was permitted to take into account the fact that employers’ liability insurers had paid such claims since 1984 on the basis that they were liable for such claims; and, as a result, the Act was justified even though it clearly envisaged insurers paying the claims in question. As a consequence, the Inner House of the Court of Session found that the Act was not an infringement of ECHR Article 1 Protocol 1.