Lord Pentland’s Opinion in the case of WW v The Advocate General for Scotland 2015 CSOH 111 was issued on 13 August.
Prior to this Opinion there was no previously reported Scottish case where provisional damages had been awarded for Pleural Plaques. There was a case in 1988 which had been a full and final damages award, not a provisional award. In England there had been provisional awards before Rothwell.
In Rothwell v Chemical and Insulating Co Ltd 2008 1AC 281 the House of Lords decided that as pleural plaques caused no symptoms and as the existence of pleural plaques did not increase the risk of developing any other asbestos related condition they were not an injury which gave rise to a claim in damages in Tort (Delict in Scotland). In addition, it was decided that neither the chance of developing a fatal asbestos related disease nor any anxiety from the risk of developing such a disease, was damage for the purposes of Tort (Delict).
As a result of the Rothwell decision, the Scottish Parliament passed the Damages (Asbestos-Related Conditions)(Scotland) Act 2009 which effectively reversed Rothwell and provided that asymptomatic pleural plaques could constitute actual harm and amounted to a personal injury.
As a result, this case of WW is the first one judicially determined in Scotland following the 2009 Act.
The decision was against a background where it was argued for WW that a provisional award should be one of £15,000 while those representing the Defender argued that £5,500 was appropriate.
As can be seen from the Opinion, Lord Pentland considered various English provisional awards made prior to Rothwell as well as two Decisions from Northern Ireland. Reaching a view that £8,500 was appropriate he said:
“That figure seems to me to be broadly in line with the level of awards made in England and Wales before the Rothwell Decision when uprated for inflation. My impression also is that such an award would not be regarded as inappropriate according to current Northern Irish practice.”
It is clear from the Opinion that this particular award may set a benchmark for others. The Pursuer did have significant anxiety as a result of having pleural plaques but it did not amount “to a serious psychiatric illness or psychological disability.” Presumably, in the event of either of these two conditions being present, those pursuing claims could seek/argue for a figure higher than £8,500.
At the time of the Proof the Pursuer was 69 years old. There is the possibility that awards might vary somewhat either side of £8,500 depending on age, for example, someone ten years younger than the Pursuer in WW might be able to justify a higher figure simply because he/she could have potentially more “anxious” years over which to worry about the condition.