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Leonard Allison v. Henry Robb Limited and Others [2009] CSOH 83


The pursuer formerly worked for the defenders during which period he was exposed to asbestos and developed bilateral pleural plaques. In this action the pursuer sought damages from the defenders for his anxiety about the diagnosis and about the possibility that he might develop serious asbestos-related diseases. At common law the pursuer did not have a relevant claim for damages following on from the decision of the House of Lords in Rothwell v Chemical & Insulating Co Ltd [2008] 1 A.C. 281 where it was held that a person who developed asymptomatic pleural plaques had not suffered loss and damage capable of giving rise to a cause of action in damages for negligence. However, the Scottish Parliament enacted the Damages (Asbestos-related Conditions) (Scotland) Act 2009, which was 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. Several insurance companies have jointly raised proceedings for judicial review of the 2009 Act in which they argue that the 2009 Act is outside the legislative competence of the Scottish Parliament. Here the defenders, moved the court for the action to be sisted and 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. The motion was opposed by the pursuers and submitted that the defenders in this case and in the six other cases referred to were not challenging the validity of the 2009 Act on human rights grounds or otherwise and that in each case the defenders were part of British Shipbuilders, a nationalised industry, and benefited from an indemnity from the Secretary of State. Further, it was submitted on behalf of the pursuers that if the court allowed the actions to be sisted, this would cause unnecessary delay and would prolong the uncertainty which the pursuers faced and, 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 could not be victims under the Convention. Here the court considered whether to sist the case.