LEGAL 29
vote-winning - issue in Scotland, given its maintenance work can be carried out - even if a involved a £1.4 million personal injury case.
heavy industry history. minority majority in a tenement property refuse The client was left with substantial physical
to co-operate or pay for their share of the problems and a degree of mental impairment.
It is understood there are over 1,000 pleural work. The new law will created a fairer system We work with the Nestor Partnership in all
plaques cases which had been in limbo and for repair work and will mean that neighbour our major injury cases. They provide advice
which, as a result of a the Scottish judgement disputes can be resolved more fairly. on managing the award through a private
Government’s legislation, will now be eligible investment programme to protect and grow
for compensation. Under the existing system, the conditions of that money.
management and maintenance of tenement
The Scottish Supreme Court Judge, Lord buildings are usually set out in the title deeds The case involved a woman in her late 20s
Emslie, said in his a judgement: “Diagnosis of of the property. who was hit by an HGV on her way to work.
pleural plaques confi rms signifi cant asbestos She suffered serious injuries and was in a
exposure, of which they may or may not have Where this is not the case, a default common coma for six weeks. Although she made a
been aware. It underlines the much higher law has been developed by the courts to reasonable recovery, she could no longer work
risk which they now face of lung cancer, fi ll the gap. In practice, this has meant that in the same capacity in her offi ce job. Her
mesothelioma and asbestosis.” unanimity is was required for any repair or concentration was affected and she found it
diffi cult to respond to emotions
While insurers in England have appropriately.
said that pleural plaques do not
cause symptoms, the view in
Scotland has been that there is
far heightened anxiety with this
condition. “
The judge took into account

The main dif_f erences
the fact that had the accident
not occurred, she would
between the legal
undoubtedly have progressed
at work and that future earnings
As a result, Lord Emslie were impacted. She also had
rejected the claim by insurance
systems in Scotland
diffi culty climbing stairs and
companies that the Scottish so it was in her best interests
Government has been irrational
in passing legislation that allows
and England are in
to move to an adapted
bungalow. She also needed
compensation to be paid for
pleural plaques.to have the cases
property, criminal, trusts,
ongoing physiotherapy and
psychological help.
passed by the Scottish Parliament
thrown out.
inheritance, evidence
Through our negotiations, we
were able to reach agreement
Questions remain, however,
will insurers be are required to and family law.
with the insurer relatively
compensate sufferers, will they
alone pay this or will there be
government help? And, will
”
quickly (within 20 months of the
accident) - and they responded
well to provide the claimant
with the support needed to
insurers choose to delay matters rebuild her life.
further by appealing the decision? maintenance work on shared parts of the
property, sometimes resulting in repair work The Nestor Partnership met the client in her
BM: What are the main differences in on the entire property being delayed or home and provided advice to her following a
Scotland when it comes to blocks of fl ats even blocked by a single resident. The main discussion with Gildeas regarding her needs.
insurance? purpose of the Bill was to modernise the They put a plan in place that allows the capital
common law rules and to clarify who owns sum to grow, allowing the growth to be paid
SH: The Tenements (Scotland) Bill Act 2004 which part of a tenement. to the client through periodical payments
granted new rights to some 1.4 million and also for her to reduce the capital so that
home-owners living in tenements and BM: How are settlements structured in the balance reduces over her lifetime, as is
buildings such as modern fl ats and high rise Scotland? intended.
blocks, ensuring a fairer deal when it comes to
the repair and maintenance of their homes. SH: Awards are made via a lump sum rather The intention being that the client is put back
than payments made over intervals. The aim in the position they would have been but for
This closed loopholes in existing laws, which is to ensure that the pursuer receives all of the accident. There is therefore no windfall for
can result in essential repair work on private their damages and allows the defender to the client, just the receipt of money they would
properties being postponed for years or in close their fi le when settlement is agreed or have received had they not been injured.
some cases, never being done at all because awarded. This means a clean break, but it also
owners could not agree on what needed to be means that the claimant may need expert
done and who would pay for it. advice as to how the lump sum is invested.
The aim was to ensure that basic repair and One recent case which Gildeas recently won
February 2010 Insurance Brokers’ Monthly
Legal 28-29.indd 2 1/2/10 14:00:30
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