Elaine Crozier or Veale and Others v Scottish Power UK plc [2023] CSOH 50

Judicial interpretation of s5 of the Damages Act (Scotland) Act 2011: Discharge of liability to pay damages: exception for mesothelioma

Background

The late Robert Crozier settled his 2014 pleural plaques court action on a full and final basis. Following settlement, decree of absolvitor was pronounced. Mr Crozier subsequently developed mesothelioma and died in 2018. The pursuers (the family of the late Mr Crozier) raised an action seeking damages claiming that the cause of Mr Crozier’s death was mesothelioma caused by exposure to asbestos during his employment with the defender.

At the time of settlement of the deceased’s pleural plaques claim, he did not suffer from mesothelioma. 

The defender’s position was that as the previous claim settled on a full and final basis with the defender being awarded decree of absolvitor, the current action was incompetent.

The question for debate, quite simply, was whether the deceased required to be diagnosed with mesothelioma at the time of the discharge of his previous court action, to come within the exception to the normal rules in relation to family claims, under Section 5 of the Damages Act (Scotland) Act 2011; or, having had another asbestos related condition, is the fact of the deceased’s death enough to bring him within that exception.   

Section 5 states:- 

Discharge of liability to pay damages: exception for mesothelioma
(1) This section applies where–

(a) the liability to pay damages to A (or to A's executor) is discharged, whether by antecedent agreement or otherwise, by A before A's death,
(b) the personal injury in consequence of which A died is mesothelioma, and
(c) the discharge and the death each occurred on or after 20th December 2006.

(2) Liability arises under section 4(1) but is limited to the payment of such sum of damages as is mentioned in paragraph (b) of section 4(3).

With regard to the words “liability to pay damages” in section 5(1)(a), the defender’s interpretation was that ‘that liability must be for a personal injury existing at the time of the discharge of A’s right’. 

The pursuers’ interpretation was that this section refers to the discharge of any asbestos related claim, and not simply a mesothelioma claim, and that in light of the single actionability rule, there is effectively no basis to distinguish between asbestos related conditions.

Lord Stuart referred to Aitchison v Glasgow City Council [2010] SC 411 regarding the “single action rule” - 

‘An obligation to make reparation [for loss, injury and damage caused by an act, neglect or default] is a single and indivisible obligation, and one action only may be prosecuted for enforcing it.’

He also referred to Shell Tankers UK Ltd v Jeromson [2001] EWCA Civ 101 regarding reasonable foreseeability;

‘… liability only attaches to these defendants if the evidence demonstrated that they should reasonably have foreseen a risk of some pulmonary injury, not necessarily mesothelioma.’

Lord Stuart acknowledged that it would have been entirely straightforward for Parliament to include within section 5 the limitation argued for on behalf of the defenders. An example might be by including a further sub-section in section 5 to the effect “at the time the liability to pay damages to A was discharged by A, A was suffering from mesothelioma”.

Decision

The literal interpretation of the legislation was attractive to Lord Stuart and he did not accept that it is correct to define “liability” by reference to the personal injury and concluded that the pursuers met the conditions set out in section 5 of the 2011 Act and would, accordingly, be entitled to seek damages for the late Mr Crozier’s death as they do in the current action.  

Comment

Historically, section 1 of the Damages (Scotland) Act 1976 set out the rights of relatives to claim damages for loss sustained by them as a consequence of a person’s death from personal injuries. The general rule was that if, before their death, a person excluded or discharged a liability to pay damages, any relative’s right was also excluded or discharged. The Rights of Relatives to Damages (Mesothelioma) (Scotland) Act 2007 introduced an exception to that general rule through the amendment into the 1976 Act. The 2011 Act followed on an amendment to the 1976 Damages Act. The issue, prior to this 2007 amendment, was that advisers to mesothelioma sufferers were put in the invidious position of having to advise the mesothelioma victim that if he settled his claim in his lifetime, his family would lose their right to claim. 

However, the facts of the current case are that the late Mr Crozier had not developed mesothelioma at the time of his acceptance of a full and final settlement in his pleural plaques claim, with the defender being absolved. Had the late Mr Crozier wished to return to the court seeking further damages in the event he developed mesothelioma (and thus protect any future claims for his family) he ought to have settled his 2014 pleural plaques claim on a provisional basis.

We anticipate that the decision is likely to be appealed.

A link to the full decision can be found here.