Mesothelioma, death and damages

Crozier (aka Veale) v Scottish Power UK Plc [2024] CSIH 14. On appeal it was held section 5(1) of the Damages (Scotland) Act 2011 entitles the deceased’s immediate family to maintain a claim for damages following the deceased’s death, even where he was not actually suffering from mesothelioma at the time he compromised his claim.

Background

The deceased had developed pleural plaques and contracted asbestosis. He pursued a claim against his employer alleging he had been exposed to asbestos whilst working as a mechanical fitter. It was admitted by the deceased that part of the damages claimed related to the risk of him developing mesothelioma. This action settled in 2014. At this time the deceased did not have mesothelioma. 

He died of mesothelioma in 2018. Following his death the pursuers (members of the deceased’s immediate family) sought damages for anxiety and distress, loss and grief, and the loss of the deceased’s society and guidance. 
This claim was denied by the defenders as incompetent. The defenders contended that pursuant to section 4(2) of the Damages (Scotland) Act 2011 (‘the Act’) the pursuers’ right to claim damages upon the deceased’s death was precluded by the previous settlement.

The pursuers relied upon section 5(1) of the Act, which provides an exception to that rule where the deceased has died of mesothelioma, and contended it applies even if he was not suffering from mesothelioma at the time of settlement.

The question for the court was: does that section entitle the relatives of a person to claim damages following his death from asbestos related mesothelioma, notwithstanding the settlement?

First instance decision

The Lord Ordinary considered the literal interpretation of the legislation. 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 Act. Therefore, they were entitled to seek damages for the deceased’s death. 

Appeal

The defenders maintained the pursuers’ action was incompetent. The right to claim damages for any negligent exposure of the deceased to asbestos by the defenders was removed by the decree of absolvitor in their favour. They argued that in order to meet the exception in section 5, the deceased would have had to have (i) raised proceedings whilst suffering from mesothelioma; and (ii) died from mesothelioma. He did not raise, and could not have raised, proceedings for his subsequent mesothelioma.

The defenders submitted that the Lord Ordinary had erred in holding that the only requirement for the section 5 exemption to apply was that the injured person had to have died from mesothelioma.

The pursuers’ case was that the conditions in section 5 were satisfied.

1. The deceased’s claim in relation to pleural plaques and asbestosis arose in relation to the same acts and omissions of the defenders. Their liability to pay damages the deceased was discharged by the settlement of his claim.
2. The deceased died from mesothelioma.
3. The discharge and death occurred in 2015 and 2018 respectively. The prior discharge of the defenders’ liability was a necessary condition for the application of section 5.

They argued the Lord Ordinary had interpreted section 5 correctly, which required only that the deceased had died of mesothelioma.

Outcome

The Lord President found that the “language should bear its ordinary meaning in the general context of the statute”. The words here are “clear and unambiguous”. The purpose is to ensure “that the relatives of persons who have died from mesothelioma are compensated, albeit to a limited extent, for the loss of the deceased even if he had earlier settled his own claim for solatium and loss of earnings.” There was no ambiguity – the Act disapplied the bar on damages claims which have been settled or otherwise disposed of, where “the personal injury in consequence of which the deceased died is mesothelioma”.

The Lord President further held that even if it was a requirement that the settled claim was a mesothelioma case, that was the case here; the deceased’s claim included damages for the risk of mesothelioma.

The reclaiming motion was therefore refused.

The full judgment can be found here.