The court confirmed that the relatives of the employee could claim for damages under the Damages (Scotland) Act 2011, despite a previous asbestos-related claim having been settled during the employee's lifetime. It was upheld that the exception within the 2011 Act, which arises when a person has died of mesothelioma, entitles that person's immediate family to maintain a claim for damages following the death, even where that person was not actually suffering from mesothelioma at the time of settlement.
The original case
The late Robert Crozier ("the deceased"), had been employed by Scottish Power, the defenders, as a mechanical fitter between 1969 and 1992. In 2014, he sued the defenders for damages, having developed pleural plaques and contracted asbestosis, as a result of exposure to asbestos during the course of his employment. The action settled in 2014 outside of court, on a full and final basis and the defenders were awarded a decree of absolvitor. In other words, a line was drawn under the claim, which usually marks its end and would extinguish any future claims from relatives that were associated with his illness. At the time of settlement, the deceased did not have mesothelioma.
Sadly, he later did develop mesothelioma, and died of that disease in 2018. Following his death, his immediate family members ("the pursuers") raised an action seeking damages for anxiety and distress, loss and grief, and the loss of the deceased’s society and guidance.
The defenders argued that this was an incompetent action, contending that the pursuers’ right to claim damages upon the deceased’s death was prohibited by the previous settlement and the decree of absolvitor granted in their favour.
In their submissions, the pursuers relied upon the exception to that rule, found in section 5(1) of the 2011 Act, arguing that this exception applied because the deceased had died from mesothelioma, even if he was not suffering from mesothelioma at the time of settlement.
The defenders interpreted the 2011 Act as meaning that the family could only recover damages on their relative's death if a mesothelioma diagnosis had existed at the time of settlement.
In contrast, the pursuers’ argued that it refers to the discharge of any asbestos related claim, and not simply a mesothelioma claim.
The court considered the following points: (i) whether the deceased was required to be diagnosed with mesothelioma at the time of the original case settlement to qualify for the exception under section 5; or (ii) having had another asbestos related condition at that time, whether the deceased’s mesothelioma-caused death, was enough to bring him within that exception.
Ultimately, the court found in favour of the pursuers' position. The Lord Ordinary supported the literal interpretation of the statute. The pursuers met the conditions set out in the legislation and were entitled to seek damages. The court went further by acknowledging that it would have been entirely straightforward for Parliament to include the limitation argued by the defenders, had the intention been to do so.
The appeal
As had been anticipated by many, the defenders appealed the first instance decision by way of reclaiming motion. The reclaiming motion was heard by the Lord President, Lord Carloway, along with Lord Boyd of Duncansby and Lady Wise.
The defenders maintained that the action was incompetent and that the pursuers' right to claim damages was precluded by the previous settlement and decree of absolvitor in their favour. They argued that the Lord Ordinary had erred in failing to accept that “liability” should be defined by reference to personal injury and in his finding that the only requirement for the exception to apply was that the injured person died from mesothelioma. They put forth that the exception could only be met if the deceased had raised proceedings whilst suffering from mesothelioma and had died from mesothelioma. They contended that the Lord Ordinary's decision resulted in absurdity and allowed two actions to proceed for the same loss caused by the same wrong, one for pleural plaques and one for mesothelioma.
The pursuers disputed this, arguing that the Lord Ordinary had correctly interpreted the wording of the 2011 Act and that the relevant conditions had been met to allow for the exception to apply and damages to be claimed.
The court upheld the Lord Ordinary's view, finding in favour of the pursuers. The reclaiming motion was therefore refused.
In delivering the opinion of the court, Lord Carloway stated that that there was no ambiguity in the wording of the provision within the 2011 Act and that it disapplied the block on damages claims which have been settled or otherwise disposed of, in cases where a person has died as a result of mesothelioma.
He confirmed that the "language should bear its ordinary meaning in the general context of the statute” and further stated that the words here are “clear and unambiguous”, and that the purpose of the exception 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...”
Discussion
This case is helpful clarification of the meaning of the 2011 Act. Many asbestos disease cases proceed through the Scottish courts. The 2011 Act is important to those suffering from mesothelioma. It changed the law to allow families of mesothelioma victims to recover in certain circumstances. Families have a right to claim damages following their death, even if a claim has previously been resolved during the deceased's lifetime. This case provides clarity for those involved in pursuing and defending these cases, setting out when damages can be recovered.
