The pursuers in this action were the family members of the late Mr Crozier and the defender was his former employer. The case called before Lord Stuart on the Procedure Roll on the defender's argument that, due to the mechanism of settlement of Mr Crozier's live claim in 2014, the pursuers did not have a right to found upon the section 5 exception, and therefore their claim was incompetent.
The Legislation
The defender's arguments were based on the interpretation of sections 4 and 5 of the Damages (Scotland) Act 2011. These sections deal with the right of family members to seek damages on behalf of a deceased, who had such a right at the time of their death.
Section 4(2) provides that, unless section 5 applies, where a right to damages has been excluded or discharged by a deceased prior to their death (e.g., through settlement), the right of any family member on behalf of the deceased is also extinguished. Section 5 applies where: i) the deceased has discharged his right to damages to personal injury prior to his death; ii) the personal injury from which the deceased dies is mesothelioma; and iii) the discharge and death each occur after 20 December 2006 (when the legislation that applied the exception came into force).
In effect, the exception allows pursuers to bring a separate action for damages following the death of a family member from mesothelioma caused by negligent asbestos exposure, where the deceased has already settled their own claim for loss arising from the defender's breach of duty, prior to their death.
The facts and circumstances: a nuanced exception?
The late Mr Crozier raised an action against the defender in 2014. He claimed that his diagnoses of pleural plaques and asbestosis were a direct result of asbestos exposure during the course of his employment with the defender.
The defender offered to settle the claim on a provisional or full-and-final basis. Provisional settlement tends to be for a lower sum based on current diagnosis only. However, it allows an opportunity to return to court at a later stage should further asbestos-related disease be diagnosed (such as pleural thickening or mesothelioma). Settlement on a full-and-final basis is usually for a higher sum to take into account the risk to the pursuer of contracting further asbestos-related disease, but prohibits returning to court for further damages should that risk materialise. In this case, Mr Crozier accepted full and final damages, and decree of absolvitor was granted in favour of the defender.
Defender's argument - the timing of the liability
The defender accepted that the pursuers in this action, on the face of it, met the criteria outlined in the section 5 exception. However, it was submitted that they were not entitled to rely on the exception to rule 4(2), as at the time of Mr Crozier's death, there was no "liability" on the part of the defender to Mr Crozier. For the section 5 exception to apply, there had to have been a diagnosis of mesothelioma for which a liability to pay damages arose. In the circumstances, at the time that Mr Crozier settled his action, he was not suffering from mesothelioma. The defender argued that for section 5 to apply there had to be a personal injury existing at the time of the discharge of the deceased's right, i.e., a diagnosis of mesothelioma. If the late Mr Crozier had wished such a liability to be available, he could have accepted damages on a provisional basis, but he chose not to.
In relying upon this argument, the defender referred to the explanatory note of the Rights of Relatives to Damages (Mesothelioma) (Scotland) Act 2007. As well as providing the rationale for the Act, the notes outline amongst other things that it was "restricted to mesothelioma sufferers because of the particular characteristic of that asbestos-related disease". The Defender's position was that the late Mr Crozier did not meet this restriction, as the liability that he had discharged did not at that time relate to mesothelioma; decree of absolvitor had been granted prior to this diagnosis, which was a fundamental point. Therefore, the exception under section 5 did not apply to the pursuers and their action should be found to be incompetent.
Pursuers' argument - A matter of interpretation
The pursuers submitted that there was no justification for the limitation to section 5 that was being argued by the defender. As had been highlighted, the pursuers met the criteria under the exception provided. The pursuers, with reference to case law, noted that it was the Court's duty, when interpreting legislation, to do so with reference to the "ordinary and natural meaning" of the words within. In particular, if the words used are "clear and unambiguous", the court were not to seek external sources in support of varying interpretation. The defender's interpretation of section 5 required words to be added into its reading, for which the pursuers could not see reasoning.
Court's decision
Lord Stuart agreed with the pursuers' submissions in relation to interpretation of legislation. He expanded on this with reference to the decision in Regina (O) v Secretary of State for the Home Department ([2022] UKSC 3) and noted that "external aids to interpretation must therefore play a secondary role".
Lord Stuart did not accept the defender's submission that the liability to pay damages that is referred to in section 5 must exist at the time of the discharge of the deceased's right. It was apparent that the "liability to pay damages" that has been discharged must be the same liability that is referred to in the preceding sections of the Act. What is discharged is the liability arising from the relevant act or omission, as opposed to the liability for any personal injury existing at the time of the discharge. He commented that Mr Crozier, in settling his 2014 action, discharged the defender from liability arising from negligent exposure to asbestos (the act or omission), which included development of mesothelioma by the late Mr Crozier (which was reasonably foreseeable). It was noted also that the case of Harris v The Advocate General for Scotland ([2016] SLT 572) indicates that full and final damages include an element of damages to compensate the risk of development of further asbestos-related disease, such as mesothelioma.
Lord Stuart agreed with the pursuers' submission that it would have been possible for Parliament to add the limitation to section 5 that the defender argued, but they had not done so. On this basis, on a plain reading of section 5, the pursuers' pleadings set out a relevant case and remitted the case to proof.
Analysis
This case provides useful insight into how the section 5 exception within the 2011 Act is applied; this decision highlights that the mechanism of how a pursuer chooses to settle any claim for asbestos-related disease that is not mesothelioma will not prohibit family members from making a claim under section 5 if the pursuer subsequently develops mesothelioma. It also confirms the approach that a Court will take when asked to address the interpretation of legislation; the "clear and unambiguous" road is the one that should be taken in the first instance.
The personal injury team at Morton Fraser advise clients in asbestos-related disease claims. We have the experience available to discuss the various types of awards and implications, both present and future, that employers may face in relation to these types of claims.
