27 June 2024

The Inner House has confirmed the position regarding the ability to claim for damages for loss of society following the death of a family member from mesothelioma where that person had also received in their lifetime a full and final settlement for pleural plaques.

Background

Relatives of the late Robert Crozier raised an action against his former employers following his death from mesothelioma. They claimed damages in respect of “loss of society” under section 4(3)(b) of the Damages (Scotland) Act 2011, notwithstanding the fact that he had already received damages following his claim for pleural plaques which had been settled with decree of absolvitor being granted in favour of the defenders. At that point, the deceased was not suffering from mesothelioma.

In the ordinary course of events, a full and final settlement with decree of absolvitor being granted would preclude a further action being raised. However, section 5(1) of the 2011 Act provides a specific exception where the deceased has died of mesothelioma, even if the deceased was not suffering from mesothelioma at the time of settlement of the earlier claim.

At first instance, the case called on the Procedure Roll on the defenders’ 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 accordingly their claim was incompetent. The Lord Ordinary agreed with the pursuers’ interpretation of section 5 of the Act and allowed them to proceed with the action for damages. The defenders appealed that decision to the Inner House.

Reclaiming motion

The defenders’ position was that the action raised by the family was incompetent, because, by reference to section 4(2) of the 2011 Act, their right to claim damages was precluded by the previous settlement. They argued that in order to meet the exception in section 5, Mr Crozier would have had to have: (i) raised proceedings whilst suffering from mesothelioma; and (ii) died from mesothelioma. His previous proceedings concerned the defenders’ liability to pay damages for pleural plaques. He discharged that liability. Mr Crozier did not raise, and could not have raised, proceedings for his subsequent mesothelioma. It was therefore argued that the Lord Ordinary 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’ position was that s5(1) had been interpreted correctly at first instance. Section 5 provided an exception to section 4(2) where a pursuer develops mesothelioma. They argued that all parts of section 5 had been met in that (a), Mr Crozier’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 to Mr Crozier was discharged by the settlement of his claim. Condition (b) was satisfied, as Mr Crozier died from mesothelioma. Condition (c) was satisfied, as 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.

Decision

The defender’s reclaiming motion was refused. In delivering the decision, the Lord President commented that the purpose of section 5 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. It was said that “there is no ambiguity. No absurdity is created by allowing immediate 14 relatives to claim some damages, by way of the expanded loss of society but no loss of support, for the loss of a relative who has previously claimed solatium and loss of earnings.”

Furthermore, in relation to the argument that the previously settled case was a mesothelioma case, he explained that that is what occurred here. The deceased’s claim included damages for the risk of mesothelioma. When a person settles a claim in relation to pleural plaques or asbestosis, having elected not to seek provisional damages, part of the solatium is almost bound to be attributable to the prospect of the development of mesothelioma in due course. 

Analysis

This decision is not at all surprising, although it is not one which will be welcomed by insurers and defenders. The interpretation of section 5 of the Act is clear. The decision provides certainty on the circumstances in which s5 will apply. The exception provided by section 5 of the Damages Scotland Act 2011 is a well-established principle that applies only to mesothelioma cases which are regarded as “highly exceptional” given the unfortunate nature and progression of the disease, where death inevitably follows shortly after diagnosis. The decision also serves as a useful reminder of the Court’s approach to statutory interpretation which is that language ought to bear its ordinary meaning in the general context of the statute.

If you require further advice on this topic, please contact one of our disease team experts.

Jennifer MacKenzie, Associate: jmk@bto.co.uk / 0141 221 8012