Family of man who died from mesothelioma allowed to proceed with second claim against employer
A Lord Ordinary has ruled that the widow of a man who died from mesothelioma arising from asbestos exposure during his employment is entitled to seek damages despite an earlier action raised while the deceased was alive being settled.
Elaine Crozier and other members of her family argued that they had a relevant case against Scottish Power UK plc despite an earlier action based on the same asbestos exposure due to an exception contained in the Damages (Scotland) Act 2011. The deceased, Robert Crozier, had previously settled a claim against the defenders on a full and final basis in 2014, after which he developed mesothelioma.
The case was heard by Lord Stuart in the Outer House of the Court of Session. Milligan KC appeared for the pursuers and Mackenzie KC for the defender.
Exception to liability
Mr Crozier died on 15 October 2018, with the cause of death identified as mesothelioma. It was averred by the pursuers that the cause of the mesothelioma was negligent exposure to asbestos while he was employed by the defender. In 2014, Mr Crozier raised an action for damages against the defender in relation to the development of pleural plaques and asbestosis caused in the same manner. This action was settled on a full and final basis, with the defender granted decree of absolvitor.
It was averred by the defender that the settlement of the 2014 action rendered the pursuers’ present action incompetent due to the nature of the settlement. Mr Crozier could have preserved any rights he may have had should he subsequently develop mesothelioma by accepting provisional damages in the 2014 action, but he had elected not to do so. Subsequently, under section 4(2) of the Damages (Scotland) Act 2011, liability had been discharged by agreement prior to his death.
Counsel for the defender went on to submit that, although the 2011 Act created an exception for mesothelioma under section 5, the pursuers could not rely on that exception. This was because Mr Crozier did not suffer from mesothelioma at the time of the 2014 Action and the liability referred to in section 5(1)(a) required to be for a personal injury that existed at the time of the discharge of the deceased’s right.
On behalf of the pursuers, it was submitted that on a proper reading of section 5 of the 2011 Act there was no basis for the limitation argued for by the defender. That interpretation would require words to be read into the section for which there was no basis. On a plain, objective reading the words of the Act did not lead to a result which was manifestly absurd or unreasonable.
In his decision, Lord Stuart said of the 2011 Act: “With regard to the words ‘liability to pay damages’ in section 5(1)(a), Mr Mackenzie submitted that ‘that liability must be for a personal injury existing at the time of the discharge of A’s right’. I do not accept that submission. Having regard to the principles of statutory interpretation set out above, I do not accept that it is correct to define ‘liability’ by reference to the personal injury.”
He explained further: “What is discharged under section 5(1)(a) is the liability arising from the relevant act or omission and not, as Mr Mackenzie submitted on behalf of the defender, the liability for any, and only any, personal injury existing at the time of the discharge of A’s right.”
Addressing the effect of the 2014 settlement, Lord Stuart said: “It is clear that in settling the 2014 Action as he did, the late Mr Crozier discharged the defender from all liability arising from any negligent exposure to asbestos, including the reasonably foreseeable development, by the late Mr Crozier, of mesothelioma. It is also notable that in the case of Harris v The Advocate General for Scotland (2016) that in settling a case on a full and final basis where a pursuer has developed pleural plaques, there is included within the damages an element to reflect the reasonably foreseeable risk of the development of further asbestos related injury, including mesothelioma.”
He concluded: “None of the external materials relied upon by Mr Mackenzie displace the clear meaning conveyed by the words used in the relevant sections of the 2011 Act, which, after consideration of their context, are clear and unambiguous and do not produce absurdity. It would have been entirely straight forward for Parliament to include within section 5 the limitation argued for on behalf of the defenders.”
Accordingly, Lord Stuart found that the pursuers met the conditions set out in section 5 of the 2011 and remitted the case to proof.