Criteria for Mesothelioma Family Claims following Full and Final Settlement Confirmed by the Court of Session
The question before the Court of Session was whether claims brought by the family of a pursuer who had previously settled his case on a full and final basis and who subsequently passed away as a result of mesothelioma would be allowed.
Background
Mr Crozier, the deceased, settled his claim for pleural plaques and asbestosis in 2014 on a full and final basis, with a decree of absolvitor being granted. Mr Crozier was diagnosed with mesothelioma after he settled his original claim and passed away in 2018. Mr Crozier's family raised an action for damages under s.4(3) of the Damages (Scotland) Act 2011.
Sections 4 and 5 of the Damages (Scotland) Act 2011
The general position under s.4(2) of the 2011 Act provides an exclusion of liability for claims brought by the family of the deceased where the claim for the deceased's injury has already been settled by the deceased.
The exemption for mesothelioma claims is set out in s.4(3) and allows for claims to be brought where the criteria set down by s.5 is met. Furthermore, it provides that such further claims for damages can only be made in respect of a) loss of support, b) distress, anxiety, grief, sorrow, and loss of society.
Section 5 provides that where the liability to pay damages to the injured person (or their executor) is discharged and the injured person dies as a result of mesothelioma, and where the said death occurred after 20 December, 2006, damages remain liable to be paid to some of the deceased's relatives.
Decision of the Outer House of the Court of Session
The pursuers' position was that the deceased developed mesothelioma as a result of the negligence of the defender. As such, they argued that they were entitled to sue for certain heads of claim due to the exception provided by s.5 of the 2011 Act. They argued that this exception applied even if the deceased was not suffering from mesothelioma at the time of settlement.
The defender's position was that the action should be dismissed as incompetent on the grounds that the deceased's claim was settled on a full and final basis and that the defender was awarded a decree of absolvitor. The defender also argued that had the deceased intended for his family to have the right to return to court for a further claim, he should have settled the claim on a provisional damages basis.
The case was heard at the Outer House of the Court of Session. The central question was whether the deceased was required to have been diagnosed with mesothelioma at the time of settling his previous action in order s.5 to apply, or whether his death was sufficient for s.5 to become applicable. Lord Stuart favoured a literal interpretation of the 2011 Act and concluded that the pursuers satisfied the criteria for the exception in s.5 and were entitled to seek damages accordingly.
Decision of the Inner House of the Court of Session
Following the 2023 decision, the defenders lodged a reclaiming motion to appeal the decision. The case was heard at the Inner House of the Court of Session by the Lord President, Lord Boyd of Duncansby, and Lady Wise. At the hearing, the defenders again insisted that the pursuers' action was incompetent. They argued that the pursuers' right to return was removed by the existing decree of absolvitor in the defenders' favour. The defenders also argued that in order to qualify for the exception, the deceased was required to pass away from mesothelioma, and proceedings for damages for mesothelioma would have also required to be raised during the deceased's lifetime. Furthermore, the defenders claimed that, in any event, the deceased was not entitled to raise proceedings for mesothelioma after his death as he already settled his previous claim on a full and final basis, which included damages for future mesothelioma risk as well.
In response, the pursuers pled that they were eligible to bring their claim as a) the deceased's original claim was a result of the negligence of the defenders, b) the deceased died of mesothelioma, and c) the prior discharge of the defenders' liability to pay damages was a requirement for s.5 to apply. Therefore, as the deceased had also died of mesothelioma, their position was that Lord Stuart had correctly interpreted s.5 of the 2011 Act at the previous hearing.
The court refused the defender's reclaiming motion and confirmed that the decision reached by Lord Stuart in the Outer House of the Court of Session was correct. It was found that the words of s.5 were "clear and unambiguous" and that the purpose of the same was to allow family members in such cases to be compensated, albeit to a limited extent. It was also found that, as the original settled claim included damages for the risk of mesothelioma, it qualified for the exception.
Position
The decision of the Court of Session provides clarity for practitioners in the field going forward as it reinforces the practice as to how such cases require to be handled in this factual matrix.
