Elaine Crozier and other family of the late Robert Crozier successfully obtained a remedy of damages, even though the deceased had previously settled an asbestos-related claim while he was alive, due to a statutory exception to the rule of seeking damages for the same wrong. The defenders claimed that the lord ordinary was wrong to conclude that the exception applied.

The appeal was heard by the Lord President, Lord Carloway, with Lord Boyd of Duncansby and Lady Wise. NR Mackenzie KC and E Campbell, advocate, appeared for the defenders and reclaimers and Milligan KC and Balfour, advocate, appeared for the pursuers and respondents.

Two actions for the same loss

The deceased had been employed by the defenders between 1969 and 1992 as a mechanical fitter. He settled a 2014 action against the defenders in which he sought damages for pleural plaques and asbestosis which resulted from his exposure to asbestos during his employment. At the time of settlement he did not have mesothelioma, of which he did in October 2018.

Following Mr Crozier’s death, the pursuers sought damages for his death, an action the defenders contended was incompetent because of the earlier settlement. However, the pursuers argued that section 5(1) of the Damages (Scotland) Act 2011 provided an exception to the general statutory rule of preclusion because the deceased had died from mesothelioma, and applied even when he was not suffering from it at the time of settlement.

The lord ordinary held that, while the earlier settlement discharged the defenders of all liability arising from their negligent exposure of the deceased to asbestos, the pursuers’ claims satisfied the conditions of section 5. The explanatory notes to the 2011 Act made it clear that no conditions applied to the section 5 exception.

It was submitted for the defenders that the lord ordinary erred in failing to accept that “liability” should be defined by reference to personal injury. He erred in his application of the single action rule. His 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.

Clear and unambiguous

Lord Carloway, delivering the opinion of the court, said of the construction of the Act: “It is the change brought about by the Rights of Relatives to Damages (Mesothelioma) (Scotland) Act 2007 which is most relevant for present purposes, given that its provisions are retained in the 2011 Act. The 2007 Act contains, in essence, only one operative clause. This is that the claims of relatives are not excluded where ‘the personal injury in consequence of which the deceased died is mesothelioma’.”

He continued: “The words under consideration are clear and unambiguous. The context, although expressed in terms of the resolution of a dilemma, is ensuring 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. The way in which the 2007 and 2011 Acts did this was simply to disapply the bar on damages claims which have been settled or otherwise disposed of.”

On whether it was necessary for the previous case by the deceased to have included mesothelioma, Lord Carloway said: “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.”

He concluded: “Even if it were necessary to take greater account of the Explanatory Notes or the Parliamentary statements, nothing in these materials detracts from interpreting the relevant provision in the manner indicated. None of the materials state that it is a condition of the exception to the bar on claiming damages that the deceased had to have developed, and be known to have developed, mesothelioma at the time of settlement. In order for that condition to apply, the court would have to read into section 5(1) words that are not there.”

The reclaiming motion was therefore refused.