The mesothelioma exemption
If an individual has a disease or injury, they may raise an action for damages while they are still alive. If that action is settled before they die their family is not entitled to make a claim in relation to their death. However, the Damages (Scotland) Act 2011 includes an exemption for the families of those who die of mesothelioma. They remain entitled to claim damages in relation to a death caused by mesothelioma even where the deceased settled a claim during their lifetime.
The Crozier case examined whether this exemption applies when the deceased settled a claim for other asbestos-related conditions (pleural plaques and asbestosis) then later developed mesothelioma and died of that illness. The court was required to consider a question of statutory interpretation: Was it essential that the deceased was already suffering from mesothelioma at the time the original claim was settled in order for the exemption in section 5 of the 2011 Act to apply?
The Supreme Court’s reasoning
The defenders argued that the term “liability to pay damages” in the legislation must refer specifically to liability to pay damages for mesothelioma not for any other disease. As Mr Crozier had not been suffering from mesothelioma when his claim was settled, they contended that liability for mesothelioma could not have existed and therefore could not have been discharged.
The Supreme Court rejected this argument for several reasons. Mr Crozier’s original claim had included the risk of developing mesothelioma in the future and that liability had therefore been discharged by settlement. The court also considered the use of the term “liability to pay damages” throughout the 2011 Act and concluded that it must have a wider meaning than being restricted to mesothelioma alone. Further if the phrase were interpreted in the narrow way suggested by the defenders the same restriction would have to apply everywhere it appears in the Act. This would undermine the exemption relied on by families which was not the intention of the legislation.
The Supreme Court also commented on the relevance of clause headings and the parliamentary materials available when the Act was enacted offering a helpful reminder of the principles of statutory interpretation.
What will be the impact of this decision?
We continue to see a high volume of asbestos disease cases before the Scottish courts. Claimants can settle claims for pleural plaques and asbestosis as Mr Crozier did in the knowledge that their family will still be entitled to claim in the future if they go on to develop mesothelioma a disease that is normally fatal. The clarity from the Supreme Court on these issues will provide reassurance and comfort to many claimants and their families and certainty for defenders in knowing when liability to pay damages does arise.
