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Cite as: [2007] ScotCS CSOH_71, [2007] CSOH 71

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OUTER HOUSE, COURT OF SESSION

[2007] CSOH 71

PD1666/06

OPINION OF LADY PATON

in the cause

THOMAS DOW

Pursuer;

against

(FIRST) WEST OF SCOTLAND SHIPBREAKING COMPANY LIMITED AND (SECOND) AILSA SHIPBUILDERS LIMITED

Defenders:

Pursuer: Maguire, Solicitor-Advocate; Thompsons

Defenders: McGregor, Advocate; Simpson & Marwick, Solicitors

5 April 2007

Rights of Relatives to Damages (Mesothelioma) (Scotland) Bill

[1] The Rights of Relatives to Damages (Mesothelioma) (Scotland) Bill seeks to resolve an invidious situation affecting those suffering from mesothelioma, and their families. That situation is having to choose whether the victim, while still surviving, should proceed to settle his or her claim for damages based on negligent exposure to asbestos, effectively preventing any further claims by relatives on the victim's death; or whether the victim should delay settling his or her claim, with the result that, on the victim's death, the relatives would be entitled to claim damages in terms of section 1(4) of the Damages (Scotland) Act 1976. It is widely acknowledged that having to face such a dilemma imposes an unacceptable and distressing burden on both the victim and the relatives.

[2] The Bill amends section 1 of the 1976 Act, and in effect permits the victim to accept damages in settlement prior to death, without jeopardising the relatives' potential claims on death in terms of section 1(4).

[3] The Bill is restricted to mesothelioma-sufferers because of the particular characteristics of that asbestos-related disease. As was explained by a representative of the Scottish Executive Justice Department to the Justice 1 Committee of the Scottish Parliament on 29 November 2006:

"Under current medical science, there is no treatment that will cure anyone with [mesothelioma]. The average life expectancy of someone who has the disease is 14 months.

For people diagnosed with mesothelioma, the issue of how to handle a compensation claim arises immediately. They know their likely life expectancy and that their disease was caused by exposure to asbestos, and - this is important - under the Fairchild exception they do not need to meet the normal test of causation in civil actions. The causal requirement is satisfied if an employer's wrongful conduct materially increased the risk of the person contracting mesothelioma.

The Executive believes that no other class of personal injury shares those characteristics and, typically, puts the sufferer in a dilemma in relation to relatives' compensation claims. Most mesothelioma-sufferers are not pursuing their own claims, in order not to disadvantage their relatives. No one involved in making personal injury claims has told us that any other groups of claimants face that dilemma and are forgoing their own claims in favour of their relatives' claims. We have introduced the bill to address that specific problem ...

... [The bill] is intended to remove a problem that the law causes for a particular group of people; it is not intended to encroach into the law itself any more than is necessary to address the identified problem. In other words, the purpose of the bill is not to right any perceived wrong in the long-held principle that relatives' rights are extinguished if the deceased settles [his] claim in full prior to death ...

... The Executive has introduced this short bill to address urgently and specifically a problem encountered by mesothelioma-sufferers who are choosing not to pursue their own claims so that their family can benefit from larger awards."

Amendment of the Damages (Scotland) Act 1976

[4] Section 1 of the Damages (Scotland) Act 1976 entitles the relatives of a person whose death was caused by the fault and negligence of another to claim damages in respect of that death. Heads of claim include distress, grief and loss of society; loss of support; loss of services; and funeral expenses.

[5] Section 1(2) provides:

"No liability shall arise under this section if the liability to the deceased or his executor in respect of the act or omission [giving rise to liability to pay damages] has been excluded or discharged (whether by antecedent agreement or otherwise) by the deceased before his death, or is excluded by virtue of any enactment."

Thus acceptance of damages by a mesothelioma-sufferer in settlement of his or her claim has the result that relatives cannot make claims on the death.

[6] The Rights of Relatives to Damages (Mesothelioma) (Scotland) Bill inserts, at the beginning of section 1(2) of the 1976 Act, the words "Except as set out in subsection (2A) below". The Bill further inserts two subsections after section 1(2), as follows:

"(2A) Where subsection (2B) below applies -

(a) liability arises under this section even though the liability to the deceased or the deceased's executor mentioned in subsection (2) above has been discharged as mentioned in that subsection; but

(b) that liability is limited to the payment of such sum of damages as is awarded under subsection (4) below [i.e. damages for distress, grief, and loss of society].

(2B) This subsection applies where -

(a) the personal injury in consequence of which the deceased died is mesothelioma; and

(b) the discharge of liability occurred on or after the date on which section 1 of the Rights of Relatives to Damages (Mesothelioma) (Scotland) Act 2007 (asp 00) came into force."

[7] Thus the Bill amends section 1 of the 1976 Act so that relatives may still claim damages on the death of the mesothelioma-sufferer despite prior settlement of the sufferer's personal claim for damages. In such circumstances the relatives' claims are limited to the deceased's immediate family, and to damages for distress, grief and loss of society.

[8] The new provisions are given retrospective effect, and are to apply to any case where the victim recovers damages or obtains a full settlement on or after 20 December 2006.

Thomas Dow

[9] One of the first mesothelioma-sufferers in Scotland to be affected by the Bill was Thomas Dow, born on 22 October 1937 (the pursuer). He was exposed to asbestos in the course of his employment with West of Scotland Shipbreaking Company Limited and Ailsa Shipbuilders Limited (the first and second defenders). Once his condition was diagnosed, he raised an action against the defenders in terms of Chapter 43 of the Rules of the Court of Session. He sought damages for solatium and loss of life expectancy, necessary services rendered and to be rendered by his family, the cost of an adjustable bed, and future patrimonial loss arising from his likely premature death.

[10] Shortly after 20 December 2006, the pursuer and the defenders reached an extra-judicial settlement. The pursuer's case was still governed by Chapter 43 of the Rules of the Court of Session, and in particular by the time-table issued in terms of Rule 43.6(1)(b). The case was accordingly put out By Order on Thursday 11 January 2007 as the pursuer had failed to lodge the minute of the pre-trial meeting by the due date. The pursuer's agents contacted the Court of Session and explained that settlement had been achieved in relation to the pursuer's claim. At their request, the case was put out By Order on Thursday 18 January 2007 to enable parties to address the court on the procedure to be followed in a case affected by the Bill.

[11] On Thursday 18 January 2007 I heard submissions from Mr. Maguire, Solicitor-Advocate on behalf of the pursuer, and Mr. McGregor, Advocate, on behalf of the defenders. Matters discussed included the terms of any Joint Minute recording the settlement; the progress of the Bill; and the procedure which might be followed in the Court of Session where a mesothelioma-sufferer raised an action seeking damages on his own behalf, settled his own claim and received damages in respect thereof, subsequently died, and (in the light of the new Bill) his relatives presented claims in respect of their distress, grief, and loss of society.

[12] Mr. Maguire stated that lawyers representing both pursuers and defenders agreed that it would be advantageous to all concerned if one court action could accommodate not only the pursuer's claim, but also the relatives' claims arising on the pursuer's ultimate death. An outline of a possible procedural approach was discussed, involving settling the pursuer's claim and thereafter sisting the action pending the death, whereupon the sist would be recalled, and relatives would be sisted as pursuers and the pleadings amended accordingly. There was also discussion concerning the appropriate form of any Joint Minute settling the pursuer's claim. In particular, if the action was to continue to be used as a vehicle for the relatives' subsequent claims, it was agreed that it would be inappropriate that the Joint Minute should invite the court to grant decree for damages or absolvitor, with the expenses of the action. The granting of such an interlocutor would bring the action to an end, leaving no proceedings in court to act as a vehicle for the relatives' claims.

[13] In the light of the discussion on 18 January 2007, parties sought further time to complete the settlement. A further By Order was arranged for 1 February 2007.

[14] On 1 February 2007, parties advised the court that the extra-judicial settlement was almost complete. They further explained that a motion relating to expenses to date, including certification of expert witnesses, might later be enrolled. Meantime the parties requested that the action be sisted, in effect to await the pursuer's inevitable death, and thereafter to sist his relatives to the action as pursuers as outlined above. I indicated that I would be prepared to sist the action "pending the death of the pursuer", taking the view that such a period of sist was, in a mesothelioma case, sufficiently specific in terms of Rule of Court 43.8(3): cf. the approach adopted by the Court of Session in pleural plaques claims, sisted "pending the outcome of the appeal to the House of Lords in Rothwell v Chemical & Insulating Co Ltd and others [2006] EWCA Civ 27". However counsel for the defenders indicated a preference for a sist for a fixed period of four months, to enable parties to monitor progress and to discuss further possible settlement. I accordingly sisted the case for a period of four months, and varied the timetable accordingly.

[15] Following the hearing on 1 February 2007, I received a copy Note dated 1 February 2007 prepared by Mr. Maguire in response to an inquiry from the Scottish Executive. That Note referred to paragraphs 88 and 89 of the Justice 1 Committee Report on the Bill, published on 12 January 2007. Those paragraphs provide:

"88. The Committee considers that there may be benefit in the initiation of only one court action. The Committee appreciates that the extent of the savings may be limited, but in order to provide a simplified process for all parties, the Committee considers that there may be merit in the initiation of a single action.

89. The Committee recommends that the Scottish Executive liaise with the Court of Session, insurance industry and solicitors in order to establish, firstly whether the raising of a single action in mesothelioma cases would be feasible, and secondly, whether it would indeed be beneficial to all parties."

The Note further referred to Rule 31.1 of the Rules of the Court of Session (a pursuer dying during his case, and the sisting of an executor in his place), and also to superseded Rules of Court 43.1 and 43.6 concerning the sisting of connected persons as additional pursuers (the current equivalent rules being Rules 43.6(10) and 43.14 et seq.)

[16] A further Note by Mr. Maguire dated 5 February 2007 was provided. It outlined inter alia circumstances in which the raising of a second action by the relatives of the deceased might be unavoidable.

[17] Some weeks later, I was advised that the pursuer had died on 20 February 2007.

[18] The third reading of the Bill took place on 21 March 2007. The Bill was passed. It is anticipated that the Royal Assent will be obtained in April or May 2007. The remainder of this Opinion is written on the assumption that the Bill does indeed become an Act.

Procedure in Chapter 43 mesothelioma cases

[19] In my view, it is appropriate in cases affected by the Rights of Relatives to Damages (Mesothelioma) (Scotland) Act 2007 that one court action should, wherever possible, act as the vehicle for not only the mesothelioma-sufferer's claim, but also for the relatives' subsequent claims for distress, grief, and loss of society.

[20] Current practice permits an executor to be sisted in place of a pursuer who dies in the course of an action. Thus for example Rule of Court 31.1 provides:

"(1) Where a party dies or comes under legal incapacity while a cause is in dependence, any person claiming to represent that party or his estate may apply to the court by minute to be sisted as a party to the cause.

(2) Intimation of such an application shall be made to each party."

[21] Further, as was pointed out by Mr. Maguire in his written submissions, the combined effect of several rules in Chapter 43 (currently Rules 43.6(10) and 43.14 to 43.19) can result in an action where the pursuers are ultimately (i) the executor in place of the deceased pursuer; and (ii) the relatives for their own rights, all encompassed in one court action.

[22] There are practical advantages arising from the use of one court action. For example, there are savings in administration and in costs. There is no need for a repetition of averments relating to the mesothelioma-sufferer's employment, the exposure to asbestos, the effect of the disease on the victim, and the various breaches of duty on the part of the defenders. There is no need for a duplication of the Specification of Documents attached to the Chapter 43 summons.

[23] The standard procedural stages which might take place in an action affected by the Rights of Relatives to Damages (Mesothelioma) (Scotland) Act 2007 could therefore be as follows:

A mesothelioma-sufferer raises an action under Chapter 43 of the Rules of the Court of Session to recover damages in respect of his or her own personal claim, with heads of damage such as solatium, loss of wages, services, expenses and any other losses suffered. The averments will include references to statute and alleged breaches of duty on the part of the defender.
A timetable is issued in terms of Rule of Court 43.6, and various procedural steps are completed.
In the course of the action, the parties reach a settlement of the pursuer's claim. At that stage, it is important for the continued existence of the court proceedings that any Joint Minute or motion before the court should not invite the court to grant decree for damages or absolvitor and the expenses of the action, as the granting of such a decree would bring the action to an end. The pursuer's agent could seek an award of expenses to date (as opposed to the expenses of the action). Otherwise the pursuer's agent should simply advise the court that settlement has been reached in relation to the mesothelioma-sufferer's claim, but that relatives' claims are expected. The agent should then enrol a motion (i) to have the action sisted for that reason (being "special cause" in terms of Rule of Court 43.8(2)(b)); (ii) for variation of the timetable in terms of Rule of Court 43.8; and (iii) for a discharge of any proof diet, if necessary. The period of sist could be a finite number of months (as in the present case); or "pending the death of the pursuer" or "until [X] months after the pursuer's death" (cf. the Rothwell sists, noted in paragraph [14] above). At the hearing of the motion, an undertaking should be given on behalf of those acting for the pursuer to give the court intimation of the pursuer's death as soon as it occurs. That undertaking should be noted in the Minute of Proceedings.
If the sist automatically expires before the pursuer's death, the case may be put out By Order, and no doubt a further sist would be sought, with or without a further variation of the timetable.
On the pursuer's death, the agent who immediately prior to that death had been instructed by the pursuer should notify the Court of Session of the death. Notification should take the form of a letter to the Deputy Principal Clerk accompanied by the relevant death certificate. Depending on the period of sist selected, the action may then remain sisted until the sist expires, thus giving the pursuer's agents some time to trace relatives and organise their claims.
At any time before the automatic expiry of the sist, relatives of the deceased could apply by motion for recall of the sist and for an order for further procedure. If no such motion is enrolled, the sist will automatically come to an end at (or some time after) the pursuer's death. Relatives of the deceased could at that stage enrol a motion for further procedure. Alternatively, the case may be put out By Order for further procedure.
At the hearing of any such motion or By Order, the court would hear parties and order such further procedure as seems appropriate. It is envisaged that the court would order (i) Minutes of Sist and Amendment, enabling relatives to be sisted as pursuers and to amend the pleadings to reflect their particular claims (relevant Rules of Court being 43.1(2), 43.6(10), and 43.18); (ii) Answers to the amendment by the defenders within a certain period; (iii) a period of adjustment of Minutes and Answers; and (iv) a By Order following the end of the period of adjustment, at which hearing the record could be amended and further procedure considered. In addition to any such interlocutor, it is likely that the court would request the Keeper to issue a new timetable (itself varied in advance in terms of Rules of Court 43.6 and 43.8). In a standard case, the new timetable as varied in advance might be restricted to dates for (i) the pursuers' statement of valuation of claim; (ii) the pursuers' lodging of a record; (iii) the defenders' statement of valuation of claim; (iv) the parties' lists of witnesses and productions; (v) the minute of the pre-trial meeting; and (vi) the diet of proof for the relatives' claims.

Circumstances in which a second action might be necessary

[24] In certain circumstances, it may prove impossible to use the pursuer's original action as a vehicle for the relatives' subsequent claims. For example:

1. If the pursuer's case did not settle, but proceeded to proof resulting in the court granting decree with expenses, the pursuer's action would be exhausted by that decree. It would be necessary for relatives to raise another action after the pursuer's death.

2. Similarly, the wording of a Joint Minute might bring the pursuer's action to an end. For example, the standard wording that "[counsel] stated to the court that this action has settled extra-judicially; they therefore craved and hereby crave the court to find the defenders liable to the pursuer in the expenses of the action; and quoad ultra to assoilzie the defenders from the conclusions of the summons" would result in decree being granted in those terms, and the pursuer's action coming to an end. It would be necessary for relatives to raise another action after the pursuer's death.

3. If a mesothelioma-sufferer's claim was settled, and the defenders wished to have a decree from the court (because, for example, they had to exercise rights of relief against another party: see, for example, section 3 of the Compensation Act 2006; or because they were obliged to comply with a requirement imposed by the Financial Services Compensation Authority) the inevitable procedural consequence would be a termination of the pursuer's action once the court has granted decree. It would be necessary for relatives to raise another action after the pursuer's death.

4. If the defenders lodged a tender in the pursuer's action, and if the pursuer formally accepted that tender and enrolled the usual motion for decree in terms of the tender and acceptance, the court would grant decree as requested, and the pursuer's action would come to an end. It would be necessary for relatives to raise another action after the pursuer's death. (In one recent mesothelioma case, a formal tender was lodged, but agents for the pursuer and defenders agreed to resolve matters by way of an appropriately-worded Joint Minute rather than by a formal acceptance of the tender, thus preserving the action as a vehicle for the relatives' subsequent claims.)

[25] There may be other circumstances, not outlined above, which would make it necessary for relatives to raise their own action after the pursuer's death.

Thomas Dow's relatives' claims

[26] In the present case, the action was sisted in terms of Rule of Court 43.8(3) for a period of four months commencing on 1 February 2007, and the timetable varied accordingly. The sist will therefore automatically expire on 1 June 2007, unless earlier recalled on a relative's motion. At the hearing on the motion or the By Order following expiry or recall of the sist, the court will hear parties and order such further procedure as is necessary.