Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 135

 

PD1988/14

OPINION OF LORD DOHERTY

In the cause

ROBERT FRASER

Pursuer;

against

KITSONS INSULATION CONTRACTORS LIMITED

Defenders:

Pursuer:  Brodie QC;  Digby Brown LLP

Defenders:  Middleton;  Clyde & Co

20 October 2015

Introduction

[1]        This personal injury action was raised in the autumn of 2014.  On 16 October 2014 it was sisted in terms of paragraph 4 of Direction No. 2 of 2012 (Personal Injury Actions in respect of Pleural Plaques and the Damages (Asbestos-related Conditions) (Scotland) Act 2009).  It appears that the defenders did not elect to pursue settlement at that stage.  Accordingly, on the pursuer’s motion the sist was recalled on 16 December 2014.  Defences were lodged and on 12 March 2015 a proof was appointed to proceed on 22 September 2015 and the following three days.

[2]        The second conclusion of the summons is for payment of provisional damages.  The defenders admit that the pursuer was employed by them between approximately 1987 and 1997.  In Stat. 5 of his statement of claim the pursuer avers:

“As a result of his exposure to asbestos the pursuer has developed pleural plaques and small areas of pleural thickening…The pursuer is at an increased risk of developing a subsequent asbestos related condition. He has a 3% lifetime risk of developing mesothelioma and bronchial carcinoma. The pursuer is distressed and anxious as a result of his diagnosis of pleural plaques. He worries for his wife. The pursuer seeks provisional damages and reserves the right to apply to the court, whom failing his executor or executrix at any time within 3 years of his death, for a further award of damages in terms of section 12 of the Administration of Justice Act 1982 should he develop or is diagnosed with a subsequent asbestos related condition. The defenders are insured or otherwise indemnified in respect of this claim. Mesothelioma is a malignant disease. In the event that the pursuer develops said condition he would be likely to die within 12-18 months of the onset of symptoms…”

 

The defenders’ response to those averments was:

“Ans. 5   Admitted that the pursuer has developed pleural plaques…Quoad ultra denied…”

 

In response to a Notice to Admit (no. 15 of process) the defenders admitted (Notice no. 16 of process) that they were insured or otherwise indemnified in respect of the pursuer’s claim.

[3]        The pursuer lodged in process two medical reports (6/5 and 6/8 of process) prepared by Dr Robin Smith, Consultant Respiratory Physician.  Both are dated 5 February 2015, and their terms differ in certain respects, but it was not suggested that for present purposes the differences were material.  In 6/5 Dr Smith opined (p. 6 - 7):

“Mr Fraser has unequivocal evidence of multiple small pleural plaques which have the classical morphology of those associated with previous asbestos dust exposure…There is no evidence of any other asbestos related condition such as diffuse pleural thickening, asbestosis, mesothelioma or bronchial carcinoma…

Mr Fraser is at increased risk of developing mesothelioma over his remaining life span as a consequence of his previous occupational asbestos dust exposure. I estimate his life time risk from mesothelioma to be 3%.

Mr Fraser is also at increased risk of developing bronchial carcinoma as a consequence of his asbestos dust exposure coupled with a relatively light past history of smoking between the age of 16 and 26. I estimate the life time risk of bronchial carcinoma to be 3%...”

 

[4]        On 15 September 2015 the defenders lodged a minute of tender (no. 19 of process) which tendered to the pursuer:

“the sum of SEVEN THOUSAND POUNDS (£7,000) STERLING provisional damages free and net of any recoupment in terms of the Social Security (Recovery of Benefits) Act 1997 together with the expenses of process to date in full of the Second Conclusion of the Summons.”

 

By minute of acceptance of tender dated 22 September 2015 (no. 21 of process) the pursuer accepted that tender.

[5]        The pursuer enrolled a motion for decree in terms of the minute of tender and minute of acceptance.  The motion was marked opposed.  The Form 23.1D grounds of opposition which were stated by the defenders were:

“The order sought by the pursuer should make clear that he is only entitled to return for further damages in the event that he develops mesothelioma or asbestos related bronchial cancer, given that these are the only conditions which he risks developing in terms of his own expert evidence.”

 

[6]        The motion came before me on the motion roll.

 

Section 12
[7]        Section 12 of the Administration of Justice Act 1982 (“the 1982 Act”) provides:

“12.— Award of provisional damages for personal injuries: Scotland.

(1) This section applies to an action for damages for personal injuries in which—

(a) there is proved or admitted to be a risk that at some definite or indefinite time in the future the injured person will, as a result of the act or omission which gave rise to the cause of the action, develop some serious disease or suffer some serious deterioration in his physical or mental condition; and

(b) the responsible person was, at the time of the act or omission giving rise to the cause of the action,

(i) a public authority or public corporation; or

(ii) insured or otherwise indemnified in respect of the claim.

(2) In any case to which this section applies, the court may, on the application of the injured person, order—

(a) that the damages referred to in subsection (4)(a) below be awarded to the injured person; and

(b) that the injured person may apply for the further award of damages referred to in subsection (4)(b) below,

and the court may, if it considers it appropriate, order that an application under paragraph (b) above may be made only within a specified period.

(3) Where an injured person in respect of whom an award has been made under subsection (2)(a) above applies to the court for an award under subsection (2)(b) above, the court may award to the injured person the further damages referred to in subsection (4)(b) below.

(4) The damages referred to in subsections (2) and (3) above are—

(a) damages assessed on the assumption that the injured person will not develop the disease or suffer the deterioration in his condition; and

(b) further damages if he develops the disease or suffers the deterioration.

… “

 

 

Rules of the Court of Session
[8]        R.C.S. 43.2 provides:

“Form of summons

43.2.(1) The summons shall be in Form 43.2-A and there shall be annexed to it a brief statement containing-

(a) averments in numbered paragraphs relating only to those facts necessary to establish the claim;

…

(2) An application for an order under section 12(2)(a) of the Administration of Justice Act 1982 (provisional damages for personal injuries) shall be made by including in the summons a conclusion for provisional damages; and, where such an application is made, averments as to the matters referred to in paragraphs (a) and (b) of section 12(1) of that Act shall be included in the statement made under paragraph (1)(a).

(3) In paragraph (2) above “provisional damages” means the damages referred to in section 12(4)(a) of the Administration of Justice Act 1982.

…

Applications for further damages

43.13.-(1) An application for further damages by a pursuer in respect of whom an order under section 12(2)(b) of the Administration of Justice Act 1982 has been made shall be made by minute and shall include -

(a) a conclusion in Form 43.13-A; and

(b) averments in the statement of facts supporting that conclusion.

…”

 

[9]        The form of conclusion for provisional damages (as provided for by Form 43.2A and Form 43.12) is:

“For payment to the pursuer by the defender of the sum of (amount in words and figures) as provisional damages.”

 

The second conclusion of the summons complied in all material respects with the requirements of the rules.

 

Submissions for the pursuer
[10]      Mr Brodie moved for decree in terms of the minute of tender and the minute of acceptance.  He also moved the court to make an order in terms of s.12(2)(b) of the 1982 Act reserving to the pursuer the right to apply for a further award of damages in the event of him “developing an asbestos-related condition other than pleural plaques”.  When pressed to explain what that meant Mr Brodie stated that he understood it to refer to diffuse pleural thickening, asbestosis, mesothelioma, bronchial carcinoma caused by asbestos, and asbestos-related lung cancer.

[11]      Mr Brodie recognised that the increased risks which Dr Smith identified related to mesothelioma and bronchial carcinoma.  He submitted that that was nothing to the point.  The reports had not been agreed.  The pursuer’s averments had been framed with greater generality, and the tender and acceptance fell to be construed against that background.  At the time of settlement the pursuer’s agents had been in the process of obtaining a report from an engineer as to the concentrations of asbestos which the pursuer was likely to have been exposed to.  Had that report been obtained the agents would have reverted with it to Dr Smith to make specific inquiry as to the risk of other asbestos-related conditions.  If there were such further risks the pursuer’s pleadings would have been sufficiently broad to permit that evidence to have been led at proof.

[12]      The defenders accepted that an award of provisional damages was appropriate.  It was not now open to them to oppose the more extensive reservation which the pursuer sought.  The pursuer’s pleadings had made clear that there were risks of him developing a number of serious diseases.  While mesothelioma and bronchial carcinoma had been listed as examples, the listing had not been intended to be exhaustive.  The tender and acceptance had been in fairly standard terms.  Had the defenders wished to take issue with any of the risks which the pursuer averred, the tender ought to have made that clear: Talbot v Babcock International Ltd 2014 SLT 1077.  As the tender had not been qualified, the contract which was concluded ought to be construed as being an agreement for an award of provisional damages; and the tender and acceptance ought to be regarded as having been founded on the assumption that the pursuer would not suffer any of the serious diseases which the pursuer averred he was at risk of developing.

 

Submissions for the defenders
[13]      Mr Middleton did not oppose decree being pronounced in terms of the minute of tender and minute of acceptance.  That meant that the court should order that the pursuer be paid provisional damages of £7,000.  That was what the parties had agreed should happen.  The tender of provisional damages fell to be treated by the court as an admission by the defenders that the terms of s.12(1)(a) were satisfied.  What was admitted, however, was that there was a risk that in the future the pursuer might develop mesothelioma or bronchial carcinoma.  On a fair reading of the pursuer’s pleadings those were the only risks of serious disease which he averred existed in his case.  Mr Middleton made it clear that the defenders admitted at the bar that the pursuer had pleural plaques and that there was a risk of him developing mesothelioma or bronchial carcinoma.  He accepted that it was appropriate that the court order that the pursuer may apply for a further award of damages if he develops either of those serious diseases.  He submitted, however, that there was no proper basis for making the wider order which the pursuer proposed.  There was no admitted risk (or indeed any evidence of risk) of him developing any other serious disease or suffering some other serious deterioration in his physical or mental condition.  Reliance was placed in particular upon the observations of Lord Gill in Bonar v Trafalgar House Offshore Fabrication Ltd 1996 SLT 548 at page 550I - 551K.  Reference was also made to White v Inveresk Paper Co Ltd 1987 SC 143 and Robertson v British Bakeries Ltd 1992 SLT 434.  Mr Middleton drew attention to the fact that in England and Wales an order for an award of provisional damages required to specify the disease or type of deterioration in respect of which an application may be made at a future date (section 32A of the Supreme Court Act 1981 and the Civil Procedure Rules 1998 (as amended) (“C.P.R.”), Rule 41.2(2)(a)).  He maintained that the reasoning of the Lord Ordinary in Talbot was erroneous and that the court should not follow it.

 

Decision and reasons

[14]      The court’s power to make an award of provisional damages is conferred by statute - s.12 of the 1982 Act.  It may only make such an award if:

“there is proved or admitted to be a risk that at some definite or indefinite time in the future the injured person will, as a result of the act or omission which gave rise to the cause of the action, develop some serious disease or suffer some serious deterioration in his physical or mental condition” (s. 12(1)(a)).

 

 

Those damages are “assessed on the assumption that the injured person will not develop the disease or suffer the deterioration in his condition” (s.12(4)(a)).

[15]      I agree with counsel that the minute of tender and the minute of acceptance constitute a binding agreement between the parties.  However, such an agreement could never compel the court to award provisional damages.  The power to make an award lies not with the parties, but with the court.  Accordingly, on a proper construction the agreement is not that an award of provisional damages be made by the court.  Rather, it is that the parties concur that the court be asked to exercise its statutory power - and to exercise its discretion - to make an award of provisional damages.  The court requires to be satisfied on the basis of the material placed before it that it can properly exercise that power.  In particular, it has to be clear that the requirements of s.12(1)(a) are met.  That involves the court being shown that there is proved or admitted to be a risk that at some time in the future the pursuer will develop some serious disease or suffer some serious deterioration.  It is very hard to see how the court could possibly be satisfied of that unless it is clear what the relevant serious disease(s) or serious deterioration is/are.  Even where the material before the court demonstrates the relevant risk, the court has a discretion whether or not to make an award of provisional damages.  Even if, contrary to my view, it is possible for the court to be satisfied that the requirements of s.12(1)(a) are met in the absence of clarity as to the relevant serious disease(s) or serious deterioration, the court ought to be disinclined to exercise its discretion to make an award of provisional damages in such circumstances.  In my view the importance of clarity as to the relevant serious disease(s) or serious deterioration cannot be overstated.  Provisional damages are assessed on the assumption that the pursuer will not develop that disease or suffer that deterioration (s.12(4)(a)).  Significantly, the court is empowered to order that the injured person may apply for a further award of damages in the event of him developing the relevant disease or suffering the relevant deterioration (s.12(2)(b) and s.12(4)(b)).  It cannot give proper consideration to the making of such an order unless it is clear what the relevant disease(s) or deterioration is/are. 

[16]      Here, the pursuer did not aver that there was a risk of a serious deterioration in his physical or mental condition.  While he used the word “condition” rather than the word “disease” in Stat. 5, it is clear that the risk he was describing was a risk of developing a serious disease.  

[17]      What is/are the relevant risk(s) which enable an award of provisional damages to be made in the present case? Because the claim has been settled no evidence has been led, and there is no joint minute of admissions to assist the court.  In those circumstances how is the court to be satisfied that the statutory requirements for the making of an award are met?

[18]      If the parties had been at one on the matter, no difficulty would have arisen.  The court would have been entitled to proceed on the basis of their agreed approach to the risk or risks of serious disease; and it could have reserved a right to the pursuer to apply for a further award of damages in the event of him developing any of the relevant diseases.  Alternatively, if the parties had agreed that the court should approach matters on the basis of Dr Smith’s reports it could have had regard to that material in determining what the relevant risks were; whether an award of provisional damages could and should be made; and if so, whether it should order that the pursuer might apply for further damages in the event of a relevant disease developing.

[19]      As matters stand the only common ground between the parties is that there are risks that in the future the pursuer might develop mesothelioma or bronchial carcinoma as a result of the relevant exposure to asbestos.  There is no agreement that the pursuer is at risk of developing any other serious disease.

[20]      In such circumstances I do not consider that the court is entitled to proceed on the basis of averments of a pursuer which are denied, unless the only reasonable inference from the making of a tender is that a defender accepts the existence of the risk which the pursuer has averred.  Thus, for example, if a pursuer sought provisional damages on the basis that the only material risk was of development of one specified serious disease, a tender of provisional damages might readily be construed as having proceeded on the basis that the existence of that risk was accepted by the defender.  However, if a pursuer averred the existence of risks of developing several serious diseases but the defender admitted or otherwise accepted the existence of only one (or some but not all) of those risks, it is difficult to see why a tender and acceptance in standard terms should be construed as constituting an agreement by the parties, and an admission by the defender, of the existence of all of the risks which the pursuer has averred.

[21]      Even if, contrary to my view, the court is entitled to treat the tender and the acceptance in this case as being based on the premise that the pursuer is at risk of developing each of the serious diseases averred by the pursuer (and that the provisional damages offered and accepted were assessed on the basis that he would not do so), it would not lead to the result which Mr Brodie urges.  The only diseases which the pursuer has averred he has a risk of developing are mesothelioma and bronchial carcinoma.  The vague averment that he “is at increased risk of developing a subsequent asbestos condition”(sic) introduced the specification which followed it.  It is not an averment that there is a risk of the pursuer developing a serious disease other than mesothelioma or bronchial carcinoma.

[22]      In my opinion the appropriate course in the circumstances of the present case is for the court to proceed on the basis (i) that the pursuer has pleural plaques; (ii) that there are accepted risks that because of the relevant exposure to asbestos he may develop mesothelioma or bronchial carcinoma; and (iii) that the agreed sum of £7,000 of provisional damages has been duly arrived at on the assumption that he will not develop those diseases (s. 12 (4)(a)).  On those facts it appears to me to be wholly apposite that the court should order that the pursuer may apply for further damages if he develops either mesothelioma or bronchial carcinoma (s. 12 (2)(b) and s.12 (4)(b)).  Mr Middleton accepted that such an order is appropriate.  He took no issue with the pursuer’s suggestion that application might be made by the pursuer during his lifetime or by his executor up to three years after the pursuer’s death.

[23]      I recognise that the foregoing reasoning differs from that of the Lord Ordinary in Talbot.  In that case the pursuer averred that he had pleural plaques and asbestosis.  There were no averments that he had any risk of developing a serious disease or suffering a serious deterioration in his physical or mental condition as a result of his asbestos exposure.  Nonetheless, the summons included a conclusion for provisional damages.  The action was sisted in terms of paragraph 4 of Direction No. 2 of 2012.  Agreement was not reached to settle it under the framework of the Direction, but the defenders tendered £4,100 as provisional damages.  The tender was accepted.  No defences had been lodged.  The minute of tender and the minute of acceptance were in fairly standard terms.  The pursuer moved for decree in terms thereof.  He also sought an order in terms of s. 12(2)(b) that he might apply for further damages if he developed mesothelioma, asbestos-related lung cancer, asbestosis, or diffuse pleural thickening.  For the purposes of the motion the pursuer had lodged a medical report prepared by Dr Robin Smith, who opined that the pursuer had pleural plaques but that he did not suffer from asbestosis.  The defenders accepted those conclusions.  They also accepted that on the basis of the report the pursuer had risks of developing mesothelioma and asbestos-related lung cancer.  They did not oppose the court pronouncing an order in terms of s. 12(2)(b) allowing the pursuer to apply for further damages in the event of him developing those diseases.  Somewhat surprisingly the court refused to make any order that the pursuer might apply for further damages.  The Lord Ordinary opined:

“[11] … The acceptance of that tender created a contractually binding agreement between the parties resolving the issue to (sic) the litigation. In a practical sense it brought an end to the litigation. In those circumstances, I am of the view that for the purposes of this motion the only further consideration is what constitutes provisional damages. That is clearly stipulated in s.12 of the 1982 Act. The terms of s.12(1) give a pursuer a right to return to court if he develops some serious disease or some serious deterioration in his physical or mental condition which is a result of the act or omission which gave rise to the cause of action in the first place. In my view, the development or deterioration in a condition is an issue of fact. This was recognised by counsel for the defenders who accepted that an award of provisional damages could only be made if there was a proved or admitted risk of future problems. I observe that the two cases relied upon by the defenders (White (supra) and Robertson (supra)) were both decided after proof. The problem for the defenders is that in the present case there has been a contractually binding compromise of the litigation with an express concession for the appropriateness of an award of provisional damages. There is nothing in the terms of this contractual compromise to specify or limit the return conditions development of which would entitle the pursuer to return for a further award of damages. Moreover, I see no way in the terms of the statutory provision which would entitle the defenders to impose any restriction or limitation on the types of condition which would entitle the pursuer to return to the court, save of course that the conclusion (sic) was a result of the act or omission which gave rise to the cause of action in the present case. Quite simply it would be a matter for the pursuer at a subsequent date to establish that any deterioration in a condition from which he presently suffered on (sic) any condition he had developed was one which arose out of the injury giving rise to the original cause of action. My conclusion is that there is no statutory right of the pursuer to impose the conditions he seeks to by his opposition to this motion. Further I consider the terms of the contract constituted by the minute of tender and acceptance preclude the pursuer from having any ability at this stage in proceedings to seek to impose conditions of the sort he does.

[12] The anomaly arising from the foregoing analysis is that both the pursuer and the defenders seek to impose limitation on the conditions which will entitle the pursuer to return to court seeking a further award of damages. I consider that it follows from what I have said that it is open to neither party to impose conditions on the other after the conclusion of the contract constituted by the tender and acceptance…”

 

[24]      It appears that the Lord Ordinary  proceeded on the basis (i) that because of the tender and acceptance the court was obliged to make an award of provisional damages; (ii) that all the court needed to know was that the parties had agreed that an award of provisional damages should be made, and that it was unnecessary for it to be privy to the risk of development of a serious disease or to the risk of serious deterioration in the pursuer’s condition which underpinned the award of provisional damages; (iii) that the terms of the tender and acceptance precluded the court from making an order in terms of s.12(2)(b); (iv) that even though the court refused to make an order under s.12(2)(b) the pursuer would be able to make a claim for further damages if he developed some serious disease or suffered some serious deterioration in his condition because s.12 conferred that right upon an injured person who was awarded provisional damages; (v) that the pursuer would be entitled to do that whether or not the risk was one which had been admitted or proved at the time of the award; and (vi) that the development of a serious disease or the suffering of a serious deterioration would be a question of fact; provided the pursuer proved that it had developed or occurred since the award of provisional damages there would be a right to claim further damages.  I respectfully disagree with that analysis.

[25]      The tender and acceptance in Talbot constituted an agreement between the parties.  However, for the reasons already explained in para. 15 supra, its effect was that the parties concurred that the court be asked to exercise its statutory power to make an award of provisional damages for the agreed sum.  The court was not obliged by the tender and acceptance to award provisional damages.  The existence of the tender and acceptance did not enable the court to grant provisional damages unless the requirements of s. 12(1) were met.  It had to satisfy itself that they were.  In order to do that it needed to know the relevant risks which were proved or admitted to exist.  If the court was satisfied that an order for provisional damages could be made, the tender and acceptance did not preclude the making of an order in terms of s.12(2)(b).  Section 12(2) envisages the court making an order which awards provisional damages (s. 12(2)(a)) and which authorises the injured person to apply for an award of further damages if he develops the serious disease or suffers the serious deterioration the risk of which has been admitted or proved (s.12(1)(a), s.12(2)(b)).  The s.12(2)(b) authorisation is for an application to be made in the future (within a specified restricted period if the court considers that appropriate) in the event of the occurrence of the relevant contingency.  It is the proved or admitted risk which justifies the making of an award of provisional damages (s.12(1)(a)).  If the court is not in a position to satisfy itself of the existence of that risk it is not in a position to make an award of provisional damages or to order that the pursuer may apply for a further award if he develops the serious disease or suffers the serious deterioration to which the risk relates.

[26]      Provisional damages fall to be assessed on the assumption that the specific disease or deterioration will not come to pass (s.12(4)(a)); but the quid pro quo is that normally the injured person ought to be authorised to bring a claim for further damages in the future if it does (s.12(2)(b), s.12(4)(b)).  Authorisation under s.12(2)(b) is a prerequisite of a claim for further damages being brought.  In my opinion that is clear on an ordinary reading of s.12.  It is also apparent from the terms of R.C.S. 43.13(1).  If such authorisation has not been given the injured person will have no right to claim further damages on developing the relevant disease or suffering the relevant deterioration.  S.12 provides for an exception to the rule that all damages must be claimed in a single action.  In order for a pursuer to bring himself within the exception the requirements of the section have to be satisfied.  In order to be entitled to bring a claim for further damages a person awarded provisional damages must have obtained an order permitting him to apply for the further award of damages.  It is incorrect to suggest that even if no s.12(2)(b) order is made an injured person who has been awarded provisional damages may apply for further damages.  Such a person would not have a statutory right to make an application for a further award of damages - even if he were in a position to show as a matter of fact that he had developed a serious disease or suffered a serious deterioration in his condition since the award of provisional damages was made.

[27]      The application for a further award which the court may authorise would not provide an opportunity to claim for any and every serious disease or serious deterioration which may have come about since the provisional award was made.  Rather, it would enable a claim to be made for a further award in the event that the injured person develops the serious disease or suffers the serious deterioration the risk(s) of which was (were) proved or admitted to exist at the time the award of provisional damages was made (s.12(1)(a), s. 12(2)(b), s. 12(4)).

[28]      For all these reasons I do not find the reasoning in Talbot to be persuasive.

[29]      It is regrettable that there was disagreement between the parties in the present case as to the basis upon which provisional damages ought to be awarded.  It is highly desirable that parties resolving a litigation strive to avoid future potential disputes as to the terms of settlement.  Where a provisional damages case is settled and a joint minute is prepared it should specify each of the serious diseases or the serious deterioration in respect of which parties agree there is a relevant risk.  Similarly, where a defender tenders a sum in satisfaction of a provisional damages claim I see no good reason why he may not specify in the tender the serious disease(s) or the serious deterioration which he accepts the pursuer is at risk of developing or suffering.  In my opinion that would not be a qualification of the tender which would prevent it from being a valid and effective tender.  It would not detract from the tender.  On the contrary, specification of those matters would serve to clarify the basis upon which the offer was being made.  Such a tender could be a clear, unambiguous and explicit offer to make immediate payment of a sum to settle the provisional damages claim.  It would be capable of immediate acceptance by the pursuer.  In my opinion it would be very different from the tenders which the court considered in Bissett v Anderson (1847) 10 D 233 and Gunn v Marquis of Breadalbane (1849) 11D 1046.  In Bissett the vice was that the tender was not an offer to pay an immediate sum to the pursuer but an offer to go into a general accounting with him.  In Gunn the tender incorporated a condition that the pursuer should undertake an obligation of relief.  I respectfully agree with Lord McCluskey’s observations on those cases in Ferguson v Maclennan Salmon Fishing Co. Ltd.1990 S.C. 45, at pp. 49-50.  In my opinion his consideration (at p. 51) of the underlying principle governing tenders is also instructive:

“If there is a principle underlying the correct attitude of the court in these matters, it is, in my opinion, not the superficial and ill-developed one that all tenders must be unqualified, but the wider principle, based, as always in matters of expenses, upon equitable considerations. The principle must be that if one party makes a judicial offer in clear and unambiguous terms which it is open to the other party to accept, thereby ending the litigation (in whole or in part), and the other party does not accept it, then if, after further litigation, the court makes an award which benefits the non-accepting party to no greater extent that he would have been benefited by accepting the offer, then, in the absence of other decisive considerations, it is he, not the offerer, who should pay for the unnecessary litigation subsequent to its date.”

 

 

[30]      Finally, it comes as no surprise that in England and Wales the procedural rules governing offers of settlement and awards of provisional damages ensure that there is clarity as to the relevant disease or deterioration.  A Part 36 offer to agree to the making of an award of provisional damages must state that the sum offered is in satisfaction of the claim for damages on the assumption that the injured person will not develop the disease or suffer the type of deterioration specified in the offer (C.P.R., Rule 36.19(3)).  The court’s power to make an award of provisional damages is conferred by the Supreme Court Act 1981, s. 32A (which is in similar terms to the s.12 of the 1982 Act).  If the court exercises its discretion to make an award of provisional damages the order must specify the disease or type of deterioration in respect of which an application may be made at a future date (C.P.R., Rule 41.2(2)(a)).

 

Disposal
[31]      I shall pronounce decree in terms of the minute of tender and minute of acceptance.  I shall also order that the pursuer during his lifetime, failing which his executor within three years of the pursuer’s death, may apply for further damages if the pursuer develops mesothelioma or bronchial carcinoma.  I shall certify Dr Robin Smith and Karen McNeill as skilled persons who prepared reports.  I shall reserve meantime all questions as to the expenses of the motion.