 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Law Commission (Reports) |
||
|
You are here: BAILII >> Databases >> Scottish Law Commission >> Scottish Law Commission (Reports) >> Report on Damages for Personal Injury (Report No. 266) URL: http://www.bailii.org/scot/other/SLC/Report/2024/SLC266.image10.html |
||
[New search] [Help]
4.1 In this Chapter, we consider the law of provisional damages and in particular, how provisional damages operate in the context of asbestos-related disease. We consider the responses to the questions posed in Chapter 4 of the Discussion Paper and give thought to the unique legal position experienced by some of those suffering from an asbestos-related disease. We discuss the time-bar problem faced by some, and set out our policy-driven approach to tackling this issue.
4.2 Section 12 of the Administration of Justice Act 1982 (“the 1982 Act”) introduced the concept of provisional damages into Scots law. Before section 12 came into force in 1984, the courts applied the well-established rule that a pursuer must claim the entirety of their loss in one action. Increasing recognition that injured persons could, as a result, be overcompensated, or under-compensated (especially if the pursuer’s prognosis was uncertain) resulted in the enactment of section 12, permitting a pursuer in certain circumstances to seek provisional damages on the assumption that there would be no further development or deterioration in their condition, but reserving the right to the pursuer to return to the court for a further award of damages in the event of such further development or deterioration.
4.3 In our Discussion Paper, we asked consultees the following question:
“18. (a) Do you agree that, with the exception of asbestos-related disease, there
is no general need for reform of the law of provisional damages?
(b) If you disagree, can you describe what needs reformed and, if so, what reforms you would propose?”
4.4 Of the 25 consultees who responded to Question 18, a clear majority 1were of the view that there is no general need for reform of the law of provisional damages. We agree, with the exception of asbestos-related disease, to which we now turn.
Background
4.5 An injured person can choose whether to apply for provisional damages, or for full and final settlement of their claim. Prior to the 1982 Act, damages for personal injury had to be assessed “once and for all” at a court hearing or a settlement. Future developments in the injured person’s condition had to be assessed on the information then available. That proved unsatisfactory in certain cases, leading to the introduction of provisional damages in the 1982 Act.
4.6 Section 12 of the 1982 Act permits an injured person with a condition which may deteriorate in the future (such as noise-induced hearing loss, silicosis, or certain asbestos-related conditions) to make an application to the court for provisional damages calculated on the basis of their condition at the time of the action, reserving the right to return to the court for further damages should the condition deteriorate. To qualify for an award of provisional damages, the injured person must supply medical evidence to the court. If the court is satisfied that there is a risk that at some future time the injured person will, as a result of the defender’s act or omission, develop some serious disease or serious deterioration in their physical or mental condition, provisional damages may be awarded.
4.7 An exception arises in a case where a defender is not a public body or has no insurance. The option of provisional damages is not then available to an injured person, as section 12 of the 1982 Act is not satisfied. In such circumstances, the pursuer has no choice, and cannot opt for a litigation route involving provisional damages which would provide protection against the later emergence of a much more serious condition.
4.8 In general, our understanding is that the law governing provisional damages is working well. However, one area, concerning pleural plaques and some other asbestos-related diseases, for which provisional damages are often sought, requires attention. This is an important area as over 700 pleural plaques cases are identified each year.2 It is estimated that the number of such cases may not peak until around 2025.3
4.9 As explained on Asbestos.com:
“Pleural plaques are benign areas of thickened tissue that form in the pleura, or lung lining. They are indicative of asbestos exposure. Pleural plaques develop 10 to 30 years after initial asbestos exposure and usually do not require treatment. Most people with pleural plaques do not show obvious symptoms, although some describe pain or an uncomfortable sensation as they breathe.”4
4.10 A diagnosis of pleural plaques alerts someone to the fact that they have been exposed to asbestos and might later develop a serious and possibly life-threatening disease such as mesothelioma or another asbestos-induced cancer. Other asbestos-related diseases may include, but are not limited to, pleural thickening and asbestosis.
The current law
4.11 In 2007, the House of Lords decision in Rothwell v Chemical and Insulating Co. Ltd5 ruled that pleural plaques are a symptom-free condition and do not amount to an “actionable harm”. As a consequence, defenders ceased making damages payments to injured persons suffering from that condition. That decision was contrary to the Scottish Government’s policy on asbestos-related disease and ultimately the Scottish Parliament passed the Damages (Asbestos-related Conditions) (Scotland) Act 2009 (“the 2009 Act”).6 For present purposes the precise terms of the 2009 Act are important and are quoted in full below.
The Damages (Asbestos-related Conditions) (Scotland) Act 2009
4.12 The 2009 Act provides that pleural plaques, asymptomatic pleural thickening and asymptomatic asbestosis constitute actionable harms in Scotland, for which damages are recoverable, even though the conditions are symptom-free.
4.13 The Act provides:
“1 Pleural plaques
(1) Asbestos-related pleural plaques are a personal injury which is not negligible.
(2) Accordingly, they constitute actionable harm for the purposes of an action of damages for personal injuries.
(3) Any rule of law the effect of which is that asbestos-related pleural plaques do not constitute actionable harm ceases to apply to the extent it has that effect.
(4) But nothing in this section otherwise affects any enactment or rule of law which determines whether and in what circumstances a person may be liable in damages in respect of personal injuries.
2 Pleural thickening and asbestosis
(1) For the avoidance of doubt, a condition mentioned in subsection (2) which has not caused and is not causing impairment of a person’s physical condition is a personal injury which is not negligible.
(2) Those conditions are-
(a) asbestos-related pleural thickening; and
(b) asbestosis.
(3) Accordingly, such a condition constitutes actionable harm for the purposes of an action of damages for personal injuries.
(4) Any rule of law the effect of which is that such a condition does not constitute actionable harm ceases to apply to the extent it has that effect.
(5) But nothing in this section otherwise affects any enactment or rule of law which determines whether and in what circumstances a person may be liable in damages in respect of personal injuries.”
4.14 When the Scottish Parliament passed the 2009 Act, the courts had held, in Shuttleton v Duncan Stewart & Co Ltd,7 that pleural plaques, pleural thickening and asbestosis were “sufficiently distinct” to qualify as separate diseases and were therefore subject to different limitation periods.8 This meant that where an injured person had failed to bring an action for an asbestos-related condition within 3 years, they would not automatically be precluded from bringing a later action for a separate asbestos-related condition that they subsequently developed.9
4.15 The decision in Shuttleton was overruled by the Inner House in Aitchison v Glasgow City Council.10 The court held that separate conditions caused by the same injury did not give rise to separate limitation periods. Disapproving of Shuttleton, the Lord President (Hamilton) said that:
“There is, in my view, no warrant for identifying for limitation purposes ‘two separate diseases or impairments of physical condition’ or ‘consequentially separate time-bar periods’. These observations are not, in my view, well-founded in law.”11
4.16 Subject to certain exceptions, claims for damages become time-barred 3 years after the development of an asbestos-related disease caused by negligent exposure to asbestos.12 Unless an action is raised within that 3-year period, the claim cannot proceed. Following the decision in Aitchison, an injured person who fails to bring an action for an asbestos-related condition within 3 years will be time-barred from bringing a subsequent claim for any, including a more serious, asbestos-related condition. As outlined in our Discussion Paper on Damages for Personal Injury, 13a time-bar problem has emerged for some injured persons who have suffered negligent exposure to asbestos.
4.17 The time-bar problem which has arisen presents as follows: a diagnosis of asbestos-related pleural plaques, asymptomatic pleural thickening or asymptomatic asbestosis (the three conditions referred to in the 2009 Act) triggers the 3-year limitation period. The limitation period runs even if the plaques (or the other two conditions) are causing no impairment of the person’s physical condition. Years later, the development of a much graver condition such as mesothelioma or another asbestos-induced cancer may be time-barred because of the earlier pleural plaques (or other two conditions). 14While an earlier action including a claim for provisional damages would have protected the injured person from the time-bar of the later graver condition, many people with pleural plaques do not raise actions for various reasons. For example:
• The pleural plaques are causing no impairment to their physical condition.
• Their doctor may be unaware that compensation can be claimed for pleural plaques in Scotland, especially if they have been trained in England or Wales, where the law is different. The doctor may not mention the finding of asymptomatic pleural plaques to the patient.
• Pleural plaques, because they are symptomless, are often only discovered following an investigation into a separate medical condition (for example, a scan of the organs to look for signs of liver cancer may also show calcification on the lungs and lead to a diagnosis of pleural plaques alongside a diagnosis of liver cancer). In such circumstances, the individual’s attention is focused on the more serious diagnosis - a co-occurring diagnosis of benign pleural scarring may hardly register.
• As one practitioner advised us, UK-wide literature from professional bodies such as Asthma + Lung UK explains that readers should not be concerned about pleural plaques as they are asymptomatic.
4.18 Thus, in Scotland (but not in England or Wales) someone who develops a graver asbestos-related condition 15at a later stage may find their action for damages time-barred because of the earlier diagnosis of pleural plaques or asymptomatic pleural thickening or asymptomatic asbestosis.
4.19 This time-bar problem has arisen as a result of the unique legal position created by:
• the Prescription and Limitation (Scotland) Act 1973, which sets the 3-year time limit;
• the Administration of Justice Act 1982, which creates provisional damages;
• the Damages (Asbestos-related Conditions) (Scotland) Act 2009, which, contrary to the ruling in the House of Lords in 2007, 16deems asbestos-related pleural plaques, asymptomatic pleural thickening, and asymptomatic asbestosis,17 to be personal injuries which are “not negligible” but on the contrary are “actionable harm[s] for the purposes of an action of damages for personal injuries”; and
• the subsequent Court of Session decision, Aitchison v Glasgow City Council 2010 SC 411 (referred to in paragraph 4.15 above), which authoritatively confirms the “one wrong, one action” rule, i.e. in a negligent asbestos exposure context, all consequences of the negligent exposure (such as pleural plaques, pleural
significant claims for loss of support or loss of services may be time-barred. An illustration of the operation of the s 5 exception can be seen in Veale v Scottish Power UK plc [2024] CSIH 14, 2024 SLT 607.
thickening, asbestosis, asbestos-induced lung cancer, mesothelioma, and other conditions) are to be treated as one injury for the purposes of the 3-year time-limit.18
4.20 While section 19A of the Prescription and Limitation (Scotland) Act 1973 gives the court discretion to permit a time-barred action to proceed, two recent cases 19demonstrate that similar facts may result in very different outcomes, such that one claim proceeds, but not the other. Thus, unless an action claiming, amongst other things, provisional damages for the negligent exposure is raised within the standard 3-year period, a claim for a later much graver condition becomes time-barred.20
4.21 Concerns have been expressed about this situation, and about the law’s apparent unfairness, uncertainty, unpredictability, and inconsistency. One consultee with lived experience offered the following criticism:
“I find it utterly ridiculous that a law introduced for Pleural Plaques can then be used as a loophole by insurers/former employers to not be held accountable for their negligence when it leads to a terminal illness such as Mesothelioma. To make matters even more frustrating, if [the deceased had] lived in England or Wales, then there would be no issue.”21
4.22 Another consultee expressed a similar concern:
“Scotland allows for compensation claims to be made with the presence of pleural plaques alone, whereas in England and Wales, compensation claims for asbestos-related diseases can only be made for the more serious diseases such as lung cancer and mesothelioma. But in a sense, this has introduced problems for some Scottish people to make claims for a mesothelioma diagnosis who didn’t realise the need to act on their pleural plaques diagnosis in a timely manner (within 3 years of initial diagnosis).”22
Background
4.23 In our Discussion Paper, we asked consultees the following questions:
“19. Do you consider that there is a problem with the way provisional damages operate in cases involving asbestos-related disease claims?
20. If so, do you favour:
(a) providing that a diagnosis of pleural plaques would not, on the basis of time-bar, preclude further action at any future time;
(b) providing that a claim for asbestos-related pleural plaques (or pleural thickening or asbestosis) itself would become time-barred 3 years after diagnosis but that claims for any subsequent related disease such as mesothelioma would not be so time-barred;
(c) creating a provision parallel to the Limitation (Childhood Abuse) (Scotland) Act 2017; or
(d) another solution, and if so, what?
21. Please give reasons for your choice in Question 20.
22. Additionally, do you consider that the establishment of liability should be capable of being deferred, by agreement between the parties, to a later point should a subsequent more serious condition emerge?”
Responses to Discussion Paper
4.24 In response to Question 19, the majority of consultees agreed that there is a problem with the way provisional damages operate in cases involving asbestos-related disease claims, for the reasons outlined above.23 The law was variously described as uncertain, unpredictable, inconsistent, and unfair. Many consultees agreed that some sort of law reform is necessary. However, there was disagreement about the appropriate way forward.
4.25 Questions 20 and 21 ask, if there is a problem with the way provisional damages operate in cases involving asbestos-related disease claims, what solution should be adopted, and for what reasons. Ten consultees preferred not to comment.
4.26 Of those who answered Questions 20 and 21, some chose more than one option. The most popular option was option (b), followed by (a), then (d), and finally (c).
4.27 From these responses, five possible options for reform can be identified:
1. The Damages (Asbestos-related Conditions) (Scotland) Act 2009 should be repealed.24
2. A diagnosis of pleural plaques, asymptomatic pleural thickening, or asymptomatic asbestosis, should never preclude the raising of an action founded on negligent exposure to asbestos.25
3. A general reform of the law of limitation should be carried out (for example, amendment of section 17 and/or section 19A of the Prescription and Limitation (Scotland) Act 1973).26
4. The law governing provisional damages should be reformed, specifying the sort of diseases or type of deterioration contemplated, particularly in asbestos-related injury “in which future risk is readily and openly opined by expert medical evidence”.27
5. A policy-driven statutory provision, focusing solely on the 2009 Act conditions, namely asbestos-related pleural plaques, asymptomatic pleural thickening, and asymptomatic asbestosis, should be enacted to resolve the time-bar problem.28
Discussion
4.28 1. Repeal of the 2009 Act: We accept that repeal of the 2009 Act is a possible solution.
Such a repeal would bring Scots law into line with the law of England and Wales. Without the 2009 Act, should a relevant case be brought before the Court of Session, it is possible that the court may follow the decision in Rothwell v Chemical and Insulating Co Ltd.29 This would result in pleural plaques and other symptom-free asbestos-related conditions being deemed not to be an “actionable harm” for the purposes of an action of damages for personal injury, and not to entitle the pursuer to damages. Thus, a diagnosis of symptom-free asbestos-related conditions (in particular, those specified in the 2009 Act, namely pleural plaques, asymptomatic pleural thickening and asymptomatic asbestosis) would no longer trigger the 3-year limitation period.
4.29 However, we are reluctant to recommend repeal. We are mindful of the policy reasons behind the introduction of the 2009 Act and in our view, pleural plaques, asymptomatic pleural thickening and asymptomatic asbestosis are conditions which are indeed “not negligible” and are properly defined by the 2009 Act as “actionable harms”. These conditions are evidence of exposure to asbestos which may lead to extremely serious conditions such as mesothelioma or asbestos-induced lung cancer. A patient diagnosed with asymptomatic pleural plaques, asymptomatic pleural thickening, or asymptomatic asbestosis should, in our view (if negligence is established) be entitled to recover damages. For example, the patient may suffer anxiety, depression, and uncertainty about the possible later development of a grave and/or life-threatening condition. For some pursuers, the anxiety and unpredictability about their future is a heavy burden.
4.30 Thus, the 2009 Act should not in our view be repealed. We understand that damages for pleural plaques may currently amount to something in the range of £5,000 to £20,000. We consider that an employee who has suffered negligent exposure to asbestos resulting in pleural plaques, or asymptomatic pleural thickening and/or asymptomatic asbestosis, should be entitled to reparation for a harm which, albeit asymptomatic, is not negligible.
4.31 Accordingly, we do not recommend the repeal of the 2009 Act.
4.32 2. A diagnosis of pleural plaques, asymptomatic pleural thickening, and asymptomatic asbestosis should never preclude, on the basis of time-bar, the raising of an action founded on negligent exposure to asbestos: As noted above, seven consultees 30favoured a solution of this nature, in effect “ring-fencing” those conditions such that they never trigger the timebar. The solution is attractive to injured persons. However, there are obstacles to such an approach. The law of limitation seeks to strike a balance between the rights of the injured person and the rights of the responsible person. It encourages injured persons to bring claims timeously, which allows parties to provide the best evidence available. In the context of civil claims for personal injury, it is generally accepted that a responsible person should not have to face claims in perpetuity, without any time-limit. Yet that would be the result if pleural plaques and the other two conditions were wholly exempt from limitation law.31
4.33 We acknowledge that one exception to the law of limitation does exist in the form of the Limitation (Childhood Abuse) (Scotland) Act 2017, which exempted from limitation any action in respect of personal injuries arising from childhood abuse. However, this carve out from the law of limitation is due to the exceptional circumstances surrounding childhood abuse in Scotland and was a policy decision taken by the Scottish Ministers. It is not our intention to propose that a similar approach is taken for asbestos-related diseases. The issue with which we are concerned relates purely to the challenges faced by those suffering from an asbestos-related disease due to the precise terms of the 2009 Act. We are of the view that a more proportionate approach to address the issues created by the 2009 Act is to develop specific legislation focusing on the time-bar problem associated with the 2009 Act conditions. This is discussed below in paragraph 4.40 in more detail.
4.34 For these reasons, we do not recommend a total exemption from the law of limitation for the three conditions in the 2009 Act.
4.35 3. A general reform of the law of limitation: Some consultees suggested that section 19A of the Prescription and Limitation (Scotland) Act 197332 provides an adequate remedy for the pleural plaques time-bar problem. In practice, it does not, for several reasons:
• The exercise of judicial discretion can result in very different outcomes in the context of very similar facts.33 The law thus appears unpredictable and unfair.
• Litigation is an expensive and often protracted process. Few people would contemplate raising and conducting an action for damages at a time when they are suffering no symptoms. Similarly, few people would take the trouble to raise or conduct such an action with a claim for provisional damages simply to preserve their position in the event that a more serious asbestos-related condition might develop years later.
• From a social policy point of view, it would be unfortunate to encourage people to raise ‘safeguard’ actions, using up court time and resources.
• Section 19A was enacted to assist an excusably late claim in particular circumstances, but not to excuse a whole class of persons with a particular condition.
4.36 One consultee34 suggested a general reform of the law of limitation, while four consultees 35advocated the specific reform of section 19A of the Prescription and Limitation (Scotland) Act 1973. One of the four36 explained:
“We would prefer to amend s 19A [so as to provide] the court [with] the power to disregard a claim for pleural plaques and ... proceed as if no prior claim for pleural plaques had been made.”
4.37 There will be an opportunity to consider a general reform of the law of limitation during our Eleventh Programme,37 which runs from 2023 to 2027. However, the problem raised by pleural plaques, asymptomatic pleural thickening and asymptomatic asbestosis is in our view a special and urgent one, arising from the unique combination of the “warning flag” of pleural plaques (or asymptomatic pleural thickening or asymptomatic asbestosis) and the very lengthy period which often elapses between that warning flag and the development of an extremely serious condition such as mesothelioma or another asbestos-induced lung cancer.38 We have not identified any comparable personal injury which, despite being symptomless, constitutes an actionable harm in law and therefore triggers the limitation period, with the consequence of “catching out” a pursuer who fails to raise an action for damages within 3 years following diagnosis of the plaques (or asymptomatic pleural thickening or asymptomatic asbestosis). In our view, this effect of the 2009 Act should be addressed as soon as possible. The number of asbestos-related claims in Scotland is increasing, not decreasing. We consider that the unintended consequence of the combination of the Prescription and Limitation (Scotland) Act 1973, the Administration of Justice Act 1982, the Damages (Asbestos-related Conditions) (Scotland) Act 2009, and the court’s decision in Aitchison v Glasgow City Council39 requires immediate attention, rather than being allowed to remain pending a general and possibly protracted review of limitation law.
4.38 Accordingly, in the context of the three conditions defined in the 2009 Act, the option of awaiting the outcome of a general review of the law of limitation is not recommended.
4.39 4. Reform of provisional damages law: A general and far-reaching reform of the whole of provisional damages, as suggested by Zurich Insurance, would also take some time. In addition, the law governing provisional damages is in general working well and it is unclear to us how reforming provisional damages alone would solve the issues identified with the 2009 Act. Accordingly, we do not make such a recommendation.
4.40 5. Specific legislation focusing on the time-bar problem associated with the 2009 Act conditions: The majority of consultees who responded to Question 20 were in favour of legislation providing that a claim for asbestos-related pleural plaques (or asymptomatic pleural thickening or asymptomatic asbestosis) itself would become time-barred in the standard 3-year limitation period, but claims for any subsequent asbestos-related disease, such as mesothelioma, would not be so time-barred. It was agreed that this was an appropriate solution, which would avoid unfairness and bring Scotland into line with other jurisdictions. One consultee commented:
“This option would afford certainty for defenders with regard to claims for pleural plaques or mild/asymptomatic conditions, but not mesothelioma. It would allow a pursuer not to embark on litigation in that regard, but to take a different decision if and when a more serious condition developed.”40
Two other consultees observed:
“Individuals should not be disproportionately penalised for failure to raise court proceedings for a relatively minor injury when they later go on to develop a serious and potentially life-threatening illness as a result of the same negligent act.”41
4.41 We have ultimately concluded that this option presents the best solution to the timebar problem. Claims for asbestos-related pleural plaques, asymptomatic pleural thickening and asymptomatic asbestosis would remain time-barred after the expiry of the standard 3-year limitation period, but claims for later-developing symptomatic asbestos-related diseases would be unaffected by that expiry. Thus, we recommend a statutory provision which inserts new section 17ZA into the Prescription and Limitation (Scotland) Act 1973. The new section will only apply if the action consists solely of a claim for damages for an injury which is (i) wholly or partly attributable to exposure to asbestos and (ii) has caused or is now causing impairment of the injured person’s physical condition (i.e. a symptomatic asbestos-related condition).
4.42 New section 17ZA provides a bespoke exception to the standard 3-year limitation period contained in section 17 of the 1973 Act. The exception only applies in cases where a symptomatic asbestos-related condition is time-barred by one of the following (unlitigated) asbestos-related conditions, as defined in the 2009 Act42:
• pleural plaques
• pleural thickening
• asbestosis.
The reasons for providing the exception in these particular cases are set out in paragraphs 4.16 to 4.41 above.
4.43 The bespoke exception in section 17ZA is intended to have the following effect:
• Someone suffering from asymptomatic asbestos-related pleural plaques would not be time-barred when seeking to raise an action of damages for mesothelioma (or any symptomatic condition) which develops many years later. (The standard 3-year limitation period would nevertheless apply to the asymptomatic pleural plaques condition).
• Someone suffering from asbestos-related asymptomatic pleural thickening or asbestos-related asymptomatic asbestosis would not be time-barred when seeking to raise an action of damages years later when the condition becomes symptomatic. The 3-year limitation period for the symptomatic condition would only begin to run once a registered medical practitioner informs the person that the asbestos-related pleural thickening or asbestos-related asbestosis has become symptomatic and is causing (or has caused) impairment of their physical condition.43 (The standard 3-year limitation period would nevertheless apply to the asymptomatic pleural thickening or asbestosis).
4.44 Appendix D to the Report provides a list of worked examples illustrating the effect of sections 17ZA and 18ZZA in more detail.
4.45 In cases of developing pleural thickening or developing asbestosis, we consider that the time-bar should not be able to begin running until all relevant information has been provided to the injured person by a registered medical practitioner (see s17ZA(5)), because the symptoms and circumstances of someone who has suffered exposure to asbestos and who may have other conditions in addition to the developing asbestos-related condition can present an unclear and confusing picture, not easily understood by a lay person. Section 17ZA prevents the court from forming the opinion that it would have been reasonably practicable for the person to have been aware of the fact mentioned in section 17(2)(b)(i) at some time prior to the medical practitioner’s advice.
4.46 New section 17ZA is not intended to revive previously time-barred claims, such as those mentioned in brackets in the two bullet points in paragraph 4.43. The intention is to provide a solution for injured persons who have been “caught out” by being unaware of, or untroubled by, an asymptomatic asbestos-related condition defined in the 2009 Act, but years later go on to develop a symptomatic asbestos-related condition (often serious) only to find that their proposed action for damages has become time-barred.
4.47 A related bespoke exception is necessary for the linked claim by relatives. As a result of new section 18ZZA, an action of damages brought by the relatives of a now deceased asbestos-exposed person who would, if alive, have qualified in terms of section 17ZA would not be time-barred if damages are sought for the deceased’s death within the 3-year period from the death.
4.48 We consider that these focused statutory provisions would resolve the pleural plaques time-bar problem discussed above, and would result in “individuals [not being] disproportionately penalised for failure to raise court proceedings for relatively minor injury when they later go on to develop a serious and potentially life-threatening illness as a result of the same negligent act.”44 We are of the view that this policy-driven approach addresses the main issue we have identified as arising from the unique legal position referred to in paragraph 4.19.
4.49 We therefore recommend the enactment of a statutory provision which would have the effect that:
12. For the purposes of section 17 of the Prescription and Limitation (Scotland) Act 1973, asymptomatic asbestos-related conditions should be distinguished from symptomatic asbestos-related conditions, such that failure on the part of an injured person to raise an action within the limitation period for (i) asymptomatic asbestos-related pleural plaques, or (ii) asymptomatic asbestos-related pleural thickening or asymptomatic asbestosis, would not preclude that injured person from subsequently raising an action for a symptomatic asbestos-related condition, including asbestos-related pleural thickening or asbestosis which has become, but was not previously, symptomatic.
The 3-year time-bar for the symptomatic asbestos-related condition will begin no earlier than the date on which the injured person became aware of the fact mentioned in section 17(2)(b)(i) with respect to the symptomatic condition.
Where an asbestos-related disease which was recognised while asymptomatic becomes symptomatic, the 3-year time-bar will begin no earlier than the date on which the injured person is informed by a registered medical practitioner that the condition had caused, or had begun causing, impairment of that person’s physical condition.
In the event of that injured person’s death, the relatives’ claim would no longer be time-barred. For that purpose, section 18 of the 1973 Act would also be amended.
(Draft Bill, section 1)
4.50 As discussed in paragraph 1.12, commencement of the Bill provisions is a matter for the Scottish Government. However, due to the nature of the cases in question, the transitional arrangements for section 1 of the draft Bill are of particular importance. The date on which new section 17ZA comes into force will dictate which cases will, or will not, benefit from the new provision.
4.51 We explored a number of options for such transitional arrangements, most notably, excluding for the purposes of time-bar the period from the date of Aitchison (2010) to the date section 17ZA comes into force. Although we were attracted to this option, we encountered numerous difficulties in developing satisfactory retrospective arrangements.
4.52 Instead, we have concluded that the most pragmatic approach to transitional arrangements is that new section 17ZA should apply to all actions commenced on or after the date on which section 17ZA comes into force, or which are in court at that date (i.e. not finally disposed of). We recognise that no transitional arrangement in this context will produce a desirable result for all parties. However, in our view, this approach is the most practicable and workable.
4.53 As noted above, Question 22 in the Discussion Paper asked consultees:
“22. Additionally, do you consider that the establishment of liability should be capable of being deferred, by agreement between the parties, to a later point should a subsequent more serious condition emerge?”
4.54 This question was asked on the basis that a pursuer would raise an action within the 3-year period, but would be able to claim and receive provisional damages without establishing liability at that stage. In other words, the pursuer would not have to go to the trouble and expense of a protracted proof, in order to establish liability at that stage.
4.55 Of the 25 consultees who answered Question 22, fifteen 45were opposed to the suggestion that the establishment of liability should be capable of being deferred by agreement between the parties to a later date, should a more serious condition emerge. We agree. While an artificial deferment of the establishment of liability might enable an injured person to recover provisional damages at an early stage without having to embark on a full-blown proof about liability, there would be serious disadvantages, including loss of evidence through the passage of time before the establishment of liability was sought, and prejudice to defenders in having to face an unknown and unquantifiable burden of future litigation. We consider that the focused statutory provision outlined in paragraphs 4.40-4.49 above would be a preferable solution.
4.56 We therefore do not recommend that the establishment of liability should be capable of being deferred, by agreement between the parties, to a later point should a subsequent more serious condition emerge.
22 out of 25. Of the three consultees who disagreed, one observed that “problems arise because of the current law on limitation, not because of the law of provisional damages”; a second suggested that there should be clarification of the definitions “serious disease” and “serious deterioration”; a third consultee qualified their disagreement with an acknowledgement that “it is not obvious that a change in the law will alter the situation since whether or not there is a risk of serious deterioration or serious disease is very much a medical question”.
Information from practitioners in our Advisory Group.
Practitioners’ further information.
Sourced from Asbestos.com on 01 February 2024.
[2007] UKHL 39, 2008 1 AC 281: an English law decision.
The 2009 Act was a response to the English ruling, the Cabinet Secretary for Justice in Scotland having stated on 29 November 2007 that the Scottish Government would “overturn a House of Lords ruling preventing workers suing employers over an asbestos-related condition.”
e.g., a person who had previously been diagnosed with pleural plaques, but had never raised an action for damages, would still be able to raise a separate action for mesothelioma, should they go on to develop that condition.
Prescription and Limitation (Scotland) Act 1973, s 17.
No 174 published in February 2022, Chapter 4.
Prescription and Limitation (Scotland) Act 1973 s 17 and Aitchison v Glasgow City Council 2010 SC 411. The time-bar affects not only the injured person’s claim, but also surviving relatives’ claims for loss of society, loss of support, loss of services etc: see s 4(2) of the Damages (Scotland) Act 2011. While s 5 of the 2011 Act provides an exception in mesothelioma cases, that exception is limited to allowing claims for loss of society, so that
Such as mesothelioma or asbestos-related lung cancer.
Rothwell v Chemical and Insulating Co Ltd [2007] UKHL 39; [2008] 1 AC 281.
Unlike pleural plaques, pleural thickening and asbestosis usually cause symptoms.
One consultee, Midori Courtice, informed us that medical opinion differs from the legal approach. Doctors emphasise that a condition such as pleural plaques is quite distinct from a condition such as mesothelioma. In particular, the mesothelioma is not a development or deterioration of the pleural plaques: all that can be said is that the pleural plaques “flag up” the fact that the patient has been exposed to asbestos, and the asbestos exposure causes the mesothelioma.
Quinn v Wright’s Insulations Ltd [2020] CSOH 21, 2020 SCLR 731 and Kelman v Moray Council [2021] CSOH 131, 2022 Rep LR 64. Both were large claims: about £810,000 in Quinn (where liability was admitted), and £200,000 in Kelman. Kelman’s action was allowed to proceed, but not Quinn’s.
As indicated above, the time-bar affects not only the individual’s claim, but also surviving relatives’ claims for loss of society, loss of support, loss of services etc: see s 4(2) of the Damages (Scotland) Act 2011. While s 5 of the 2011 Act provides an exception in mesothelioma cases, that exception is limited to allowing claims for loss of society, so that significant claims for loss of support or loss of services may be time-barred.
Of the 32 consultees commenting on Question 19 of the Discussion Paper, 16 agreed that such a problem exists, while a further eight agreed that there is a problem but preferred to classify it as arising from the law of limitation, and particularly the case of Aitchison. Four consultees thought that there was no problem, and four further consultees made no comment.
Only one consultee, Clyde & Co LLP, under option (d), suggested repeal.
In effect option (a). Seven consultees favoured this option, namely the Senators of the College of Justice, Horwich Farrelly, Association of British Insurers, Law Society of Scotland, Society of Solicitor Advocates, Zurich Insurance, and Stuart McMillan MSP.
Aviva, Forum of Scottish Claim Managers, Stagecoach, and National Farmers Union suggested amendment of s 19A, while a wider reform of limitation law was suggested by Tom Marshall (all under option (d)).
Zurich Insurance (in addition to option (a)), when answering Question 19.
[2007] UKHL 39, 2008 1 AC 281.
Namely the Senators of the College of Justice, Horwich Farrelly, Association of British Insurers, Law Society of Scotland, Society of Solicitor Advocates, Zurich Insurance, and Stuart McMillan MSP.
The problem addressed in the Limitation (Childhood Abuse) (Scotland) Act 2017 was a very special one.
Which gives the court discretionary power to override time limits.
See Quinn v Wright’s Insulations Ltd [2020] CSOH 21, 2020 SCLR 731 and Kelman v Moray Council [2021] CSOH 131, 2022 Rep LR 64.
Aviva Insurance, Forum of Scottish Claims Managers, Stagecoach Group, and National Farmers Union.
See Scot Law Com No 264; 2023, paras 2.29-2.30.
“Unique” in that we have been unable to identify any other latent-type condition which has (i) a “warning flag” comprising a symptomless initial condition, followed by (ii) a period of many years during which no other condition develops, and finally (iii) in some cases, after many years, the development of an extremely serious and lifethreatening condition such as mesothelioma or asbestos-induced lung cancer.
Thompsons and Unite the Union.
The full terms of the Act are set out in para 4.13 above.
This ensures that the limitation period cannot start running any earlier than this point, but it could theoretically start later, where for example it was not clear whether the liability requirements in section 17(2)(b)(ii) and (iii) were satisfied.
Thompsons and Unite the Union.
Horwich Farrelly, Association of British Insurers, APIL, Clyde & Co, DAC Beachcroft, Digby Brown, Direct Line Group, Faculty of Advocates, Law Society of Scotland, Ronald Conway, Society of Solicitor Advocates, Thompsons, Unite the Union, Tom Marshall, Action on Asbestos.