12KBW Industrial Disease Blog

Author: John-Paul Swoboda KC, 12KBW

From time-to-time asbestos lawyers practising in England and Wales are instructed by clients who have been exposed to asbestos in Scotland and England. It is necessary for the lawyer to consider and advise the client (or their family in a deceased case), where the claim ought to be brought (normally England or Scotland) and whether English or Scots law (or double actionability) is likely to apply to the claim against each defendant. The advice to the client will now need to incorporate the Supreme Court’s judgment in Veale.

Veale, a Scots law fatal mesothelioma case concerned a question of statutory interpretation in respect of the Damages (Scotland) Act 2011. The issue of statutory interpretation appears very narrow from the judgment of the Supreme Court (e.g. the proper interpretation of s5(1)(a) of the Act). But behind the narrow question is a wider point: are relatives entitled to bring separate loss of society claims (e.g. section 4(3) claims), where the defendant discharged their liability to the deceased in the deceased’s lifetime in respect of a condition other than mesothelioma?

The Supreme Court decided unanimously (with Lord Reed PSC giving the sole judgment with whom the other Supreme Court justices agreed) that relatives are not disbarred from bringing their own loss of society claims where the deceased died from mesothelioma, even if the deceased resolved the case in their lifetime in respect of another asbestos condition (e.g. pleural plaques – which remain actionable under Scots law, diffuse pleural thickening, asbestosis, or asbestos related lung cancer etc.).

The Supreme Court reached their decision by:

1. a textual analysis of the relevant sections of the Act – the key phrase for interpretation was ‘liability to pay damages’ and it was decided that this must be given the same meaning in s5(1)(a) as in other sections of the Act
2. reference to the background materials – even though the background materials indicated that the dilemma which prompted the Scottish government to promulgate the relevant parts of Act was whether a mesothelioma sufferer should seek damages in life and thereby bar any loss of society claim by their relatives, the Court must, nevertheless, faithfully give effect to the meaning of the legislation as enacted, save where that would produce an absurd result. Lord Reed’s textual analysis showed that the Act did not bar the ability of relatives to bring loss of society claims even if the deceased resolved their case in their lifetime in respect of another (non-mesothelioma) asbestos condition.
3. deciding that the natural interpretation did not produce an absurd result – there was no absurdity, and if there were any anomaly in treating mesothelioma sufferers and their families differently from, say, lung cancer sufferers that was a deliberate choice made by the Scottish parliament.

Let us return to the hypothetical English/ Welsh lawyer advising a client, or their family, where there was exposure in England and Scotland. Post Veale such a lawyer is likely to be able to say with increased confidence that future potential loss of society claims for family members will not be stymied by a mesothelioma sufferer resolving their action in England (or Scotland). If the client suffers, not from mesothelioma but some other condition, post Veale, the hypothetical lawyer can probably say, with increased confidence, that if the sufferer goes on to develop mesothelioma other family members are likely to be able to bring loss of society claims even if the client resolves their non-mesothelioma claim on a full and final basis, in England or Scotland.

John-Paul Swoboda KC, 12KBW