Claims trends

We are coming through the claims period most obviously affected by COVID-19. With non-essential treatments having been delayed, and therefore the opportunity to diagnose asbestos related disease often having been missed, claims numbers have been down in recent years, with it being difficult to determine whether this is the downward curve of the peak in claims, or was an artificial position. Our own experience, and the general consensus of others we have spoken to, is that claims numbers may have increased compared to the last 3-4 years, but remain lower than pre-COVID. This is consistent with the HSE’s recently published statistics which record a decline in mesothelioma deaths, for example. 

An uptick in damages

In general terms, the cost of asbestos liabilities has increased by the inflationary rises affecting all injury claims. The figures in the JC Guidelines have increased by around 20%. Claimants regularly seek damages in reference to RPI tables. For example, applying the RPI them to the pleural plaques provisional damages range (£5,500 to £9,000) determined in the case of William Wales and endorsed in Roger Harris now equates to up to £12,960 in today’s money. The mesothelioma case of George Manson awarded the deceased’s widow and sons a total of £135,000 for their loss of society claims in 2017 which would now total £192,200.  Reserves have been reviewed accordingly.

The change in the discount rate in Scotland mitigates the RPI linking of damages for only higher value claims where there are future losses.    

Is “full and final” really “full and final?”

It is a claimant’s prerogative whether to take provisional or full and final damages in settling a claim for an industrial disease which includes the future risk of a new disease or a material deterioration of an existing disease. In Scotland, that is typically pleural plaques. By taking a full and final settlement, the claimant is compensated for the risk of him developing a more serious asbestos related condition by accepting an uplift in his settlement. If they accepted the lower amount in provisional damages, they (or their family if the condition was fatal) could return to the court for further damages in the event of that new disease developing. This is essentially an educated gamble for the claimant. 

The introduction of the Damages (Scotland) Act 2011 created scope for a different regime. One reading of section 5 is that if a claimant settles any asbestos related claim on a full and final basis and the claimant later dies of mesothelioma, the claimant’s family can still claim damages for loss of society. This award often reaches many hundreds of thousands of pounds, depending on the size of the family.

In the case of Robert Crozier the court at first instance and then the Inner House of the Court of Session, on appeal, were asked to interpret section 5. Mr Crozier had settled his pleural plaques claim on a full and final basis and then was diagnosed with, and sadly died from, mesothelioma several years later. The defendant contended that the family of the deceased should not be allowed to claim damages for loss of society because the deceased settled his claim on a full and final basis during his lifetime. Its position was that the claimant could only benefit from section 5 if the deceased had raised court proceedings when suffering from mesothelioma and had then died from mesothelioma.

The Inner House disagreed and noted that the purpose of section 5 was to ensure “that the relatives of persons who have died from mesothelioma are compensated, albeit to a limited extent, for the loss of the deceased even if he had earlier settled his own claim...”  In our view, this was not the purpose of section 5, but perhaps an unintended consequence of the statutory drafting. 

Permission has been granted to apply to the Supreme Court for a final right of appeal. Watch this space. 

A successful defence at trial in a low-exposure mesothelioma case

The Scottish courts do not hear many liability trials in asbestos litigation and Kerr v Midlothian Council and another was noteworthy not only for that reason, but because of its analysis of the “Fairchild exception”.

Mrs Kerr sadly died of epithelioid malignant peritoneal (abdominal) mesothelioma. In her role as a science teacher at different Scottish schools in the 1980s she handled asbestos Bunsen mats which may have exposed her to low levels of chrysotile (which is less hazardous than other forms of asbestos).

Where someone is exposed to asbestos dust across multiple employments, it is not scientifically possible to determine which exposure actually resulted in the mesothelioma. The case of Fairchild established a more relaxed regime for establishing causation in mesothelioma claims where there was exposure to asbestos in multiple employments and any other cause of the mesothelioma can be discounted.  

In the case of Kerr, the claimants had contended that the Fairchild exception should be applied. However, there were multiple other causes of this rare condition – it could not be assumed that it was asbestos related. The claimant’s submission was essentially that if Mrs Kerr’s occupational exposure to asbestos dust created a material risk of peritoneal mesothelioma, the Fairchild exception should apply if the true cause of the disease cannot be known.  

After hearing expert evidence, the court concluded that: “….if Mrs Kerr’s work as a teacher exposed her to any risk of developing peritoneal mesothelioma, a doubtful proposition in itself, the risk was so small as to merit disregard (sometimes referred to as being de minimis). In other words it was not material.”

So, the material risk case failed. But in any event the court went on to conclude that there was no proper basis to extend the “Fairchild exception” to cases where there are multiple alternative causes of the mesothelioma.

This is a timely reminder of the quality of evidence needed by a claimant to establish liability and that there are limits on how far the rules on causation can be flexed in asbestos litigation. 

New time-bar laws coming?

In the Scottish Law Commission’s Report on Damages for Personal Injury (read more here) the thorny issue of time-bar in asbestos claims was addressed. Under Scots law, there is one clock when someone is diagnosed with an actionable asbestos related disease. That clock does not reset upon the development of a more serious asbestos related condition. That is, there is no “two disease rule”. This means that someone is time-barred from pursuing a mesothelioma claim, for example, because they did not raise court proceedings (and take provisional damages) following an earlier asymptomatic asbestos related diagnosis. This contrasts with the position in England & Wales. 

The SLC considered various options to try and reach a solution which was equitable to both claimant and defence interests. It settled on a solution on the following terms:

• Someone suffering from pleural plaques or asymptomatic asbestosis/DPT  would
  not be time-barred when seeking to raise an action of damages for mesothelioma (or any symptomatic asbestos related condition) which develops many years later. The standard 3-year limitation period would nevertheless apply to the asymptomatic pleural plaques claim.
• The three-year clock for the symptomatic asbestos-related condition will begin no earlier than the date on which the injured person became actually or constructively aware of their diagnosis and their right of action 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.
• The same changes to the time-bar rules will apply to the relatives of someone who died from an asbestos related condition. 

The proposed changes to the rules on time-bar might remove the need for some provisional damages settlements, but not all. In Scotland a provisional damages settlement is a deemed admission of liability – namely the negligent exposure of the claimant to asbestos dust. The SLC considered whether 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. That would have allowed parties to reach a provisional damages settlement on a pragmatic basis without any binding admissions being made. The SLC recommended that there should be no such deferment of the establishment of liability as doing so would risk the loss of evidence through the passage of time.

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