Future Mesothelioma Deaths and Past Full‑and‑Final Settlements: The Uniform Meaning of “Liability to Pay Damages” under the Damages (Scotland) Act 2011

1. Introduction

In Veale & Ors v Scottish Power UK Plc [2025] UKSC 45, the United Kingdom Supreme Court, in a judgment delivered by Lord Reed (with whom Lords Briggs, Hamblen, Leggatt and Burrows agreed), resolved an important question on the scope of the “mesothelioma exception” in the Damages (Scotland) Act 2011 (“the 2011 Act”).

The decision clarifies whether relatives of a deceased person who dies of mesothelioma can rely on section 5 of the 2011 Act to claim non‑patrimonial damages under section 4(3)(b), even if the deceased had many years earlier entered into a full and final settlement of his asbestos‑related claim before he actually developed mesothelioma.

The core interpretative issue was the meaning of the phrase liability to pay damages in section 5(1)(a). The defenders argued that this meant a liability to pay damages for mesothelioma that already existed at the time of settlement; the pursuers argued that it meant any liability to pay damages arising from the wrongful act or omission, regardless of whether mesothelioma had yet developed. The Supreme Court emphatically adopted the latter view.

The case is significant on two planes:

• Substantive damages law in Scotland: it confirms that the mesothelioma exception protects families even where the deceased settled an earlier asbestos claim (including a risk element) long before mesothelioma was diagnosed.
• Constitutional/statutory interpretation principles: it reiterates the primacy of statutory text, the need for internal consistency of repeated phrases, and the limited role of headings and legislative history when the enacted words are clear.

2. Factual and Procedural Background

2.1 Mr Crozier’s employment and original action

The deceased, Robert Crozier, was employed by the defenders, Scottish Power UK plc, between 1969 and 1992 and was exposed to asbestos during that employment. As a result, he developed pleural plaques and asbestosis.

In 2014 he brought an action for damages against Scottish Power. Crucially, his claim did not merely cover his existing asbestos‑related conditions; it also included a component of damages for the risk that he might in the future develop mesothelioma. The action was settled by agreement.

At the time of this settlement:

• Mr Crozier was not suffering from mesothelioma.
• The settlement was treated as discharging all the defenders’ liability to him arising from his asbestos exposure, including liability should he later develop mesothelioma.

Both parties accepted that, as a matter of ordinary law of obligations, the settlement was a full and final compromise of all claims arising from the asbestos exposure, including any claim Mr Crozier might otherwise have had if mesothelioma later developed.

2.2 Development of mesothelioma and the relatives’ action

Mr Crozier subsequently developed mesothelioma and died of that disease in 2018.

His relatives (the pursuers) – members of his immediate family – raised the present action under the 2011 Act, seeking damages under section 4(3)(b), i.e. non‑patrimonial damages for:

• distress and anxiety in contemplation of his suffering before death,
• grief and sorrow caused by his death, and
• loss of his society and guidance.

In short, they sought the standard “loss of society” and related solatium available to relatives upon wrongful death in Scotland.

2.3 The defenders’ reliance on section 4(2)

The defenders contended that the action was barred by section 4(2) of the 2011 Act, which provides (in essence) that no liability arises to relatives where the liability to pay damages to the deceased has been excluded or discharged by the deceased before death, except as provided for in section 5.

Their argument ran as follows:

1. The liability to pay damages to Mr Crozier in respect of his asbestos exposure had been fully discharged by the 2014 settlement.
2. Section 4(2) therefore applied and extinguished any subsequent liability to relatives under section 4(1).
3. The “exception for mesothelioma” in section 5 did not apply, because the condition in section 5(1)(a) – that the liability to pay damages to A … is discharged … by A before A’s death – was said to mean a liability to pay damages for mesothelioma, which (so the defenders argued) did not yet exist at the time of the 2014 settlement.

2.4 Lower court decisions and appeal to the Supreme Court

The defenders’ argument failed at first instance and on appeal:

• The Lord Ordinary rejected it: Veale v Scottish Power UK plc [2023] CSOH 50; 2023 SLT 755.
• The Inner House (First Division) upheld that decision: [2024] CSIH 14; 2024 SC 373, but granted permission to appeal to the Supreme Court.

The Supreme Court dismissed the appeal, essentially endorsing the reasoning of the courts below.

3. Statutory Framework

3.1 Section 3 – when sections 4–6 apply

Section 3 of the 2011 Act sets the gateway conditions for the operation of sections 4–6:

Sections 4 to 6 apply where a person (“A”) dies in consequence of suffering personal injuries as the result of the act or omission of another person (“B”) and the act or omission –

(a) gives rise to liability to pay damages to A (or to A’s executor), or

(b) would have given rise to such liability but for A’s death.

Key features:

• It is of general application: it covers any personal injuries leading to death, not just mesothelioma.
• It introduces the phrase liability to pay damages, which becomes central to the case.

3.2 Section 4 – relatives’ claims and the general bar where the deceased settled

Section 4 governs the liability of the wrongdoer (B) to relatives of the deceased (A):

• Section 4(1) establishes liability to pay:
  • to immediate family members, the sums in s 4(3)(a) and (b); and
  • to other relatives, the sum in s 4(3)(a) only.
• Section 4(3) defines the heads of damages:
  • s 4(3)(a) – patrimonial loss: loss of support and funeral expenses.
  • s 4(3)(b) – non‑patrimonial loss: distress, grief and loss of society and guidance.

Section 4(2) is crucial. It provides, in substance, that no liability under section 4(1) arises if:

the liability to pay damages to A (or to A’s executor) in respect of the act or omission is excluded or discharged … by A before A’s death…

This represents the longstanding rule (traceable back to section 1(2) of the Damages (Scotland) Act 1976) that a full and final settlement by the injured person extinguishes subsequent relatives’ claims, preventing “double recovery” for the same wrong.

3.3 Section 5 – the mesothelioma exception

Section 5 carves out an exception from that general bar:

5(1) This section applies where –

(a) the liability to pay damages to A (or to A’s executor) is discharged … by A before A’s death,

(b) the personal injury in consequence of which A died is mesothelioma, and

(c) the discharge and the death each occurred on or after 20th December 2006.

5(2) Liability arises under section 4(1) but is limited to the payment of such sum of damages as is mentioned in paragraph (b) of section 4(3).

Thus, if section 5(1) applies:

• The bar in section 4(2) is lifted.
• Relatives may bring claims under section 4(1), but only for the non‑patrimonial damages in section 4(3)(b) (grief, distress, loss of society and guidance). They cannot recover the loss of support/funeral expenses which, in principle, were factored into the deceased’s own settlement.

The central interpretative controversy in Veale turns on what is meant by the liability to pay damages in section 5(1)(a).

3.4 Legislative history: the 1976 Act and the 2007 Act

Before the 2011 Act:

• Section 1(2) of the Damages (Scotland) Act 1976 contained a similar bar: if the deceased had already settled his or her personal claim, relatives could not claim under the Act on death.
• The Rights of Relatives to Damages (Mesothelioma) (Scotland) Act 2007 (“the 2007 Act”) disapplied that bar in the case of mesothelioma, creating the first statutory “mesothelioma exception”.

Sections 3–5 of the 2011 Act essentially re‑enact, in consolidated form, the substance of the 2007 Act and the earlier 1976 regime. The Supreme Court therefore read the 2011 provisions in that historical and policy context, though it treated the words of the 2011 Act as the controlling text.

4. The Issue Before the Supreme Court

The dispute turned on a tightly defined question of statutory interpretation:

Does section 5(1)(a) of the Damages (Scotland) Act 2011 require that, at the time when the deceased discharges the liability to pay damages (for example, by settlement), he or she is already suffering from mesothelioma?

Translated into the language of the statute, the question was:

• Does the phrase the liability to pay damages in section 5(1)(a) refer specifically to a liability to pay damages for mesothelioma that exists at the time of discharge?
• Or does it have the same general meaning it bears in sections 3 and 4 – referring simply to the liability to pay damages arising from the wrongful act or omission, regardless of which precise injury has manifested at the time of settlement?

If the defenders were right, the 2014 settlement would mean section 5(1)(a) was not satisfied, and relatives could not rely on the mesothelioma exception. If the pursuers were right, section 5(1)(a) was satisfied, and section 5 disapplied the bar in section 4(2), allowing the relatives’ non‑patrimonial claim to proceed.

5. Summary of the Judgment

The Supreme Court unanimously dismissed the appeal and held:

1. The phrase liability to pay damages in section 5(1)(a) has the same general meaning as it does in sections 3 and 4. It refers to the liability to pay damages to the deceased (or his executor) arising from the wrongful act or omission, not solely to a liability to pay damages for mesothelioma.
2. Nothing in section 5(1)(a) requires that, at the time of discharge, the deceased was already suffering from mesothelioma or even that there was an extant mesothelioma claim.
3. On the facts, the 2014 settlement plainly discharged the defenders’ liability to pay damages to Mr Crozier in respect of his asbestos exposure. That was enough to satisfy section 5(1)(a). Conditions (b) and (c) were also satisfied:
   • his death was caused by mesothelioma (s 5(1)(b)); and
   • both the discharge and death occurred on or after 20 December 2006 (s 5(1)(c)).
4. Section 5 therefore applied, lifting the bar in section 4(2) and enabling the pursuers to claim non‑patrimonial damages only under section 4(3)(b).
5. The defenders’ arguments based on:
   • the heading of section 5,
   • the legislative history and “mischief” the legislation was intended to address, and
   • alleged absurdity or anomaly,
   all failed. None justified reading into section 5(1)(a) an additional condition that the deceased must have been suffering from mesothelioma at the time of discharge.

In consequence, the Court confirmed that relatives of anyone who later dies of mesothelioma can rely on section 5, even where the deceased had concluded a full and final asbestos settlement years earlier, long before mesothelioma materialised.

6. Analysis of the Court’s Legal Reasoning

6.1 Textual analysis and the uniform meaning of “liability to pay damages”

The Court’s starting point was a careful reading of the text of sections 3–5. The phrase liability to pay damages appears in:

• section 3 (gateway condition for the operation of sections 4–6),
• section 4(2) (the general bar on relatives’ claims where the deceased has settled), and
• section 5(1)(a) (the first condition for the mesothelioma exception).

Lord Reed emphasised the need for internal consistency:

• Section 3 is a general provision, applying to all personal injuries leading to death: there is no conceivable basis for restricting the phrase liability to pay damages in section 3 to liability for mesothelioma.
• Section 4 is governed by section 3; it too is of general application and makes no disease‑specific distinction.
• Section 4(2) therefore plainly uses liability to pay damages in a general sense: it refers to any liability to pay damages to the deceased in respect of the wrongful act or omission.
• Section 5(1)(a), which uses identical language and creates an exception to section 4(2), must be read in the same way absent a clear textual reason to differentiate.

This is a classic application of the principle that, within a tightly integrated statutory scheme, identical phrases should ordinarily be given identical meanings. There was nothing in the structure or wording of section 5 to suggest that liability to pay damages suddenly took on a narrower, mesothelioma‑specific connotation.

The Court also made an important logical point undermining the defenders’ position. Suppose, for argument’s sake, that:

• section 5(1)(a) refers only to liability to pay damages for mesothelioma that already exists at the time of settlement; and
• Mr Crozier’s 2014 settlement did not discharge any such liability because he did not yet suffer from mesothelioma.

Then:

• It would follow that section 4(2) – which is expressed in identical terms – also did not apply to bar the relatives’ claim, because that provision likewise requires that the liability to pay damages has been excluded or discharged by the deceased before death.
• On this hypothesis, there would be no bar under section 4(2), so the relatives would be free to pursue claims under section 4(1) directly, and would not need to invoke section 5 at all.

In other words, the defenders’ narrow construction of “liability to pay damages” was self‑defeating: either it made no difference (because section 4(2) would not bite) or, if section 4(2) did bite, then section 5(1)(a) would be satisfied on the Court’s broader reading in any event.

Beyond logic, the Court also pointed out that, even on the defenders’ own terms, the 2014 settlement included a head of claim for risk of future mesothelioma. The effect of the settlement was to discharge the defenders’ liability to pay damages in the event that Mr Crozier later did develop mesothelioma. So even if “liability to pay damages” were limited to mesothelioma, it was, in fact, discharged by the settlement.

6.2 The heading of section 5

Counsel for the defenders relied on the heading of section 5 – Discharge of liability to pay damages: exception for mesothelioma – arguing that this showed the whole section is about discharge of a liability to pay mesothelioma‑specific damages.

The Court rejected that contention. While headings can be used as an aid to construction, they cannot override or re‑shape clear operative text. Here:

• The heading is entirely consistent with the straightforward reading of section 5: it deals with cases where a liability to pay damages (generally) has been discharged, and creates an exception when the death is caused by mesothelioma.
• The heading does not say “discharge of liability for mesothelioma”; it simply refers to “liability to pay damages” and describes the exception as being for mesothelioma – correctly reflecting section 5(1)(b), which makes mesothelioma the relevant cause of death, not a pre‑condition at the time of settlement.

On orthodox principles, the heading could not be used to narrow the plain meaning of section 5(1)(a).

6.3 Background materials and the “mischief” of the 2007 Act

The defenders also invoked extrinsic materials, in particular the Scottish Executive’s Policy Memorandum for the Bill that became the 2007 Act, and argued that:

• The evil or “mischief” that prompted the legislation was a discretionary dilemma faced by those who already knew they were suffering from mesothelioma.
• That dilemma was whether to:
  • claim damages during their (short) remaining life, thereby barring any subsequent relatives’ claim; or
  • forego claiming so that their relatives could recover what was often a larger sum after death.
• Accordingly, the exception should be narrowly read as addressing only that precise problem – i.e. cases where the victim is already a diagnosed mesothelioma sufferer at the time of settlement.

The Policy Memorandum did indeed frame the problem in precisely those terms. For example, it stated (para 8) that:

mesothelioma sufferers face the dilemma of either pursuing their own damages claim or not pursuing their claim before they die so that their executor and relatives can claim awards which total more than the award of damages the sufferer was entitled to.

And at para 12:

The policy behind the Bill is to remove the dilemma which mesothelioma sufferers find themselves in … The Bill will disapply section 1(2) of the 1976 Act … where the sufferer has sustained personal injuries as a consequence of mesothelioma and dies as a result of those injuries, irrespective of whether the deceased has already recovered damages or obtained a settlement.

Lord Reed accepted that the mischief was accurately described: the legislation was indeed introduced to remove this harsh choice facing diagnosed mesothelioma sufferers. However, he stressed three key points.

6.3.1 Primacy of the enacted text

First, and fundamentally, courts must give effect to the meaning of the legislation as enacted, not to an inferred “policy” if that would contradict clear statutory wording. Lord Reed echoed Lord Nicholls’ statement in R v Secretary of State for the Environment, Transport and the Regions, ex p Spath Holme Ltd [2001] 2 AC 349, 397:

Citizens, with the assistance of their advisers, are intended to be able to understand parliamentary enactments, so that they can regulate their conduct accordingly. They should be able to rely upon what they read in an Act of Parliament.

He further cited Lord Hodge in R (O) v Secretary of State for the Home Department [2022] UKSC 3; [2023] AC 255, para 30, emphasising that external aids cannot displace the clear and unambiguous meaning of statutory language that does not produce absurdity. In this case:

• Section 5(1)(a) is unambiguous.
• Its meaning remains clear even when legislative history is considered.
• It does not produce absurdity (as discussed below).

The Court therefore refused to “distort” the statutory language in order to confine its operation strictly to the mischief described in the Policy Memorandum.

6.3.2 Rewriting would be required to narrow the provision

Secondly, to narrow section 5 so that it only covered diagnosed mesothelioma sufferers at the time of settlement would require the court effectively to redraft the statute. It would not be enough simply to insert “for mesothelioma” after “damages” in section 5(1)(a). One would have to create a new condition, along the following lines:

(d) A was suffering, and knew that he was suffering, from mesothelioma at the time of the discharge.

For obvious constitutional reasons, the Court held that it had no power to impose such a substantial new condition. Section 5(1) as enacted contains no such requirement, and it would be an impermissible judicial re‑legislation to insert one.

6.3.3 Rational reasons for broader protection

Thirdly, the Court noted that, although the mischief was framed with reference to diagnosed sufferers, there were clear, rational reasons why the legislature might deliberately “go further” and protect a broader class of individuals.

A narrower provision, tied to actual knowledge of a mesothelioma diagnosis at the time of settlement, would have excluded:

• People who were suffering from mesothelioma at the time of discharge but had not yet been diagnosed or were unaware of their condition.
• People like Mr Crozier who only later developed mesothelioma, having previously settled a claim that included a risk element.

The legislature may have legitimately wished to avoid these fine and potentially arbitrary distinctions and to adopt a simple rule: the mesothelioma exception applies if:

• a liability to pay damages (arising from the wrongful act) was discharged before death; and
• the eventual cause of death was mesothelioma (with the timing of diagnosis or knowledge being irrelevant).

Thus, the broader scope of sections 3–5 can be understood as a deliberate policy choice, not an accidental overshoot that the courts should retrospectively trim down.

6.4 Avoidance of absurdity and anomaly

The defenders invoked the long‑standing interpretative principle that statutes should not be read so as to produce absurd or anomalous results if another plausible construction is available. They said it was:

• Absurd that Mr Crozier’s relatives could claim for loss caused by his mesothelioma when no such claim was open to Mr Crozier himself (because he had settled).
• Anomalous that those at risk of mesothelioma receive this special protection, whereas those at risk of other fatal asbestos‑related conditions, such as lung cancer, do not.

The Court answered both points succinctly.

6.4.1 Relatives claiming when the deceased could not

The suggestion of absurdity rests on the notion that it is somehow illogical for relatives to recover when the deceased could not have done so. But section 5 is expressly designed to create exactly that situation.

The entire policy of the mesothelioma exception – as recognised since the 2007 Act – is that:

• A mesothelioma victim should be able to obtain damages during his or her life (including, where appropriate, for anticipated loss of support to dependants), without thereby destroying the relatives’ right to claim their own non‑patrimonial damages on death.
• The bar on relatives’ claims in section 4(2) is therefore expressly lifted where the conditions in section 5(1) are met.

It is of the essence of the statutory scheme that relatives may claim in circumstances where the deceased has already recovered and discharged his or her own claim. That consequence is not absurd; it is the whole point of the exception.

6.4.2 Disease‑specific protection for mesothelioma

As to the alleged anomaly that only mesothelioma, and not lung cancer or other conditions, enjoys such an exception, the Court pointed out that:

• Section 5 is clearly, and explicitly, framed as an exception for mesothelioma.
• It is not the Court’s function to question or adjust that legislative line‑drawing. Parliament (and the Scottish Parliament) are entitled to treat mesothelioma as a special, highly exceptional case.
• The Scottish Law Commission itself had considered whether to extend the exception to other diseases and concluded that mesothelioma cases were highly exceptional and did not justify broader extension at present: see Report on Damages for Wrongful Death, Scot Law Com No 213 (2008), paras 3.27–3.28.

Any perceived unfairness between mesothelioma and other conditions is thus a matter of policy for the legislature, not for judicial correction through strained interpretation.

7. Precedents and Authorities Discussed

7.1 R v Secretary of State for the Environment, Transport and the Regions, ex p Spath Holme Ltd [2001] 2 AC 349

In Spath Holme, the House of Lords affirmed vital rule‑of‑law principles about statutory interpretation. Lord Nicholls stressed that Acts of Parliament are intended to be intelligible to citizens and their advisers, who should be able to rely on the words they find in the statute book.

This case is frequently cited for the proposition that:

• Courts must be cautious in using ministerial statements, policy documents or other extrinsic materials to “qualify” unambiguous statutory language.
• Legislative history is relevant to construing ambiguous provisions, but cannot be used to contradict or narrow words that are clear on their face.

Lord Reed uses this authority to bolster the principle that, while the Policy Memorandum to the 2007 Bill sheds light on the problem Parliament was addressing, it cannot override the text of sections 3–5 as enacted in the 2011 Act.

7.2 R (O) v Secretary of State for the Home Department [2022] UKSC 3; [2023] AC 255

In O, the Supreme Court (per Lord Hodge) reiterated the limited role of external aids to construction. Such materials:

• can illuminate the context and purpose of legislation, and
• can assist where the statutory language is ambiguous or opaque,

but they cannot “displace” the ordinary meaning of words that are clear and non‑absurd.

Lord Reed cites this decision to underline that the background materials to the 2007 Act – including the Policy Memorandum – do not entitle the Court to write an additional condition into section 5(1)(a) requiring contemporaneous mesothelioma at the point of settlement.

7.3 Scottish Law Commission, Report on Damages for Wrongful Death, Scot Law Com No 213 (2008)

This Report informed the drafting of the 2011 Act. The Commission considered whether to mirror the mesothelioma exception for other diseases or injuries. It concluded (paras 3.27–3.28) that mesothelioma cases were:

• “highly exceptional”; and
• did not justify extending the exception to other conditions at that time.

The 2011 Act, including the present section 5, broadly reflects the draft Bill annexed to that Report. The Supreme Court used this background to reinforce the conclusion that Parliament deliberately chose to create a disease‑specific exception for mesothelioma and not for other conditions, undermining any argument that this differential treatment should be “ironed out” by interpretation.

8. Impact and Future Implications

8.1 Practical impact on asbestos and mesothelioma litigation

The decision has clear and immediate consequences for how asbestos claims and settlements will be approached in Scotland.

8.1.1 Effect on historic and future settlements

The Court’s construction means that:

• A full and final settlement of an asbestos claim (including a risk of mesothelioma) does not bar the deceased’s relatives from later claiming non‑patrimonial damages if the deceased goes on to develop mesothelioma and dies from it.
• Section 5 will more generally apply whenever:
  • there has been any discharge of the liability to pay damages to the injured person (by settlement, discharge, compromise, etc.),
  • the eventual cause of death is mesothelioma, and
  • both discharge and death occurred after 20 December 2006.

Defenders and insurers can no longer argue that, because a settlement occurred long before mesothelioma developed, the mesothelioma exception is inapplicable. The timing of the disease is legally irrelevant; what matters is the timing of discharge and death, and that death was caused by mesothelioma.

8.1.2 Litigation and settlement strategy

From a strategic perspective:

• Claimants who have not yet developed mesothelioma may be more willing to accept full and final settlements for asbestos‑related conditions and risk of mesothelioma, knowing that such settlements will not sacrifice their relatives’ future right to claim non‑patrimonial damages if mesothelioma later occurs.
• Defenders and insurers must price into settlements the likelihood that, in mesothelioma cases, a second wave of claims (by relatives) will follow if the injured person subsequently dies of the disease.
• The distinction between provisional damages and full and final settlements may be less critical in mesothelioma‑risk cases from the relatives’ perspective, though still highly relevant to the injured person’s own position.

The result is likely to be:

• more predictable family protection in asbestos‑exposure cases, and
• greater overall cost exposure for defendants in mesothelioma scenarios.

8.2 Clarification of statutory interpretation principles

The judgment is also a notable reaffirmation of several important interpretative principles, applicable far beyond this field:

• Uniform meaning of repeated phrases: where the same phrase (“liability to pay damages”) appears in closely linked sections (3, 4 and 5), it is presumed to have a consistent meaning unless the statute clearly indicates otherwise.
• Primacy of plain language: courts will not strain or rewrite clear statutory text to fit perceived legislative “purpose” or to confine the law strictly to the mischief remembered from legislative history.
• Limited role of headings and background materials: headings and policy memoranda can assist where language is uncertain, but cannot be used to insert additional conditions or otherwise override the clear meaning of the operative provisions.
• Absurdity is narrowly understood: the fact that Parliament has made a policy choice to favour a particular group (like families of mesothelioma victims) does not qualify as “absurdity” in the technical sense that would justify a strained construction.

These principles will guide courts in future disputes over other specialised statutory regimes – especially where disease‑specific exceptions or complex compensation schemes are involved.

8.3 Implications for future legislative reform

The Court expressly recognised that Parliament and the Scottish Parliament may revisit whether similar exceptions should apply for other diseases (e.g. asbestos‑induced lung cancer) or other categories of personal injury. The Scottish Law Commission has already considered this issue and, for now, confined the exception to mesothelioma as “highly exceptional”.

However, the Veale decision clarifies the current law so that:

• Legislators can now see exactly how broadly the present mesothelioma exception operates (covering both diagnosed and future mesothelioma arising after settlement).
• If policy makers consider that similar treatment should be extended or restricted, they must do so explicitly in statutory text, not in explanatory documents or memoranda.

9. Clarification of Key Legal Concepts

To make the judgment more accessible, it is helpful to demystify some of the technical terms used.

9.1 “Liability to pay damages”

This refers to the legal obligation of a wrongdoer (B) to compensate the injured person (A) – or A’s executor – for loss caused by B’s wrongful act or omission. It is a general expression, not tied to any particular type of injury or disease unless specifically qualified.

9.2 “Discharge” of liability

A liability is “discharged” when it is brought to an end – for example by:

• payment of an agreed sum in settlement,
• a contractual release, or
• a final court judgment satisfied in full.

In Veale, the 2014 settlement discharged the defenders’ liability to Mr Crozier for all consequences of his asbestos exposure, including future mesothelioma.

9.3 “Antecedent agreement”

This means an agreement entered into before death (here, the settlement) by which the injured person contracts out of or compromises their right to damages, thus discharging the defendant’s liability.

9.4 Patrimonial vs non‑patrimonial loss

• Patrimonial loss is economic loss – chiefly:
  • loss of financial support (income, maintenance), and
  • reasonable funeral expenses.
• Non‑patrimonial loss covers losses that are non‑financial in nature:
  • grief and sorrow,
  • distress and anxiety,
  • loss of society and guidance.

Under section 5(2), when the mesothelioma exception applies, relatives can recover only non‑patrimonial damages under section 4(3)(b). Claims for loss of support (patrimonial loss) remain barred where the deceased has already discharged the liability.

9.5 “Mesothelioma exception”

This is the shorthand label for section 5 of the 2011 Act and its predecessor in the 2007 Act. It is an exception to the general rule that relatives’ claims are barred if the deceased settled his or her own claim before death.

The exception applies if:

• the deceased discharged the liability to pay damages before death,
• the death was caused by mesothelioma, and
• both discharge and death occurred on or after 20 December 2006.

When it applies, relatives can recover non‑patrimonial damages notwithstanding the earlier settlement.

9.6 “Immediate family”

“Immediate family” is defined in the 2011 Act and includes those closely related to the deceased (such as spouses, civil partners, children, parents). Immediate family members are entitled to both patrimonial and non‑patrimonial damages under section 4(1)(a), subject to section 4(2) and (where relevant) the mesothelioma exception.

9.7 “Delict”

“Delict” is the Scots law term broadly equivalent to “tort” in English law – a civil wrong (such as negligence) giving rise to liability in damages.

10. Conclusion

Veale & Ors v Scottish Power UK Plc [2025] UKSC 45 definitively settles the scope of the mesothelioma exception in the Damages (Scotland) Act 2011.

The Supreme Court held that:

• The expression liability to pay damages in section 5(1)(a) carries the same general meaning across sections 3–5 and does not require that the deceased was already suffering from mesothelioma at the time of settlement.
• Where the deceased later dies of mesothelioma, his or her relatives may invoke section 5 to claim non‑patrimonial damages, even if the deceased had years earlier concluded a full and final asbestos settlement that encompassed the risk of mesothelioma.
• Attempts to confine section 5 to diagnosed mesothelioma sufferers at the time of settlement would involve an impermissible rewriting of clear statutory text, contrary to constitutional principles affirmed in Spath Holme and O.
• Any perceived anomalies, such as disease‑specific protection for mesothelioma or the ability of relatives to claim when the deceased could not, reflect considered legislative policy choices and do not justify interpretative distortion.

The decision strengthens the protection afforded to families affected by mesothelioma, provides certainty for practitioners in asbestos litigation, and reaffirms important constitutional principles about the primacy of statutory text and the limits of purposive interpretation. It stands as a leading authority on how disease‑specific exceptions in damages legislation should be read, and as a model of rigorous, text‑anchored statutory interpretation within a broader constitutional framework.