ELAINE CROZIER OR VEALE AND OTHERS AGAINST SCOTTISH POWER UK PLC

Factual and Procedural Background

Robert Crozier, employed as a mechanical fitter by the Defendant between 1969 and 1992, was exposed to asbestos during his employment. In 2014, he initiated a claim against the Defendant for damages related to pleural plaques and asbestosis resulting from this exposure. This claim included damages for the risk of developing mesothelioma, although Mr. Crozier did not have mesothelioma at the time of settlement. The claim was settled on 7 October 2014, and a decree of absolvitor was pronounced on 26 February 2015. Following Mr. Crozier’s death from mesothelioma on 15 October 2018, his immediate family (the Plaintiffs) brought a subsequent action seeking damages for anxiety, distress, loss, grief, and loss of society pursuant to section 4(3) of the Damages (Scotland) Act 2011. The Defendant contended that this action was incompetent, relying on section 4(2) of the 2011 Act, arguing that the prior settlement barred the claim. The Plaintiffs relied on section 5(1), which provides an exception for deaths caused by mesothelioma, contending it applied even though Mr. Crozier did not have mesothelioma at the time of settlement. The central legal question was whether section 5(1) entitled relatives to claim damages following death from asbestos-related mesothelioma despite an earlier settlement.

Legal Issues Presented

1. Does section 5(1) of the Damages (Scotland) Act 2011 permit relatives of a person who died of mesothelioma to claim damages notwithstanding that the deceased had settled a prior claim related to asbestos exposure?

Arguments of the Parties

Defendant's Arguments

• The Plaintiffs' action was incompetent because the prior settlement discharged the Defendant's liability for damages related to asbestos exposure.
• Delictual liability arises from a single wrong, permitting only one claim to address all losses; the prior decree was final and res judicata.
• Section 5(1) should be interpreted narrowly, requiring that the deceased was suffering from mesothelioma at the time of settlement and had raised proceedings while so suffering.
• The heading "Exception for mesothelioma" indicates that section 5 applies only if the settled claim concerned mesothelioma.
• Allowing the Plaintiffs' claim would breach the single action rule and create an absurd result permitting two claims for the same wrong.
• Explanatory Notes and legislative history support a restrictive interpretation of section 5(1).

Plaintiffs' Arguments

• It is accepted that generally no claim can be made by relatives if the deceased settled a claim (section 4(2)).
• Section 5 provides an exception when the deceased died of mesothelioma, and all its conditions were met here.
• The prior settlement discharged liability for pleural plaques and asbestosis arising from the same acts, but Mr. Crozier died of mesothelioma, satisfying section 5(1)(b).
• The Lord Ordinary's interpretation that the exception applies simply because the deceased died of mesothelioma is consistent with the statute's clear and unambiguous wording.
• Allowing relatives to claim damages after death does not breach the single action rule, as the deceased’s claim and the relatives’ claim relate to different aspects of loss and timing.
• The statute contains no requirement that the deceased was suffering from mesothelioma at the time of settlement; imposing such a condition would require reading words into the statute.
• Reliance on Explanatory Notes or legislative history cannot override the clear statutory language.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Aitchison v Glasgow City Council 2010 SC 411	Single action rule: only one action for all losses caused by a single wrong	Confirmed that a claimant cannot bring multiple actions for the same wrong; applied to interpret liability discharge by settlement.
Jeromson v Shell Tankers (UK) [2001] ICR 1223	Foreseeability in asbestos exposure cases; liability arises if risk of pulmonary injury was foreseeable	Supported the view that liability included risk of mesothelioma even if not diagnosed at settlement.
R (O) v Home Secretary [2023] AC 255	Statutory interpretation: external aids do not displace clear statutory language	Used to reject reliance on Explanatory Notes when statutory language was clear and unambiguous.
Dunlop v McGowans 1980 SC (HL) 73	Finality of decree of absolvitor; res judicata	Supported the Defendant’s argument that settled claims bar further claims on the same subject matter.
Dow v West of Scotland Shipbreaking Co 2007 Rep LR 59	Legislative purpose behind mesothelioma exception	Referenced to explain the policy rationale of removing the dilemma faced by mesothelioma sufferers in settling claims.
MacMillan v T Leith Developments 2017 SC 642	Principles of statutory interpretation; context and ordinary meaning	Applied to determine the intention of Parliament from the statutory language in context.
Cora Foundation v East Dunbartonshire Council 2014 SC 665	Legal certainty in statutory interpretation	Supported the principle that courts should not impose conditions not found in the statute.
Fothergill v Monarch Airlines [1981] AC 251	Statutory interpretation and effect of legislative history	Referenced to caution against reliance on legislative history contrary to clear statutory wording.
R v Montila [2004] 1 WLR 3141	Role of headings in statutory interpretation	Considered in Defendant’s argument that the heading limited the scope of section 5(1).
Inglis v Robertson (1898) 25 R (HL) 70	Use of headings to construe statutory language narrowly	Used by Defendant to argue for a restrictive reading of the mesothelioma exception.

Court's Reasoning and Analysis

The court began by reaffirming the established principle that only one action can be brought for damages arising from a single wrong, referencing the single action rule. It then considered the statutory language of the Damages (Scotland) Act 2011, particularly sections 4 and 5, and the relevant legislative history including the 2007 Act which introduced the mesothelioma exception.

The court noted that section 5(1) sets out three clear criteria for the exception: (a) the deceased discharged liability before death; (b) the personal injury causing death is mesothelioma; and (c) both discharge and death occurred on or after 20 December 2006. The court emphasized that the statutory language was clear, unambiguous, and did not require that the deceased was known to be suffering from mesothelioma at the time of settlement.

The court rejected the Defendant's narrow interpretation that the settled claim must have been for mesothelioma or that the deceased must have been diagnosed at settlement. It held that "liability" in section 5(1)(a) refers broadly to liability arising from the wrongful act or omission, not limited to injuries known at settlement.

Reliance on Explanatory Notes or legislative history was deemed insufficient to displace the clear statutory wording. The court found no absurdity in allowing relatives to claim non-patrimonial damages after death from mesothelioma, even if the deceased had previously settled a related claim for asbestos-related injury. The court also considered that the prior claim included damages for the risk of mesothelioma, further supporting the application of the exception.

Consequently, the court upheld the Lord Ordinary's decision to refuse the Defendant's motion to find the action incompetent, clarifying that the refusal related specifically to the claim's competency.

Holding and Implications

The court REFUSED the reclaiming motion and upheld the interlocutor of the Lord Ordinary, confirming that the Plaintiffs' action was competent under section 5(1) of the Damages (Scotland) Act 2011.

This decision affirms that relatives of a person who dies of mesothelioma may claim damages for non-patrimonial loss even if the deceased had previously settled a claim relating to asbestos exposure, without the requirement that the deceased was diagnosed with mesothelioma at the time of settlement. The ruling clarifies the statutory interpretation of the mesothelioma exception and preserves legal certainty by adhering strictly to the statutory text. No new precedent beyond the interpretation of section 5(1) is established, and the decision directly affects the parties by permitting the Plaintiffs' claim to proceed.