In the last week there has been a significant development in the quantification of damages in Scotland for actions concerning asbestos related pleural plaques. The case of WW v The Advocate General for Scotland 2015 CSOH 111 is the first case since the enactment of the Damages (Asbestos Related Conditions)(Scotland) Act 2009 (“the Act”) to address the issue. This reversed the House of Lord’s decision in Rothwell v Chemical & Insulating Co Ltd  1 AC 281, which held that the development of pleural plaques in itself does not amount to a personal injury giving rise to the right of action in tort/delict. Since the Act was enacted, a Framework Agreement has been adhered to by Pursuers and Defenders’ agents, whereby pursuers can accept prescribed sums in provisional or full and final settlement of their claims. Full and final settlement sums varied between £6,000 and £8,000, based upon the Pursuer’s age at the time of settlement. The provisional award was fixed at £4,000, regardless of age.
WW was a 69 year old retired electrician who served for eight years in the Royal Navy. During his service, he was exposed to asbestos and it was conceded that, as a result, the Pursuer developed pleural plaques. The pursuer was diagnosed with only a 5% chance of developing mesothelioma, however suffered from severe anxiety related to his diagnosis. The case proceeded to proof on quantum, where Lord Pentland awarded the sum of £8,500 in provisional damages.
In coming to this decision, Lord Pentland considered the approach towards quantum in cases prior to the Rothwell decision, as well as the recent Northern Irish case of McCauley v Harland & Wolff NICA 28. The approach towards damages pre-Rothwell was to increase the quantification dependent upon the given percentage risk of the Pursuer developing mesothelioma and/or further asbestos related illness.
It is clear that this decision will impact the applicability of the extra-statutory framework which is currently in place.
The cost to Defenders of provisional settlement is likely to increase. Where liability attaches, it will no longer be sufficient to establish that the Pursuer has pleural plaques to settle at £4k, there will be a requirement to obtain or demand expert medical opinion on the percentage risk of return conditions. This outlay will add to the costs of these claims. The lack of consistency and clarity of the Framework Agreement structure could lead to more protracted negotiations between agents, adding to costs and delaying settlement.
This case is yet another complication for those defending pleural plaques cases, particularly in light of the recent decision in Boyd v (First) Gates (UK) Ltd 2015 CSOH 100. It was held in Boyd that, by agreeing provisional settlement under s12 of the Administration of Justice Act 1982, this implied acceptance of liability and the Defender would require to pay damages if the Pursuer develops the specified return conditions. Both these cases will have an impact on the cost effectiveness of provisional settlement to Defenders and the attractiveness of provisional settlement to Pursuers.