Court proposes procedure under Mesothelioma Bill
6 Apr 07
First case on newly passed right to damages measure
A Court of Session judge has taken the unusual step of issuing an opinion on a measure not yet formally enacted.
The Rights of Relatives to Damages (Mesothelioma) (Scotland) Bill, passed by the Scottish Parliament last month but still awaiting royal assent, enables someone who suffers from the terminal asbestos-related disease mesothelioma to settle an action of damages in relation to the disease without prejudicing the rights of relatives to pursue a separate claim after the sufferer's death.
It has been given retrospective effect so as to apply where a victim's claim was decided or settled on or after 20 December 2006.
Yesterday in the Court of Session Lady Paton gave an opinion as to how a case might be continued after a settlement so as to avoid the relatives having to raise separate proceedings. She was ruling in the case of Thomas Dow, whose claim was settled soon after 20 December but who died on 20 February.
Lady Paton said it would be important that the court did not issue an actual decree for payment, as that would bring the action to an end. Instead the proceedings should be sisted (suspended), either for a fixed period or until the victim's death. The victim's solicitors should undertake to advise the court in the event of the victim's death, with the case coming back before the court at that point to determine further procedure.
She observed that in some cases it might be necessary to have a second action, such as where a case did not settle and the court was asked to rule on a claim.
Lady Paton's opinion can be read at http://www.scotcourts.gov.uk/opinions/2007CSOH71.html .