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You are here: BAILII >> Databases >> Scottish Law Commission >> Scottish Law Commission (Reports) >> Report on Damages for Personal Injury (Report No. 266) URL: http://www.bailii.org/scot/other/SLC/Report/2024/SLC266.image15.html |
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(1) The Prescription and Limitation (Scotland) Act 1973 is amended as follows.
(2) After section 17, insert—
“17ZA Actions where damages claimed are for certain injuries attributable to asbestos exposure
(1) This section makes further provision about the application of section 17 in relation to an action of damages where the damages claimed consist solely of damages in respect of an injury that—
(a) is wholly or partly attributable to exposure to asbestos, and
(b) has caused or is causing impairment of the injured person’s physical condition.
(2) The reference in section 17(2)(b)(i) to the injuries in question is to be read as referring only to injuries which have caused or are causing impairment of the injured person’s physical condition.
(3) Accordingly, that reference does not include reference to—
(a) asbestos-related pleural plaques,
(b) the following injuries, provided the injury has not caused and is not causing impairment of the injured person’s physical condition—
(i) asbestos-related pleural thickening,
(ii) asbestosis.
(4) Subsection (5) applies where—
(a) the reference in section 17(2)(b)(i) to the injuries in question includes reference to one of the following injuries—
(i) asbestos-related pleural thickening,
(i) asbestosis, and
(b) the fact that the injured person has the injury was recognised at a time when it had not yet caused and was not causing impairment of the person’s physical condition.
(5) It is to be taken to have been impossible to be aware of the fact mentioned in section 17(2)(b)(i) in relation to the injury until the point at which a registered medical practitioner informed the injured person that the injury had caused, or had begun causing, impairment of the person’s physical condition.
(6) It does not matter for the purposes of subsection (4)(b) whether or not the injured person was informed that the person had the injury.
(7) This section applies in relation to an action—
(a) commenced on or after the day on which this section comes into force regardless of whether the right of action accrued before, on or after that day,
(b) commenced before the day on which this section comes into force if the action has not been finally disposed of before that day.
(8) For the purposes of this section, an action is finally disposed of—
(a) when a decision disposing of the action is made, if there is no right of appeal against the decision,
(b) if there is a right of appeal with leave or permission against such a decision—
(i) when the time period for seeking leave or permission to appeal has expired without an application for leave or permission having been made, or
(ii) when leave or permission to appeal is refused,
(c) if leave or permission to appeal against such a decision has been granted or is not required, when the time period for making an appeal has expired without an appeal having been made, or
(d) when the action is withdrawn or abandoned.
(9) In subsection (8), the reference to a decision disposing of the action includes a reference to a decision made in an appeal against an earlier decision.”.
(3) After section 18, insert—
“18ZZA Actions where damages claimed are for certain injuries or death attributable to asbestos exposure
(1) This section makes further provision about the application of section 18 in relation to an action of damages where—
(a) the deceased person died, before the day on which this section comes into force, from a personal injury that is wholly or partly attributable to exposure to asbestos, and
(b) leaving aside the possibility of the bringing of an action of damages in respect of the injury or death being allowed by virtue of section 19A, the bringing of such an action is (ignoring this section) prevented by section 18(4).
(2) Section 18(4) does not prevent the action being brought if it would have been possible, by virtue of section 17ZA, for an action—
(a) to which section 17 applied, and
(b) in which the damages claimed consisted solely of damages in respect of the injury from which the person died,
to be brought by or on behalf of the person, if alive, on the day on which section 17ZA came into force.
(3) This section applies in relation to an action commenced before the day on which this section comes into force if the action has not been finally disposed of before that day (as well as in relation to actions commenced on or after that day).
(4) An action is finally disposed of for the purposes of this section if it would be finally disposed of for the purposes of section 17ZA.”.
NOTE
Section 1 implements recommendation 12 of the Scottish Law Commission Report on Damages for Personal Injury (Scot Law Com No. 266, 2024) (“the Report”) by making further provision about the application of section 17 and section 18 of the Prescription and Limitation (Scotland) Act 1973 to symptomatic asbestos-related conditions. Paragraphs 4.40-4.52 of the Report explain the rationale for this recommendation.
Subsection (2) and (3) insert new sections 17ZA and 18ZZA, respectively, into the 1973 Act. These sections provide an exception to the three-year limitation periods contained in sections 17 and 18 of the 1973 Act, but only in the context of the asbestos-related conditions of pleural plaques, pleural thickening, and asbestosis (conditions specified as actionable harms in the Damages (Asbestos-related Conditions) (Scotland) Act 2009).
New section 17ZA applies to actions identified in subsection (1), that is, actions where the damages claimed consist solely of damages in respect of an injury that (a) is wholly or partly attributable to asbestos exposure and (b) has caused or is causing impairment of the person’s physical condition (i.e. a symptomatic condition). In actions of this type, the overall effect of new section 17ZA is that the action is not time-barred by a preceding asymptomatic condition; instead, a new three-year limitation period applies only to the symptomatic condition.
This is achieved by subsection (2), which provides that the asymptomatic conditions listed in subsection (3) are to be disregarded from the reference to “injuries in question” in section 17(2)(b)(i) of the 1973 Act. The effect is that for symptomatic conditions, the time-bar will not begin running until the person became (or it was reasonably practicable for the person to have become) aware of the fact mentioned in section 17(2)(b)(i) of the 1973 Act in relation to the symptomatic condition.
Subsections (4) and (5) of new section 17ZA make additional provision for cases where an injury has progressed from being in asymptomatic form to symptomatic form. The three-year time-bar will not start running until a registered medical practitioner has informed the injured person that the injury has progressed to a symptomatic condition. It does not matter whether the injured person was aware that they had the asymptomatic condition in the first place (subsection (6)).
Subsection (7) makes transitional arrangements. It provides that section 17ZA applies to any action (a) commenced on or after the date on which the new section comes into force, or (b) commenced before the date on which the new section comes into force provided the action has not been finally disposed of. The meaning of “finally disposed of” is set out in subsections (8) and (9), and includes an action that has been decided with no further avenue for appeal.
New section 18ZZA applies to actions for damages in cases of fatal asbestos exposure. Subsection (2) provides that in cases where the deceased would have been entitled to raise an action to which section 17 applies by virtue of new section 17ZA had they not died before it came into force, section 18(4) does not prevent the action being brought. Subsections (3) and (4) make further provisions about what actions new section 18ZZA applies to.
Appendix D of the Report provides worked case examples.
Amendments of Administration of Justice Act 1982