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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.image26.html |
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Advisory Group members
Laura Blane
Gordon Dalyell
Steve Love KC
Robert Milligan KC
Campbell Normand
Alan Rogerson
David Tait
Laura Thomson
The following individuals with expertise advised on Recommendation 12
Laura Blane
Phyllis Craig MBE
Euan Love
Fraser Simpson
Thompsons Solicitors Scotland
Digby Brown LLP Senior Counsel Senior Counsel
DAC Beachcroft Scotland
Aviva Insurance Ltd
Clyde & Co (Scotland) LLP
Advocate
in asbestos-related conditions additionally
Thompsons Solicitors Scotland
Action on Asbestos
Digby Brown LLP
Digby Brown LLP
We also received assistance from the Accountant of Court on aspects of Chapter 5: Management of damages awarded to children.
Examples: Asbestos-related disease
The following examples are intended to aid understanding of Recommendation 12 and of section 1 of the draft Damages (Scotland) Bill. For ease of illustration, unless otherwise stated, the assumptions in each case are that (i) the symptomatic condition arose after section 1 comes into force and (ii) the start of the 3-year limitation period was not delayed because it was not clear whether the liability requirements in section 17(2)(b)(ii) and (iii) were satisfied.
1. Person A is diagnosed with pleural plaques and raises no action. Eight years later, A is diagnosed with symptomatic asbestosis. A will be time-barred from raising an action for pleural plaques, but will have three years to raise an action for the symptomatic asbestosis; their failure to raise an action for pleural plaques is immaterial to the limitation period for the symptomatic condition.
2. Person B is diagnosed with asymptomatic asbestosis and raises no action. Four years later, B begins to experience symptoms caused by their asbestosis. B will have three years from the date on which they were informed, by a registered medical practitioner, that they had symptomatic asbestosis to raise an action; the time-bar for raising an action for symptomatic asbestosis only began running on the date that B was informed by a registered medical practitioner that their asbestosis had become symptomatic.
3. Person C is diagnosed with pleural plaques and raises no action. Five years later, C is diagnosed with asymptomatic pleural thickening and raises no action. 40 years later, C is diagnosed with mesothelioma. C will be time-barred from raising an action for pleural plaques or asymptomatic pleural thickening, but will have three years to raise an action for the mesothelioma; their failure to raise an action for either pleural plaques or asymptomatic pleural thickening is immaterial to the claim for mesothelioma.
4. Person D is diagnosed with symptomatic asbestosis and raises no action. Fifteen years later, D is diagnosed with asbestos-induced lung cancer. D will be time-barred from raising an action for lung cancer because of D’s failure to bring a claim, within the limitation period, for an earlier symptomatic asbestos-related condition (symptomatic asbestosis).
5. Person E is diagnosed with pleural plaques and raises no action. Six years later, E is diagnosed with asymptomatic pleural thickening. E will be time-barred from raising an action for asymptomatic pleural thickening because of E’s failure to bring a claim, within the limitation period, for an earlier asymptomatic asbestos-related condition (pleural plaques). However, should E’s pleural thickening develop into a symptomatic condition, E will have three years from the date on which they were informed, by a registered medical practitioner, that they had symptomatic pleural thickening to raise an action.
6. Person F is diagnosed with pleural plaques and raises no action. Sixteen years later, F is diagnosed with symptomatic asbestosis. Two years later, new sections 17ZA and 18ZZA
come into force. F immediately raises an action. F would have one year following commencement of the new sections (three years from the symptomatic condition) to raise an action; their failure to raise an action for pleural plaques is immaterial to the claim for symptomatic asbestosis (which still has one year left of the standard triennium to run when section 17ZA comes into force). However, new section 17ZA would not allow a claim in respect of F’s symptomatic asbestosis to be made if, following the pleural plaques being disregarded, the claim was still time-barred under section 17(2). That is, if more than three years have already passed since the symptomatic asbestosis diagnosis.
7. Person G is diagnosed with pleural plaques and raises no action. Thirteen years later, G is diagnosed with mesothelioma and dies the following year. Four years later, new sections 17ZA and 18ZZA come into force. G’s relatives will be time-barred from raising an action for the death; G’s failure to raise an action for the pleural plaques is immaterial, however, G would not have been able, if still alive on the day on which new section 17ZA came into force, to raise an action as more than three years had already passed since the mesothelioma diagnosis.
8. Person H is diagnosed with pleural plaques and raises no action. Sixteen years later, H is diagnosed with symptomatic asbestosis and dies the following year. One year later, new sections 17ZA and 18ZZA come into force. H’s relatives will have two years from commencement of the new sections (three years from the date of death) to raise an action; the 3-year limitation period within which H could bring a claim for the symptomatic asbestosis had not expired on the date that the new sections came into force; H’s failure to raise an action for the pleural plaques is immaterial.
Published on behalf of the Scottish Law Commission by APS Group Scotland
This Document is also available for download from:
ISBN 978-1-0686139-3-7
PPDAS1534310 (12/24)