James Mckenzie+agnes Kirby Mcmanus+david Livingston V. Carillon (singapore) Limited And Others+cape Building Products Limited+bp Chemicals Limited And Another
| Jurisdiction | Scotland |
| Judge | Lord Hardie |
| Neutral Citation | [2009] CSOH 100A |
| Date | 10 July 2009 |
| Docket Number | PD820/09 |
| Court | Court of Session |
| Published date | 10 July 2009 |
| OUTER HOUSE, COURT OF SESSION [2009] CSOH 100A | |
| PD820/09 PD852/09 PD855/09 | OPINION OF LORD HARDIE in the cause (A) JAMES McKENZIE Pursuer; against CARILLION (SINGAPORE) LIMITED & OTHERS Defenders: (B) AGNES KIRBY McMANUS Pursuer; against CAPE BUILDING PRODUCTS LIMITED Defenders; (C) DAVID LIVINGSTON Pursuer; against BP CHEMICALS LIMITED & ANOTHER Defenders; ____________ |
Pursuers: Pirie; Thompsons
Defenders: MacKenzie; Simpson & Marwick; HBM Sayers; Brodies LLP
10 July 2009
[1] In two of these actions the pursuer claims that he was exposed to asbestos when he worked for the defenders and in the third action (McManus) the pursuer alleges that she was exposed to asbestos dust which was brought home from his place of work with the defenders when the pursuer's now deceased father was in their employment. As a result of their exposure to asbestos each of the pursuers avers that he or she has developed bilateral pleural plaques and accordingly seeks damages from the respective defenders for his or her anxiety about the diagnosis and about the possibility that he or she might develop serious asbestos-related diseases.
[2] In each of these actions the defenders enrolled a motion to sist the action pending the outcome of the Judicial Review Hearing which was then underway before Lord Emslie and to which reference is made below. The motion in each case was opposed on behalf of the pursuer.
[3] In Rothwell v Chemical & Insulating Co Limited [2008] 1 AC 281 the House of Lords held that a person who had developed asymptomatic pleural plaques had not suffered loss and damage capable of giving rise to a cause of action in damages for negligence. In light of that decision it would appear that the pursuer in each of these actions does not have a relevant claim for damages at common law. The Scottish Parliament has enacted the Damages (Asbestos-related Conditions) (Scotland) Act 2009 ("the 2009 Act"). At the date on which I heard the opposed motion in each of these cases I was advised that the Act was not then in force but was scheduled to come into force on 17 June 2009. For the purposes of the motions before me the relevant provisions of the 2009 Act were sections 1, 3 and 4 which are inter alia in the following terms:
"1. Pleural plaques
(1) Asbestos-related pleural plaques are a personal injury which is not negligible.
(2) Accordingly, they constitute actionable harm for the purposes of an action of damages for personal injuries.
(3) Any rule of law, the effect of which is that asbestos-related pleural plaques do not constitute actionable harm ceases to apply to the extent it has that effect.
(4) ....
3. Limitation of Actions
(1) This section applies to an action of damages for personal injuries -
(a) in which the damages claimed consist of or include damages in respect of -
(i) asbestos related pleural plaques; or
(ii) .....; and
(b) which, in the case of an action commenced before the date this section comes into force, has not been determined by that date.
(2) For the purposes of sections 17 and 18 of the Prescription and Limitation (Scotland) Act 1973 (c.52) (limitation in respect of actions for personal injuries), the period beginning with 17 October 2007 and ending with the day on which this section comes into force is to be left out of account.
4. Commencement and retrospective effect
(1) This Act (other than this subsection and section 5) comes into force on such day as the Scottish Ministers may, by order made by statutory instrument, appoint.
(2) Sections 1 and 2 are to be treated for all purposes as having always had effect.
(3)...."
The effect of these provisions is that the pursuer in each of these actions will acquire a retrospective right to claim damages if the 2009 Act comes into force and remains in force. Moreover the pursuer in each case, having raised the action prior to the 2009 Act coming into force, will be able to take advantage of section 3 (2) by leaving out of account the period between 17 October 2007 and the date on which section 3 comes into force in calculating the period of limitation in respect of actions for personal injury.
[4] In moving the motion in each case counsel for the defenders submitted that the issue in each of these actions was identical to the issue in Rothwell v Chemical & Insulating Co Limited which had been applied by Lord Uist in Wright v Stoddard International Plc (No. 2) 2008 Rep LR 37. On 17 April 2009 the 2009 Act received Royal Assent and was due to commence on 17 June 2009. The revised financial memorandum relating to the 2009 Act disclosed that there was a build up of about 630 cases of asymptomatic pleural plaques because of the decision in Rothwell v Chemical & Insulating Co Limited. Approximately 250 of these cases are currently sisted and about 380 are with solicitors waiting for proceedings to be raised.
[5] On 21 April 2009 AXA General Insurance Limited and other insurers lodged a petition for Judicial Review seeking a declarator that the 2009 Act is outwith the legislative competence of the Scottish Parliament on the grounds of its incompatibility with Article 6 of the European Convention on Human Rights and Article 1 of the First Protocol thereto. In that process the petitioners sought a first order and also sought interim interdict against the Scottish Ministers to prevent them from bringing the Act into force before their challenge to its validity could be heard and determined. On 27 April 2009 Lord Glennie granted a first order but refused interim interdict. The first hearing in the petition for Judicial Review commenced on the day before I heard the motion in each of these cases and I was advised that the hearing in the Judicial...
To continue reading
Request your trial