Family of shipbuilder who died from asbestos-related cancer sue for damages

A judge in the Court of Session granted the pursuers’ motion to allow issues after rejecting the defenders’ claim that the right to a jury trial was precluded by section 22(4) of the Prescription and Limitations (Scotland) Act 1973.

‘Mesothelioma’

Lord Burns heard that Lorna McLean, widow of the late Maxwell McLean, and their two sons, his two sisters and a grandchild, raised an action in June 2018 against Fairfield Shipbuilding Ltd following the death of Mr Maxwell, who died in July 2017 at the age of 71.

The first pursuers, as executors of the deceased, advanced a claim for the deceased’s pain and suffering and loss of life expectancy. 

They also claimed under section 8 of the Administration of Justice Act 1982 for the care provided by his family during his illness and other expenses. 

The second pursuer, the deceased’s widow, claimed loss of support and personal services, while the remaining pursuers advanced claims under section 4(3)(b) of the Damages (Scotland) Act 2011.

The pursuers averred that the deceased was employed by the defenders from about 1962 to 1972 and that he was exposed to asbestos dust in the course of that employment, as a result of which he developed pleural plaques and plural mesothelioma. 

In 2015 he attended his general practitioner and, having undergone certain procedures, was informed of a diagnosis of mesothelioma on 27 March 2017. 

He died about four months later, but raised no action in respect of his condition against either defender prior to his death.

However, the actions raised by the pursuers in their various capacities were not time barred by the provisions of the 1973 Act. 

‘Right to a jury trial’

A motion was lodged on behalf of the pursuers inter alia to allow issues, but was opposed by the defenders. 

It was argued by Mr Ross on behalf of the second defenders, whose submissions were adopted by Ms Bennett for the first defenders, that the right to a jury trial was precluded by section 22(4) of the 1973 Act.

In terms of section 17 of the 1973 Act, which deals with the actions of damages for personal injuries brought by the injured person, the pursuer is required to bring the action within three years of the date on which the injury was sustained or the date on which he became, or on which it would have been reasonably practicable for him to have become, aware of the three “statutory facts” set out in section 17(2)(b).

In terms of section 18, which applies where damages are claimed following the death of the injured person, the action must be raised within three years either of the deceased’s death or of the date on which the pursuer in the action became, or on which it would have been reasonably practicable for him to have become, aware that the deceased’s injuries were attributable to an act or omission by the defender.

Although Mr Ross accepted that the actions raised by the pursuers were not time barred he submitted that their right to a jury trial is excluded by section 22(4) of the 1973 Act, because the action was one which would “not be entertained but for the said subsection (2)(b)”. 

The pursuers derived their rights of action from the deceased and the three-year period from the date that his injuries were sustained had expired, meaning he could not have relied on section 17(2)(a) and would have had to rely on section 17(2)(b). 

‘In the shoes of the deceased’

Accordingly, section 22(4) applied to exclude the pursuers’ right to a jury trial. 

He referred to the case of Mitchell v Advocate General for Scotland [2015] Rep LR 51 in which Lord Tyre accepted an argument advanced by the pursuers that, in the context of a section 18 claim, the words “said subsection 2(b)” in section 22(4) fell to be construed as a reference to section 18(2)(b). 

Since the action had been raised with the three year period, it was not one which “would not have been entertained but for the said subsection 2(b)”, but in the present case, the executor sued and were “in the shoes of” the deceased. 

Since the deceased would have had to rely on section 17(2)(b), it would be “absurd” if the executors were in any better position.

It was only because of the terms of section 17(2)(b) that the pursuers were able to proceed, meaning there was a link between the claims of the pursuers and that subsection. 

Section 22(4) should be read, in the context of the present case, as a reference to section 17(2)(b), it was argued.

Mr Mitchell for the pursuers pointed out that no issue of time bar was raised in the proceedings or in the course of argument. 

In any event, it was submitted that Lord Tyre was correct in his interpretation of section 22(4): the reference to the “said subsection 2(b)” is to whichever subsection 2(b) is applicable. 

Motion granted

The judge agreed with Lord Tyre’s conclusion. In particular, he considered that section 22(4) fell to be read as a reference to whichever subsection 2(b) was applicable.

In a written opinion, Lord Burns said: “In the present case, the position of the pursuers as executors and those who sue as relatives of the deceased is different. The right of action of the first pursuers as executors only arose on the death of the deceased at which time his claims transmitted to them. 

“Their right exists whether or not this deceased raised an action during his lifetime (see section 10(1)(a) of the Damages (Scotland) Act 2011). They are therefore in a different position to the deceased himself. 

“Their position is also different in that their right to claim does not expire at the same time as that of the deceased himself since the executors are given three years from the date of his death. The pursuers suing as relatives have separate claims to those advanced by the executors and their right also arose upon the death of the deceased.

“I do not accept Mr Ross’ submission that the claims are derived from the deceased and that, because he would have had to rely on section 17(2)(b), the claims of the pursuers stem from that provision. In each case, the pursuers’ rights of action are derived from section 18(2)(b) since they sue within three years of the date of the deceased. None of the pursuers require to rely on section 17(2)(b).

“The provisions under discussion here preclude a jury trial where a pursuer raises an action and requires to rely on section 17(2)(b) or 18(2)(b)… Had this case involved questions as to when the pursuers knew or ought to have known about ‘the statutory facts’, it can be readily understood that such matters would not have been appropriate for jury trial. However, as Mr Marshall argued, no such questions are raised in this case.”