Mesothelioma victim’s relatives’ claim for damages ‘not excluded from jury trial’, judge rules

The pursuers Andrew Mitchell and others, relatives of the late Walter Mitchell who died in June 2013 as a consequence of mesothelioma, are seeking damages from the defenders, the Advocate General for Scotland and another under section 4(3) of the Damages (Scotland) Act 2011 in respect of the death of the deceased, who himself had made and settled a claim for damages against the defenders during his lifetime.

A motion by the pursuers to allow issues was opposed by the defenders on the ground that jury trial is precluded by section 22(4) of the Prescription and Limitation (Scotland) Act 1973, but Lord Tyre (pictured) ruled in the pursuers’ favour.

According to the pursuers’ averments, the deceased was employed by the defenders and their predecessors for many years in the railway industry, during which time he worked with asbestos and inhaled asbestos dust. His employment ceased in about 1982, but from about May 2010 he suffered from increasing chest pains and breathlessness and was diagnosed as suffering from mesothelioma in January 2012.

In terms of section 17(2) of the 1973 Act, the action must be commenced within a period of three years after: (a) the date on which the injury was sustained, or, where the defender’s act or omission was a continuing one, the date on which the act or omission ceased, whichever is the later; or (b) the date on which the pursuer became, or on which it would have been reasonably practicable for him to have become, aware of the three “statutory facts” set out in subsection 17(2)(b).

Section 18 of the 1973 Act applies where damages are claimed following the death of the person who sustained injury. In terms of section 18(2), the action must be commenced within a period of three years after: (a) the date of the deceased’s death; or (b) 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. However, section 18(4) excludes a claim under section 18 where an action for damages has not been brought within the period specified in section 17(2) by the injured person himself, who subsequently dies.

The pursuers, whose action was commenced on 1 August 2014, submitted that the deceased was not aware, and could not reasonably have become aware, of the statutory facts prior to the diagnosis of mesothelioma in January 2012.

Approaching the matter on that basis, any action for damages that the deceased might himself have raised would not have commenced within three years after the date when injury was sustained – by January 2007 at the latest – but would have been prevented from being time barred at the time of his death by section 17(2)(b). Accordingly, section 18(4) did not bar the pursuers’ action, which was raised within the three-year period after the date of the deceased’s death, ie within the period specified in section 18(2)(a).

The statutory provision which lay at the heart of the dispute was section 22(4), which states: “An action which would not be entertained but for the said subsection (2)(b) shall not be tried by jury.”

On behalf of the pursuers it was submitted that section 22(4) did not apply to this case. In the context of a section 18 claim, the words “the said subsection (2)(b)” in section 22(4) fell to be construed as references to section 18(2)(b). The present action was a section 18 claim which had been raised within the three-year period specified in section 18(2)(a). It was not therefore one “which would not be entertained but for the said subsection (2)(b)”.

In any event, section 22(4) should be construed purposively. The solicitor advocate for the pursuers sought to demonstrate that the purpose of section 22(4) was to exclude from jury trial cases in which time-bar remained a live issue at the time of hearing of evidence. Accordingly, as no question arose of the present claims being time‑barred, the subsection did not apply, it was argued.

The defenders did not contend that the pursuers’ claim was time‑barred, but it was submitted that if a claim depended in any way upon the application of either section 17(2)(b) or section 18(2)(b), it was excluded from jury trial by section 22(4). A claim by the deceased himself under section 17 would have been excluded from jury trial. Therefore, it would be curious if a claim by his relatives under section 18 was not, it was argued.

The judge ruled that the primary argument for the pursuers was to be preferred.

Delivering his opinion, Lord Tyre said: “It seems to me that the most natural construction of section 22 is that the words “the said subsection (2)(b)”, which appear in both subsections (3) and (4), refer to section 17(2)(b) in a case brought by an injured person under section 17 and to section 18(2)(b) in a case brought by the relatives of a deceased person under section 18.

“If the intention of Parliament had been to exclude from jury trial a claim under section 18 which did not depend upon the application of section 18(2)(b), but where a claim by the deceased would have required to rely upon section 17(2)(b), one would have expected subsection (4) to make this clear, for example by referring to “the said subsections (2)(b)” in the plural.”

He added that he would not have been inclined to accept the pursuers’ alternative argument based upon a purposive construction of subsection (4).

Lord Tyre said: “In my view the correct approach is to read the words used by Parliament, in the context of section 22 and the remainder of Part II of the 1973 Act, and not to speculate as to the intention that may have lain behind them. It was not contended on behalf of the defenders that there was any feature of mesothelioma cases generally that rendered them unsuitable for jury trial. I shall grant the pursuers’ motion and allow issues.”