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Court of Session refuses to exercise discretion in time barred mesothelioma claim

  • 02 March 2020 02 March 2020
  • UK & Europe

  • Insurance & Reinsurance

Court of Session refuses to exercise discretion in time barred mesothelioma claim

Stephen Quinn & ORS/ Francis Quinn (D) v. Wrights Insulation LTD [2020] CSOH 21

The Facts

This action was brought by the family of the late Francis Quinn ("the deceased"), who developed pleural plaques in around 1993 and later died of mesothelioma in 2017.

The deceased's family ("the pursuers") sued his former employer, the defenders, in respect of asbestos exposure which it was accepted caused his mesothelioma. In turn, the pursuers accepted that their claims were time barred, under Sections 17 and 18 of the Prescription and Limitation (Scotland) Act 1973, due to the deceased's earlier diagnosis of pleural plaques, which he had claimed for, unsuccessfully, in 2012.

The pursuers argued that the court should exercise its discretion under Section 19 of his 1973 Act, to allow the claims to proceed. The submission on behalf of the pursuers was to the effect that the defender's loss of a defence to the action did not represent prejudice. It was argued that the fact mesothelioma is a far more serious condition than the deceased's original diagnosis of pleural plaques was a relevant factor in favour of the pursuers.

For the defenders it was submitted that the primary aim in legislating in respect of time bar was to prevent stale claims. Whilst the deterioration of evidence was a relevant factor, it was not the only factor and, more generally, employers and insurers are entitled to plan their affairs on the basis that actions for any wrongs will be brought within a fixed and known period. It was for the pursuers to explain why the time bar was missed and why it was fair to allow the claims to proceed under the court's discretion. In the present case, no explanation for the lateness was provided. The defenders were prejudiced as they had lost the chance to compromise the earlier pleural plaques claim on a full and final basis. If they had done so, the family would not have been entitled to return to court.

If the original pleural plaques claim had been settled on a full and final basis it would have been valued at around £13,500. The sums concluded for by the family in the present action totalled £810,000.

Defender's counsel also noted that the deceased and his family had received statutory compensation amounting to around £21,500 in respect of the deceased's asbestos conditions.

The Decision

Lady Carmichael found for the defenders. She held that it was for the pursuers to satisfy the court that it was equitable that the action should proceed. That explanation "must be sufficiently cogent to merit depriving the defender of a complete defence". In this case, no explanation had been given by the pursuers as to the failure to bring the claim timeously. Absence of prejudice to the defenders is factor which favours the pursuers, but is not conclusive:

"The policy underlying the time bar provisions is not just to avoid the prejudice involved in defending claims where the evidence is stale or may have diminished in quantity or quality… there is also the interest that insurers, public institutions and businesses have in knowing that they have no liabilities beyond a particular period… Parliament has also recognised, however, that there will be circumstances in which it will be equitable for the court to allow an action to proceed outwith that limitation period, and made provision for that in Section 19A. Defenders and their insurers have notice of that provision, and have the opportunity to provide for such contingencies as they see fit in light of their understanding of the law, informed by the developing jurisprudence."

The fact that the claim was for mesothelioma was not a relevant consideration in and of itself. The pursuers were prejudiced by the loss of a high value action. However, should the discretion be exercised, that would result in the defenders being prejudiced by the loss of their complete defence to a high value action.

Further, as regards any perceived injustice, Parliament has not legislated to alter the limitation provisions in respect of mesothelioma as it has in relation to claims for historic child abuse.

The statutory payments made to the deceased and his family had no particular relevance in deciding where the equities should lie.

The Implications

Scots' Law is clear on the single actionability rule in the context of the law of limitation. This decision reiterates the law in that regard and confirms that the nature of the deceased's condition did not provide a reason to depart from the well-established rule.

End

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