Rights of Relatives to Damages (Mesothelioma) (Scotland) Bill: Stage 3

Part of the debate – in the Scottish Parliament at 2:37 pm on 21st March 2007.

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Photo of Johann Lamont Johann Lamont Labour 2:37 pm, 21st March 2007

The Rights of Relatives to Damages (Mesothelioma) (Scotland) Bill is a short but significant piece of legislation that will help a small group of people who find themselves in tragic circumstances.

At present, under section 1(2) of the Damages (Scotland) Act 1976, claims by the immediate family of someone who dies as a result of a personal injury are extinguished if the injured person settles their own claim before they die. The purpose of the bill is to address, urgently and exclusively, a horrible dilemma that the law of damages presents to mesothelioma sufferers, who face certain but not immediate death. Most sufferers go without the comforts that compensation might provide before they die so that their families can benefit from larger awards after their death. That is an appalling predicament for sufferers and their families to face at what is already a tremendously difficult and harrowing time. The bill will remove the dilemma by disapplying section 1(2) of the Damages (Scotland) Act 1976 so as to allow the immediate family of a mesothelioma sufferer to claim damages for non-patrimonial loss under section 1(4) of the act after the sufferer dies, irrespective of whether the deceased has already recovered damages or obtained a settlement.

I want to express my thanks to the Justice 1 Committee for considering the bill so diligently and to its clerking team for ensuring that events have progressed smoothly. Although this small bill was welcomed by all parties, it was nonetheless robustly scrutinised and improved by the committee. I also record my sincere thanks to Des McNulty MSP, who generously allowed us to draw from his work in preparing our consultation, and to other MSPs who have long taken an interest in this important issue. I also thank Thompsons Solicitors for providing us with statistics, and the asbestos groups, the various trade unions and everyone else who has enabled the Executive to introduce this unique bill. We welcome in particular the tireless energy and commitment of the campaigning groups in allowing us to reach this point. Without their hard work and dedication, we would not be debating the bill at all.

I also thank the officials in the Executive's bill team for the good work that they have done in response to the committee's requests and for being extremely helpful to me, as someone who became involved in the bill's progress at a late stage.

During stage 2 consideration of the bill, I was pleased to fulfil the undertaking that was given to the committee at stage 1 that the bill would be amended so that its provisions would apply to any case in which the sufferer recovered damages or obtained a full settlement on or after 20 December 2006. At stage 2, the committee unanimously agreed to the amendments that will allow that to happen. I record my thanks to the committee for exploring the issue of retrospection so thoroughly with witnesses at stage 1 and to the witnesses for their consensus on the matter.

In practical terms, that means that from 20 December last year sufferers have been able to hold someone to account before they die without worrying about disadvantaging their families. As a result of being able to settle their claims or seek accelerated proof dates, some sufferers will be able to get, and to benefit from, their own full damages before they die. In addition, sufferers who had put off starting proceedings to avoid disadvantaging their families have now begun proceedings. There has already been an increase in the number of claims raised by people with mesothelioma.

In the financial memorandum to the bill, we said that, in future, not one but two actions might be raised because if the victim can settle before death, the relatives will be able to raise their own action. At present, if the victim does not settle, a single claim is made by the executor and relatives.

The issue of initiating a single action for the mesothelioma sufferer and their immediate family was explored in detail by the committee in evidence from stakeholders. I then wrote to the committee to confirm that primary legislation would not be required and that it was a matter for the rules of court. The stage 1 report on the bill recommended that the Executive should liaise with the Court of Session, the insurance industry and solicitors to establish whether the raising of a single action in mesothelioma cases would be feasible and whether it would, indeed, be beneficial to all parties. We accepted the recommendation and the issue has been investigated further. Stakeholders agree that the raising of a single action would be beneficial for claimants, as it would save time and expense.

Personal injury claims in the Court of Session are dealt with under the Coulsfield procedures, which were introduced to bring about speedier settlement of claims. A personal injuries user group chaired by Lady Paton was established by the Lord President to monitor the effectiveness of the new procedures and to recommend continuing improvements to the procedure. I am pleased to inform the Parliament that the user group has considered the use of single actions in mesothelioma cases and has recommended that changes be made to the rules of the Court of Session to enable both claims to be dealt with in the same action. The recommendations await formal consideration by the court once the bill is passed, with a view to early implementation.

Looking more widely, the United Kingdom Government believes that, whenever possible, mesothelioma sufferers should receive compensation in life so that they themselves can benefit from it while knowing that their families will be secure in the future. That is completely in line with our approach, and I welcome the proposals to provide faster compensation to all people diagnosed with mesothelioma that were announced on 13 March by John Hutton, the Secretary of State for Work and Pensions. Once passed, that piece of reserved legislation will mean that every sufferer should receive a state payment within six weeks of making a claim, which will be recovered if a subsequent civil compensation claim is successful. Scottish sufferers will benefit from those proposals as well as from the provisions in the bill.

I am required to signify Crown consent. For the purposes of rule 9.11 of the standing orders, I wish to advise the Parliament that Her Majesty, having been informed of the purport of the Rights of Relatives to Damages (Mesothelioma) (Scotland) Bill, has consented to place her prerogative and interests, in so far as they are affected by the bill, at the disposal of the Parliament for the purposes of the bill.

I feel privileged to have been involved in progressing the bill. I pay tribute to my colleague Hugh Henry, the former Deputy Minister for Justice, who was instrumental in securing a legislative slot for this small but crucial bill. As I have said before, I have been struck by the fact that the issue goes far beyond financial considerations such as damages. It is also about sufferers wanting—and deserving—acknowledgement of what has caused their suffering. In addition to being denied the chance to obtain funds that would have eased their suffering at the end of their lives, sufferers have been denied the chance to hear someone take responsibility and admit that what happened was their fault.

I trust that all members will again support this short but vital piece of legislation, which will bring real benefit to mesothelioma sufferers and their families.

I move,

That the Parliament agrees that the Rights of Relatives to Damages (Mesothelioma) (Scotland) Bill be passed.