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

Part of the debate – in the Scottish Parliament at 2:49 pm on 21st March 2007.

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Photo of Margaret Mitchell Margaret Mitchell Conservative 2:49 pm, 21st March 2007

It is a pleasure to speak in support of this short and unusual bill. It is a measure of the unanimity of the support for the bill that there were no stage 3 amendments.

That is in sharp contrast to my first experience of legislation in 2003, when the new Justice 1 Committee dealt with the Criminal Procedure (Amendment) (Scotland) Bill, which involved complicated reforms of High Court proceedings; amended the Criminal Procedure (Scotland) Act 1995; introduced trial in the absence of the accused; increased sheriffs' sentencing powers; abolished the 110-day rule; addressed bail issues; focused on preliminary hearings; and made other procedural alterations. Suffice it to say that the stage 3 amendments that were lodged then were numerous and varied, and were the subject of robust debate.

Today the situation is very different, as the summary of evidence that was received by the Justice 1 Committee and the Scottish Executive testifies. Interest groups such as Clydeside Action on Asbestos and Asbestos Action (Tayside), West Dunbartonshire Council, Stirling Council, North Lanarkshire Council, Perth and Kinross Council, the Scottish Trades Union Congress, insurers and consumers, as well as various legal and academic respondents, were all in agreement that the existing law is problematic for mesothelioma sufferers and their relatives.

Although 12 of the 15 respondents stated that they were in favour of disapplying section 1(2) of the Damages (Scotland) Act 1976—the provision whereby the relatives' claim is extinguished if the sufferer settles their claim before death—as a means of remedying the problem, others, notably the Association of British Insurers and the Forum of Scottish Claims Managers, initially argued that the problem could be solved

"by encouraging claimants to initiate their claim, make an application for interim damages, and then sist the claim until after death."

Some respondents, including the STUC, considered that there was justification for including other medical conditions in the bill. Others recognised that, perversely, improvements to court timetables and the more streamlined claims procedure following the Coulsfield report had the unintentional effect of adding to the anguish of sufferers, who, once diagnosed, have an average life expectancy of 14 months.

Despite the initial difference of opinion about how best to solve the problem, there have been none of the entrenched standpoints that are usually adopted when we debate the detail of a bill, once the general principles have been agreed. Instead, all the parties involved have been willing to compromise, in recognition of the uniqueness of the features that relate to mesothelioma: namely, that it is almost invariably caused by exposure to a particular substance—asbestos; that, as medical science currently stands, there is no cure; that life expectancy is short at, on average, 14 months; and that, under the Fairchild exception, sufferers do not need to meet the normal test of causation in civil actions. For those reasons, the bill that is before us today is mesothelioma specific. It is designed to remove the dilemma that sufferers face in relation to relatives' compensation claims, which in approximately 80 per cent of cases has resulted in the sufferer forgoing their claim to ensure that their relatives are not disadvantaged.

No other class of personal injury shares the characteristics of mesothelioma, which means that our passing the bill does not compromise the general principle that relatives' rights are extinguished if the deceased settles their claim in full prior to death.

This is a bill of which the Scottish Parliament can be proud. It represents devolution as it was intended to work. As the minister confirmed, there is no doubt that the Parliament would not be in a position to pass the bill today were it not for the campaigners, for Thompsons Solicitors, who acted on behalf of the sufferers, and for Des McNulty. It is to be hoped that, when the Parliament convenes in the new session, it will give careful consideration to alternative ways of tackling the problems of the day, rather than rushing to legislate, so that precious legislative time can be given over to prioritising bills such as this, which can and, I hope sincerely, will make a difference to mesothelioma sufferers and their relatives.