19 January 2016
Scope of award for provisional damages in pleural plaques case considered.
Fraser v Kitsons Insulation Contractors Limited [2015] CSOH 135
In the case of Fraser v Kitsons Insulation Contractors Limited [2015] CSOH 135, the Pursuer raised an action against his former employer seeking damages for the development of asbestos related pleural plaques as a result of his exposure to asbestos during the course of his employment.
The Pursuer averred that he was at an increased risk of developing a subsequent asbestos related condition. He sought provisional damages and to reserve the right to apply to the court for a further award of damages in terms of Section 12 of the Administration of Justice Act 1982.
Interestingly, although the Pursuer made averments to the effect that he was at risk of developing further asbestos related diseases such as asbestosis or diffuse pleural thickening, his own medical evidence did not support this and stated that he was at a three percent lifetime risk of developing mesothelioma or bronchial carcinoma.
A Minute of Tender for provisional damages was lodged and was accepted. The Pursuer then sought to enrol a motion for decree in terms of the Minute of Tender and their acceptance. The motion was opposed by the Defenders on the ground that it should be made clear that the Pursuer was only entitled to return for further damages in the event that he developed mesothelioma or asbestos related lung cancer, those being the only conditions, as stated in his own expert evidence, to which he was at risk of developing.
Lord Doherty stated that the court was not entitled to proceed on the basis of the Pursuer’s averments, which were denied. The appropriate course of action for the court to take was to proceed on the basis that the Pursuer had pleural plaques, that there were accepted risks that he might develop mesothelioma or bronchial carcinoma and that the agreed sum for provisional damages had been arrived at on the assumption that he would not develop those diseases. It was therefore appropriate, in the circumstances, that the court should order that the Pursuer be entitled to apply for further damages in the event that he developed either condition.
The circumstances in this case are almost identical to that of Talbot v Babcock International Limited [2014] CSOH 160, however, Lord Doherty respectfully disagreed with the analysis of the Lord Ordinary in that case where it was stated that the court was only required to know that the parties had agreed that an award of provisional damages should be made, and it was unnecessary for it to be privy to the risk of development of a serious condition or to the risk of serious deterioration in the Pursuer’s condition which underpinned the award.
Following the decision in the Fraser case, in pleural plaques claims where actions are settling by way of provisional damages, it must be made absolutely clear in the Joint Minute the serious disease or deterioration which would constitute a relevant risk for further application for damages and a Minute for Tender should, likewise, also contain that information.
Suzanne Rosenshine, Paralegal sro@bto.co.uk T: 0141 221 8012