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Dear Colleagues
PROPOSED AMENDMENTS TO SECTION 1(2) OF THE DAMAGES (SCOTLAND) ACT 1976
1. In a statement on 22 June 2006 on the Legislative Programme, the Minister for Parliamentary Business announced that the Scottish Executive would introduce a Damages Bill later this year to address a problem relating to relatives' claims for damages for non-patrimonial loss.
2. Currently, mesothelioma sufferers face the dilemma of either settling their damages claim while still alive or not settling their claim before death so that their executor and relatives can claim awards which total more than the award of damages the sufferer was entitled to . Some sufferers are foregoing the compensation which would comfort them before they die in order to help their families.
3. Ministers propose to remedy this situation by amending section 1(2) of the Damages (Scotland) Act 1976 so that relatives' claims for damages for non-patrimonial loss are not extinguished by the settlement of the person's own claim while still alive. This will enable damages for loss and suffering to be claimed by the immediate family in any case where a person has sustained a personal injury consisting of asbestos-related mesothelioma, which makes their date of death earlier than it would have been had they not sustained the injury, and they subsequently die of that injury. We also propose that Scottish Ministers should have the power to extend the new provision to apply to other diseases or personal injury if experience shows this to be necessary.
4. The purpose of the enclosed consultation paper is to invite your views on this proposal. The paper sets out in detail the nature of asbestos-related mesothelioma, the existing law, the problem with the existing law and the proposed solution. We invite your views by 18 August 2006 on the questions in the enclosed consultation paper and on the accompanying partial Regulatory Impact Assessment.
5. In reaching their decision to propose amending legislation to the Scottish Parliament, Ministers took account of earlier work done by the Justice 2 Committee of the Parliament on the handling of personal injury claims by mesothelioma sufferers; and of the recent public debate on the issues prompted by Des McNulty MSP and fellow members.
6. The consultation period for these proposals is shorter than the Executive normally offers; but we aim nonetheless to ensure that the issues are properly aired and that all the relevant stakeholders have a chance to participate. Representatives of mesothelioma sufferers and of trades unions and agents acting for the majority of mesothelioma claimants have already made their views clear - in their submissions to the Parliament and in correspondence and meetings with Ministers and officials. We have had discussions with a number of those campaigning for a change in the law and will be happy to engage further with them. It is also important to us to hear the views of other stakeholders including representatives of employers and the insurance industry: we will be glad to have their responses to this consultation and also to arrange meetings during the consultation period. In this way we intend to ensure that all those with an interest have a good opportunity to register their views by 18 August.
7. This consultation deals with an issue which bears directly on the choices that claimants make during the last months of their lives. Ministers believe that a change to the law should be proposed to Parliament at the earliest possible opportunity consistent with satisfactory prior consultation so that mesothelioma sufferers and their families can be relieved of the added worry and distress posed by the current rules. For this reason, as well as in light of the considerable public attention which this issue has already attracted, Ministers feel it is right to ask for comments within a relatively short timeframe.
8. The three key questions posed by this consultation are set out in Annex A which provides details on responding to this consultation. Please ensure that Annex B, the Respondent Information Form, is completed and returned along with your response. Further information on the Scottish Executive consultation process is contained in Annex C. Consultees are welcome to comment on aspects of the proposals other than those covered in the questions but need not feel obliged to do so.
House of Lords Judgment ("Barker")
9. Finally, you may be aware that the UK Government announced on 20 June 2006 its intention to legislate to reverse the effect of the House of Lords ruling of 3 May 2006 in the case of Barker v Corus. The Government has said that it intends to do this as quickly as possible by introducing an amendment to the Compensation Bill. The "Barker" judgment ruled that mesothelioma damages should be apportioned in cases involving several former employers even when some of those employers were insolvent or untraceable. The Minister for Parliamentary Business said in her statement that the Scottish Executive would also legislate to overturn this ruling, either through its own Damages Bill or through the Compensation Bill in the UK Parliament by Legislative Consent Motion ( LCM). On 29 June 2006 the Scottish Parliament agreed an LCM so that the proposed amendment to the Compensation Bill should also amend the law of damages in Scotland to provide for joint and several liability in mesothelioma cases. The following link will take you to the Official Report of the debate on the LCM:
http://www.scottish.parliament.uk/business/officialReports/meetingsParliament/or-06/sor0629-02.htm#Col27047
Thank you for taking the time to respond to this consultation.
Yours sincerely
Lorna Brownlee
ANNEX A: AMENDMENTS TO SECTION 1(2) OF THE DAMAGES (SCOTLAND) ACT 1976
QUESTIONS
To assist in taking forward this proposal, we would like to hear your views on the following questions:
1. Do you agree that the existing law, which prevents the immediate family of mesothelioma sufferers from claiming damages for their non-patrimonial loss on the death of the sufferer if that person has already recovered damages or settled their claim during his or her lifetime, causes problems?
If you do not agree, it would be helpful if you would say why.
2. Do you agree that these problems should be remedied by disapplying section 1(2) of the 1976 Act so as to enable the immediate family of mesothelioma sufferers to claim damages for non-patrimonial loss, even although the deceased had already recovered damages or obtained a settlement in his or her lifetime?
If not, what do you see as an alternative solution?
3. Do you agree that the Bill should be confined to cases where the sufferer has contracted asbestos related mesothelioma with Scottish Ministers having the power to extend the new provision to apply to other diseases or other kinds of personal injury if experience shows this to be necessary?
If not, why do you think it should not be mesothelioma specific?
Responding to this consultation paper
We are inviting written responses to this consultation paper by 18 August 2006. Please send your response to:
Anne.Hampson@scotland.gsi.gov.uk or
Anne Hampson, The Scottish Executive Justice Department, Civil Law Division, 2 West Rear, St Andrew's House , Regent Road, Edinburgh, EH1 3DG
If you have any queries contact Anne Hampson on 0131 244 2442.
This consultation, and all other Scottish Executive consultation exercises, can be viewed online on the consultation web pages of the Scottish Executive website at http://www.scotland.gov.uk/consultations. You can telephone Freephone 0800 77 1234 to find out where your nearest public internet access point is.
The Scottish Executive now has an email alert system for consultations ( SEconsult: http://www.scotland.gov.uk/consultations/seconsult.aspx). This system allows stakeholder individuals and organisations to register and receive a weekly email containing details of all new consultations (including web links). SEconsult complements, but in no way replaces SE distribution lists, and is designed to allow stakeholders to keep up to date with all SE consultation activity, and therefore be alerted at the earliest opportunity to those of most interest. We would encourage you to register.
Handling your response
We need to know how you wish your response to be handled and, in particular, whether you are happy for your response to be made public. Please complete and return the Respondent Information Form at Annex B of this letter as this will ensure that we treat your response appropriately. If you ask for your response not to be published we will regard it as confidential, and we will treat it accordingly.
All respondents should be aware that the Scottish Executive are subject to the provisions of the Freedom of Information (Scotland) Act 2002 and would therefore have to consider any request made to it under the Act for information relating to responses made to this consultation exercise.
Next steps in the process
Where respondents have given permission for their response to be made public (see the attached Respondent Information Form), these will be made available to the public in the Scottish Executive Library by 16 September. We will check all responses where agreement to publish has been given for any potentially defamatory material before logging them in the library or placing them on the website. You can make arrangements to view responses by contacting the SE Library on 0131 244 4565. Responses can be copied and sent to you, but a charge may be made for this service.
What happens next?
Following the closing date, all responses will be analysed and considered prior to introducing the Damages Bill into the Scottish Parliament.
Comments and complaints
If you have any comments about how this consultation exercise has been conducted, please send them to Anne Hampson whose contact details are above.
ANNEX B: RESPONDENT INFORMATION FORM:
AMENDMENTS TO SECTION 1(2) OF THE DAMAGES (SCOTLAND) ACT 1976
ANNEX C: THE SCOTTISH EXECUTIVE CONSULTATION PROCESS
Consultation is an essential and important aspect of Scottish Executive working methods. Given the wide-ranging areas of work of the Scottish Executive, there are many varied types of consultation. However, in general, Scottish Executive consultation exercises aim to provide opportunities for all those who wish to express their opinions on a proposed area of work to do so in ways which will inform and enhance that work.
The Scottish Executive encourages consultation that is thorough, effective and appropriate to the issue under consideration and the nature of the target audience. Consultation exercises take account of a wide range of factors, and no two exercises are likely to be the same.
Typically Scottish Executive consultations involve a written paper inviting answers to specific questions or more general views about the material presented. Written papers are distributed to organisations and individuals with an interest in the issue, and they are also placed on the Scottish Executive web site enabling a wider audience to access the paper and submit their responses 1. Consultation exercises may also involve seeking views in a number of different ways, such as through public meetings, focus groups or questionnaire exercises. Copies of all the written responses received to a consultation exercise (except those where the individual or organisation requested confidentiality) are placed in the Scottish Executive library at Saughton House, Edinburgh (K Spur, Saughton House, Broomhouse Drive, Edinburgh, EH11 3XD, telephone 0131 244 4565).
All Scottish Executive consultation papers and related publications ( e.g., analysis of response reports) can be accessed at:
Scottish Executive consultations ( http://www.scotland.gov.uk/consultations )
The views and suggestions detailed in consultation responses are analysed and used as part of the decision making process, along with a range of other available information and evidence. Depending on the nature of the consultation exercise the responses received may:
- indicate the need for policy development or review
- inform the development of a particular policy
- help decisions to be made between alternative policy proposals
- be used to finalise legislation before it is implemented
Final decisions on the issues under consideration will also take account of a range of other factors, including other available information and research evidence.
While details of particular circumstances described in a response to a consultation exercise may usefully inform the policy process, consultation exercises cannot address individual concerns and comments, which should be directed to the relevant public body.
1 http://www.scotland.gov.uk/consultations
RECIPIENT LIST
Abbey
Advocates Personal Injury Law Group
Aegon UK
Aerospace Industry
Amicus
Anderson Strathern
Association of British Insurers
Aviva Plc
Bonnar and Co
Chartered Insurance Institute
Chemicals Industry Association
Clerk of Justice 1 Committee
Clerk of Justice 2 Committee
Clydeside Action on Asbestos
Clydeside Asbestos Group
Citizens Advice Scotland
Commission for Racial Equality
Confederation of British Industry ( CBI) Scotland
Confederation of Paper Industries
Confederation of Shipbuilding and Engineering Union
Convention of Scottish Local Authorities ( COSLA)
Des McNulty MSP
Disability Rights Commission
Equal Opportunities Commission
esure
Federation of Small Businesses
GMB
Government Departments
Institute of Directors
Law Commission
Law Society of Scotland
Legal Deposit Libraries
Legal Libraries - Scotland
Lord Advocate's Department
Manufacturing Industry
Norwich Union
Scottish Chambers of Commerce
Scottish Consumer Council
Scottish Council for Development and Industry
Scottish Law Commission
Scottish Local Authorities (Chief Executives)
Scottish Engineering
Scottish Financial Enterprise
Scottish MEPs
Scottish Mainstream Political Parties
Scottish Textiles Manufacturers Association
Scottish Trade Union Congress
Society of Local Authority Lawyers and Administrators in Scotland ( SOLAR)
Standard Life
TGU
Thomsons
UCATT
Women's National Commission
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