Jillian Mackenzie, an Associate in Digby Brown LLP’s Industrial Disease Department, has recently published an article with Lexology, detailing how Scotland’s highest civil court approved an ‘innovative approach’ to resolve a Scottish mesothelioma claim, involving challenging issues on quantum.[i]
Digby Brown was instructed to bring a claim against a public sector defender (defendant), who employed the pursuer (claimant) between 1982 and 1992, a period during which he was exposed to asbestos. The pursuer was diagnosed with mesothelioma in 2019, aged 48.
Although the pursuer subsequently moved to live in England, the claim was pursued in the Scottish courts, as the negligent exposure took place in Scotland. This meant that any award of damages for future loss would be greater than an equivalent claim in the jurisdiction of England & Wales, given that the personal injury discount rate was lower [(-)0.75% compared to (-)0.25%].
The case was lodged in court a matter of days before the UK Government announced the first COVID-19 lockdown.
Due to the urgent and sensitive needs of the pursuer, the Court of Session agreed to prioritise the case, ultimately allowing mesothelioma and lung cancer cases to be the first class of cases authorised for service. An accelerated timetable leading to the final hearing was accommodated.
In the absence of a substantive defence, a motion for summary decree (summary judgment) was allowed and this forced the hand of the defender to make an admission of liability.
Once liability was no longer in issue, the parties could concentrate on the value of the case.
Aside from damages for future employment loss, pension loss and ‘lost years’ it was vital to consider the provision of future immunotherapy treatment to increase the pursuer’s life expectancy.
The defender agreed, in principle, to pay private medical costs (setting aside up to £200,000), but devoid of an ‘established pathway’ for Scottish courts to implement such payments, the parties undertook the challenging task of drafting and negotiating terms and conditions amenable to all.
Where provision of future immunotherapy treatment is sought, various vehicles exist to satisfy this specific head of damages. Such vehicles include periodical payment orders (PPO), interim settlements and full and final settlements, with every arrangement offering advantages and drawbacks that can be submitted to persuade insurers.
In the present case, it was decided that a ‘unilateral agreement’ was the best means of ensuring security of the treatment, with no lump sum set aside. In practice, the pursuer would pay for his own treatment when necessary and the defender assured that it would financially reimburse the pursuer within a short, set timescale upon receipt of the relevant invoices. This way, the pursuer retained control of when he received his treatment and, since some procedures require advanced payment, it also avoided excessive reliance on the remunerating 3rd party. Any initial treatment costs could be met by a sizeable award (£1.1 million in total) for other heads of damages.
Effectively, complete resolution of the claim was obtained within 6-months of being put into court.
It is acknowledged that concluding litigation of this type is ‘still part of a learning curve on both sides of the border’. ‘Without any existing “styles” or precedent to rely on’, Ms. Mackenzie remarked that this particular outcome is ‘among the first of many such agreements’ that her team will consider when acting on behalf of other young victims of personal injury in an area of ever-advancing medical science. She conceded that each agreement ‘will be dependent on the merits of the individual case’.
[i] Jillian Mackenzie, ‘Scottish mesothelioma sufferer secures £1.3million after Court of Session prioritises case during COVID-19 lockdown’ (26 January 2021 Digby Brown) https://www.lexology.com/library/detail.aspx?g=b8b4072a-45f0-4ee8-8510-6e63e854f9ce> accessed 3 March 2021.