Veale and others v Scottish Power UK plc

Under section 5 of the Damages (Scotland) Act 2011, relatives may claim non-patrimonial damages where the deceased died from mesothelioma after previously discharging the wrongdoer’s liability. The deceased need not have been suffering from, or aware of suffering from, mesothelioma when the discharge occurred.

The expression “liability to pay damages” has the same general meaning throughout sections 3 to 5. Clear statutory language governs even where its effect extends beyond the particular mischief identified in legislative background materials. A court cannot confine that language by inserting an additional condition which Parliament did not enact.

Robert Crozier developed pleural plaques and asbestosis after occupational exposure to asbestos while employed by Scottish Power UK plc. In 2014 he settled an action which included damages for the risk of developing mesothelioma. The settlement discharged the company’s further liability arising from the exposure, although he did not then have mesothelioma. He subsequently developed mesothelioma and died in 2018.

Members of his immediate family sought non-patrimonial damages under section 4(3)(b) of the Damages (Scotland) Act 2011. The Lord Ordinary and the First Division rejected the company’s contention that section 5 required the deceased to have mesothelioma when liability was discharged: [2023] CSOH 50; 2023 SLT 755 and [2024] CSIH 14; 2024 SC 373.

The issue was whether section 5(1)(a) could be satisfied where the deceased developed mesothelioma only after the discharge.

1. The appeal was dismissed unanimously. Lord Reed, with whom Lord Briggs, Lord Hamblen, Lord Leggatt and Lord Burrows agreed, held that section 5(1)(a) of the Damages (Scotland) Act 2011 does not require the deceased to have been suffering from mesothelioma when liability was discharged. All three statutory conditions were satisfied.
2. The settlement included a claim relating to the risk that the deceased would develop mesothelioma. It therefore discharged the company’s liability to pay damages if that disease later developed. The company’s argument failed even on its proposed understanding of liability for mesothelioma.
3. The phrase “liability to pay damages” must bear the same meaning in sections 3, 4 and 5 because those provisions are interconnected. Section 3 applies generally to death resulting from personal injuries caused by another’s act or omission. Section 4(2) likewise refers generally to liability arising from that act or omission. Section 5(1)(a), which uses identical language to create an exception to section 4(2), cannot restrict the phrase to liability for mesothelioma already suffered when the discharge occurred. The mesothelioma condition appears separately in section 5(1)(b): the injury in consequence of which the person died must have been mesothelioma.
4. The proposed construction was also self-defeating. If the settlement did not discharge the relevant liability for the purposes of section 5(1)(a), it equally could not engage the bar in section 4(2). The relatives’ section 4(1) claim would therefore remain available.
5. The heading “Discharge of liability to pay damages: exception for mesothelioma” supported the ordinary reading. It describes a general discharge of liability followed by an exception where death resulted from mesothelioma.
6. Legislative background showed that the immediate mischief was the dilemma faced by diagnosed mesothelioma sufferers choosing between recovering damages personally and preserving their relatives’ claims. That background could not override clear statutory language. The enacted provisions deliberately protected a wider class, including people who were unaware of their disease when liability was discharged and people who developed it later. Confining the exception as proposed would require the court to add a condition that the deceased was suffering, and knew that he was suffering, from mesothelioma. The court could not rewrite the legislation in that manner.
7. The result was neither absurd nor impermissibly anomalous. Section 5 intentionally permits relatives to claim despite an earlier discharge and creates a disease-specific exception for mesothelioma. Any absence of a corresponding exception for other fatal conditions could not alter the meaning of the enacted provision.

1. United Kingdom Supreme Court: Dismissed Scottish Power UK plc’s appeal unanimously and affirmed the construction adopted below: [2025] UKSC 45.
2. First Division of the Court of Session: Rejected the defender’s construction but granted permission to appeal: [2024] CSIH 14; 2024 SC 373.
3. Lord Ordinary: Rejected the defender’s argument that the deceased had to be suffering from mesothelioma when liability was discharged: [2023] CSOH 50; 2023 SLT 755.