The family of Robert Crozier, who died of mesothelioma after previously settling an asbestos claim, sought damages under the Damages (Scotland) Act 2011. The Supreme Court held that section 5 applied regardless of whether the deceased had mesothelioma at the time liability was discharged, dismissing Scottish Power’s appeal.
Background
Robert Crozier was employed by Scottish Power UK plc between 1969 and 1992. During his employment, he was exposed to asbestos. In 2014, having developed pleural plaques and asbestosis, Mr Crozier sued Scottish Power for damages. Part of the claim related to the risk of developing mesothelioma in the future. The action was settled by agreement, discharging Scottish Power of further liability in respect of the consequences of Mr Crozier’s asbestos exposure, including any future mesothelioma. Critically, Mr Crozier was not suffering from mesothelioma at the time of the settlement. He subsequently developed mesothelioma and died of the disease in 2018.
Following his death, members of his immediate family (the respondents) raised proceedings seeking damages under section 4(3)(b) of the Damages (Scotland) Act 2011 (‘the 2011 Act’), which provides for compensation for distress, grief, and loss of society and guidance. Scottish Power contended that the claim was barred by section 4(2), which excludes liability to relatives where the deceased had previously discharged the wrongdoer’s liability before death. The respondents relied upon the exception in section 5, which disapplies section 4(2) in mesothelioma cases.
The Issue
The central question was whether section 5(1)(a) of the 2011 Act required that the deceased (A) was suffering from mesothelioma at the time the liability to pay damages was discharged. Scottish Power argued that section 5(1)(a) applied only where the discharged liability was specifically a liability for mesothelioma, which could only exist if A had mesothelioma at the date of settlement. The respondents argued that the phrase ‘liability to pay damages’ in section 5(1)(a) bore its ordinary general meaning and was not confined to liability for mesothelioma.
The Parties’ Arguments
Scottish Power (Appellant)
Scottish Power contended that ‘liability to pay damages’ in section 5(1)(a) must be read as referring to a liability to pay damages for mesothelioma. Since Mr Crozier did not have mesothelioma at the time of settlement, no such liability existed and therefore no such liability could have been discharged. Scottish Power relied on the heading of section 5 (‘Discharge of liability to pay damages: exception for mesothelioma’), and on background materials including the Policy Memorandum to the Rights of Relatives to Damages (Mesothelioma) (Scotland) Bill, to argue the mischief addressed was confined to the dilemma of persons who knew they had mesothelioma. Scottish Power also argued the respondents’ interpretation produced absurd or anomalous results.
The Respondents (Veale and Others)
The respondents submitted that all three conditions in section 5(1) were met: the liability to pay damages had been discharged by Mr Crozier before his death (section 5(1)(a)); the personal injury from which he died was mesothelioma (section 5(1)(b)); and the discharge and death each occurred after 20 December 2006 (section 5(1)(c)). No additional requirement that A be suffering from mesothelioma at the date of discharge appeared in the statute.
The Court’s Reasoning
Textual Analysis
Lord Reed, delivering the unanimous judgment, rejected Scottish Power’s argument on multiple grounds. First, even accepting the appellant’s premise that the phrase referred to liability for mesothelioma, the settlement of Mr Crozier’s claim — which included a claim for damages in respect of the risk of developing mesothelioma — discharged Scottish Power’s liability for that very eventuality:
the claim which Mr Crozier brought against the defenders, and which was settled by agreement, included a claim for damages in respect of the risk that he would in future develop mesothelioma. The effect of the settlement of that claim was to discharge the defenders’ liability to pay him damages in the event that he subsequently developed mesothelioma.
Secondly, the phrase ‘liability to pay damages’ appears throughout sections 3, 4 and 5 and must bear the same meaning in each provision. Section 3 governs the application of both sections 4 and 5, and is concerned generally with persons who die of personal injuries — not specifically mesothelioma. It follows that the phrase in section 4(2) and section 5(1)(a) is equally general.
There is no conceivable basis for construing the phrase ‘liability to pay damages’ in section 3 as referring only to a liability to pay damages for mesothelioma.
Thirdly, Lord Reed identified that the condition relating to mesothelioma is introduced by section 5(1)(b) — namely that the personal injury from which A died was mesothelioma — and not by section 5(1)(a):
Nothing is said in section 5(1)(a) about mesothelioma. It is section 5(1)(b) which introduces a condition relating to mesothelioma; and the condition is that the personal injury in consequence of which A died was mesothelioma, not that A was suffering from that condition at the time when liability was discharged.
The Self-Defeating Nature of the Appellant’s Argument
Lord Reed delivered a particularly incisive observation: the appellant’s argument was self-defeating. If the liability for mesothelioma had not been discharged (because it did not exist at the time of settlement), then section 4(2) would not bar the relatives’ claim either, because the relevant liability had not been discharged:
If, for the sake of argument, the liability to pay damages to Mr Crozier for mesothelioma was not discharged, with the consequence that section 5(1)(a) did not apply, it would follow that his relatives were entitled to bring a claim against the defenders under section 4(1). Section 4(2) would not operate to bar their claim, since ex hypothesi the liability to pay damages to Mr Crozier for mesothelioma had not been discharged.
The Heading of Section 5
Lord Reed held that the section heading (‘Discharge of liability to pay damages: exception for mesothelioma’) was entirely consistent with the straightforward reading of the provision — namely that section 5 concerns the discharge of a general liability to pay damages and creates an exception where the death resulted from mesothelioma.
Background Materials
The Court accepted that the Scottish Government’s Policy Memorandum identified the mischief as the dilemma facing persons who knew they had mesothelioma when choosing whether to settle. However, Lord Reed emphasised that the legislation as enacted went beyond that specific mischief. He cited the fundamental constitutional principle that courts must give faithful effect to enacted legislation:
Citizens, with the assistance of their advisers, are intended to be able to understand parliamentary enactments, so that they can regulate their conduct accordingly. They should be able to rely upon what they read in an Act of Parliament.
Lord Reed further noted that confining section 5 to address only the precise mischief would require the court to rewrite the provision by adding a condition that A was suffering from and knew of mesothelioma at the time of discharge — a condition Parliament did not include. There were also understandable reasons for the wider drafting, including protection for families of those who were undiagnosed or developed mesothelioma after discharge.
Absurdity and Anomaly
The Court rejected the argument of absurdity. That relatives could claim after liability to the injured person was discharged was the very purpose of section 5. As to the anomaly of protecting mesothelioma victims but not those with other asbestos-related conditions, Lord Reed observed that the legislation was deliberately designed to create an exception for mesothelioma, and the Scottish Law Commission had specifically considered and rejected extending the exception to other diseases.
Practical Significance
This decision confirms that section 5 of the Damages (Scotland) Act 2011 applies wherever the deceased’s death resulted from mesothelioma, regardless of whether the deceased had developed or been diagnosed with mesothelioma at the time the wrongdoer’s liability was discharged. The ruling protects the families of individuals who settle asbestos-related claims before developing mesothelioma, ensuring they are not deprived of their statutory right to claim non-patrimonial damages. It also reaffirms important principles of statutory interpretation: that clear statutory language must be given effect even where external materials suggest a narrower mischief, and that courts cannot rewrite legislation to confine its scope to the specific problem that prompted its enactment.
Verdict: The appeal by Scottish Power UK plc was unanimously dismissed. The Supreme Court upheld the decisions of the Lord Ordinary and the First Division, holding that section 5 of the Damages (Scotland) Act 2011 applied and the respondents were entitled to claim damages under section 4(3)(b), notwithstanding that Mr Crozier was not suffering from mesothelioma at the time he discharged the defenders’ liability.
Source: Veale and others v Scottish Power UK Plc [2025] UKSC 45
