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Date:
Fri, 30 Jun 2006 10:20:31 +0100
From:
Hector MacQueen
Subject:
Asbestos compensation
Further
information on the Compensation Bill amendment, gleaned from a statement
in the Scottish Parliament yesterday morning by the Deputy Justice
Minister on a motion (later passed) that the SP consent to the Westminster
legislation apply in Scotland albeit that damages liability is a
devolved matter:
...
thank our colleagues in the UK Government, who have pulled out all
the stops to ensure that we can debate the motion with a draft of
the proposed amendment to the Compensation Bill before us. I make
it clear to members that the amendment before them is a draft and
that, although the UK Government has announced its intention to
legislate in that way, there is a possibility that the drafting
may change before it is tabled in the House of Commons.
The
effect of subsections (1) and (2) of the clause that the draft
amendment will insert in the bill is to provide, in mesothelioma
cases, that negligent persons are held jointly and severally liable
for the damage caused by the disease. That means that the position
will be as it was before the Barker ruling, and that
claimants can claim for all damages from one liable party. Subsection
(3) affirms the current position relating to contributions from
other liable parties and to contributory negligence. The defender
against whom damages are awarded can claim contributions from
other liable parties as determined by the court. In considering
the award of damages, the court may take any contributory negligence
by the claimant into account. As I said, that provision is a reflection
of the current position and does not change the law in those areas.
The extent to which those provisions should have retrospective
effect is still under discussion in light of European convention
on human rights considerations.
The
retrospectivity issue is interesting, especially as we know that
Barker v Corus merely declared what the common law has
always been ...
Hector
--
Hector L MacQueen
Professor of Private Law
Director, AHRC Research Centre Intellectual Property and Technology
Law Edinburgh Law School University of Edinburgh Edinburgh EH8 9YL
UK
Tel: (0)131-650-2060; Fax: (0)131-662-6317
Quoting
Robert Stevens:
This really is no way to run a railroad.
What do we have a Law Commission, and indeed courts, for? If there
had not been the farcical Compensation Bill going through Parliament,
HMG would not have had the opportunity to reverse a decision which,
in my view, is correct and is a good start at putting the law back
on track. Instead of reviewing rationally an entire area, we have
a knee jerk response to the latest headline.
Hopeless.
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