What is covered

Where these claims come from, and why it matters

Industrial disease is the one part of injury law where geography is not incidental. What a person was exposed to, which employer was responsible, and whether that employer can still be traced all follow from the industry that stood where they worked. Scotland’s industrial pattern was regional and highly concentrated, and decades later it still determines the shape of the claim.

Shipbuilding and marine engineering: the Clyde and Inverclyde

The yards and marine engineering works of the Clyde, at Clydebank, Govan, Greenock and Port Glasgow, used asbestos to lag pipework, boilers and turbines on a scale few industries matched. Exposure was not confined to the laggers. Joiners, electricians, welders and labourers working alongside them breathed the same air, and asbestos reached households on work clothing brought home. The conditions that follow are mesothelioma, asbestosis, asbestos-related lung cancer, diffuse pleural thickening and pleural plaques.

Steel, engineering and heavy manufacturing: Lanarkshire and the central belt

Steelmaking and the engineering and manufacturing works around it produced asbestos exposure during furnace and plant maintenance, and also the three conditions that arise wherever heavy plant is run without adequate control: noise-induced hearing loss, hand-arm vibration syndrome, and occupational respiratory disease caused by dust and fume. Paisley’s textile past and Fife’s linoleum works leave a comparable legacy on a smaller scale.

Mining: the Lanarkshire, Ayrshire, Fife and Lothian coalfields

The coalfields left a legacy of respiratory disease caused by coal dust and silica, of hearing loss from underground machinery, and of vibration injury from mechanised cutting tools. Because the collieries and their operators have long since gone, identifying the correct defender, or the insurer standing behind it, is often the first substantial piece of work in these claims.

Process and chemical industry: Grangemouth and the Forth valley

The petrochemical complex at Grangemouth and its contractor chain generate a pattern of work that the size of the local population would not suggest: chemical and solvent exposure, occupational asthma and dermatitis, noise-induced hearing loss, and serious plant accidents. Contractor and sub-contractor arrangements mean the company a person worked for and the company responsible for the conditions of the work are frequently not the same.

Offshore energy: Aberdeen and the north-east

On a single installation the operator, the drilling contractor, a service contractor, an agency and the contractual employer may all be different companies. The contractual employer is often perfectly obvious; what requires investigation is which of those companies may bear legal responsibility, because control, employment and the acts or omissions complained of need not point to the same one. For civil purposes the offshore area is divided into English, Scottish and Northern Irish areas, and under article 2(b) of the Civil Jurisdiction (Offshore Activities) Order 1987 the law in force in Scotland applies to questions arising out of relevant acts taking place in the Scottish area. Where a working history spans more than one area, or involves vessels or work outside the United Kingdom, further questions of applicable law and forum can arise.

Maritime, naval and fishing: the ports and the coasts

Merchant seafarers, fishermen and dock workers met asbestos in engine rooms and accommodation spaces, noise in machinery spaces and vibration on deck. The naval dockyard at Rosyth adds a further asbestos legacy in west Fife. Employment at sea also brings its own questions over the identity of the employer and the flag of the vessel, which affect how and where a claim proceeds.

Time limits, and why they work differently here

Under section 17 of the Prescription and Limitation (Scotland) Act 1973 an action must be brought within three years of the date the injuries were sustained or, where the act or omission was a continuing one, the later of that date and the date on which it ceased. Where it is later still, the three years run instead from the date on which the pursuer became aware, or on which it would have been reasonably practicable to become aware, of three facts: that the injuries were sufficiently serious to justify bringing an action, assuming that liability was not disputed and that the defender could satisfy a decree; that they were attributable to an act or omission; and that the defender was the person responsible or that person’s employer or principal.

Knowing that what happened amounted to fault in law is not one of those facts. In industrial disease the date of knowledge is very often decades after the work ended, so the fact that you left the job in 1985 does not by itself defeat a claim. What matters is when you knew.

Where an action would otherwise be time-barred, section 19A gives the court a discretion to allow it to proceed where the court considers it equitable to do so. That is a discretion, not a right. Where the disease has caused a death, section 18 applies instead, and gives the relatives three years from the death or, if later, from their own date of knowledge.

The duties that applied at the time still matter

Where a breach of a duty imposed by health and safety regulations occurs on or after 1st October 2013, that breach is generally no longer actionable in itself, so a civil claim will ordinarily require a common-law basis rather than resting solely on the regulatory breach. That is the effect of section 69 of the Enterprise and Regulatory Reform Act 2013, which substituted section 47(2) of the Health and Safety at Work etc. Act 1974, subject to the exceptions preserved by regulations made under that section.

Section 69(10) provides that the change does not apply where the breach occurred before commencement. The test is the date of the breach, not the date of diagnosis, which matters a great deal in an area where the working history is usually historic and may straddle that date.

If the employer no longer exists

This stops a great many people from asking, and it should not. Claims are met by the employer’s insurer at the time of the exposure, not by the company, and specialist firms trace historic insurers as a matter of routine. A company dissolved in the 1990s can often still be traced to an insurer that remains liable.

Where no insurer can be found there are statutory schemes providing lump sum payments, particularly for mesothelioma and other asbestos conditions.

Claims after a death

Where somebody has died of an industrial disease, section 4 of the Damages (Scotland) Act 2011 allows the immediate family to claim for the distress and anxiety of contemplating the person’s suffering, for grief and sorrow, and for the loss of the person’s society and guidance. A wider group of relatives may claim for loss of support, together with reasonable funeral expenses.

One qualification is important, and it is often stated wrongly. Section 4(2) provides that, except as provided for in section 5, no such liability arises where the liability to the deceased was excluded or discharged, whether by agreement or otherwise, before the death. In other words, where the person settled their own claim in their lifetime, the family’s claims will generally not arise at all. Mesothelioma is the exception. Section 5 preserves the immediate family’s claim for distress, grief and loss of society, though not the claim for loss of support, where the discharge and the death each occurred on or after 20th December 2006.