Lawford Kidd's Blog

Claimants making asbestos claims may have no legal right to compensation where at the time of exposure levels of protection offered by employers would have been considered adequate, albeit considered negligent by today's standards. In McGregor v Genco, the Court highlighted this point, underlining the importance that all claims must be looked at individually, on a case-by-case basis, and with regard to the overwhelming body of case law in the area.

The Court could not '..accept that during 1976…the defendant should have appreciated that the claimant was at risk of an asbestos related injury and that their failure to appreciate and take what would now be regarded as appropriate precautions or to make enquiries about the nature of the dust was negligent'.

This could be a particularly important point for defendants in legacy claims, especially in Scotland where fatal claims are more expensive than they are in England.  It means that, even where a Claimant’s mesothelioma or asbestosis was indeed caused by exposure to asbestos while in employment with a Defendant - which would satisfy the causation test - the Defendant cannot be held to have acted negligently, where they acted in accordance with the standards at the time.  

The controversial Courts Reform (Scotland) Bill is to be amended after the Scottish Government agreed not to increase the exclusive competence of the sheriff court to £150,000. Instead, it will be increased to £100,000.

The new threshold of £100,000 was agreed during Holyrood’s Justice Committee's stage 2 consideration of the Bill, despite to pressure from MSPs to have the figure set at either £30,000 or £50,000.

The Government’s concession is perhaps no more than a step in the right direction, with much of Scotland’s legal community – particularly its personal injury lawyers – remaining concerned about the ability of claimants to obtain justice.

The Faculty of Advocates has published a response to the Scottish Civil Justice Council’s (SCJC) questionnaire on pre-action protocols that require necessary steps to be taken before a case can start.

Presently, there are no compulsory pre-action protocols in Scotland. Instead there are four voluntary protocols covering: Court of Session commercial actions; personal injury claims up to £10,000; professional negligence claims up to £20,000; and, industrial disease claims.

With the Courts Reform (Scotland) Bill proposing to give the Court of Session the power to introduce compulsory pre-action protocols, last month, the SCJC began an information gathering exercise on: (1) the current use of voluntary pre-action protocols; and (2) the possible introduction of compulsory protocols.

The European Union (EU) is positively impacting upon both health and safety and environment legislation in the United Kingdom, according to a new survey by Cedrec.

Cedrec, which helps simplify and interpret safety and legislation, conducted the survey of heath and safety and environment professionals across the UK, in a bid to better understand perceptions about the EU, ahead of European elections.

In terms of safety legislation, the survey showed: fifty-four per cent (54%) of the professionals survived believed the EU is having a positive impact on making the workplace safer; thirty-four per cent (34%) indicated the EU was having a negative effect, thus making the workplace more dangerous; while twelve per cent (12%) said the EU was making no difference.

The Stage 1 debate on the Courts Reform (Scotland) Bill took place earlier this week, with MSPs unanimously approving the general principles of the bill.

Perhaps unsurprisingly, following the Justice Committee’s Stage 1 Report and recent comments made by the Law Society of Scotland, much of the debate focused on the proposal to increase in the private jurisdiction limit of the sheriff court for bring claims worth £5,000 up to £150,000.

Ahead of the debate, Law Society of Scotland’s Civil Justice Committee Secretary, Fiona Robb stated: