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Late identification of insurer does not permit a second claim

The defenders submitted that once that decision had been made, the pursuer had given up his right to pursue the claim.

Madden v Donald Anderson Limited

The facts

The pursuer Paul Madden was diagnosed with pleural plaques in March 2007 following exposure to asbestos with two former employers:

  1. Harts Builders (Edinburgh Limited) and
  2. Donald Anderson Limited.

His solicitors at the time of instruction could not identify historic insurers for Donald Anderson Limited who were also at that time in voluntary liquidation. The case proceeded against Harts Builders only with damages agreed on a full and final settlement basis at £8,250, discounted for the unpursued Donald Anderson contribution.

Two years after the agreement the claimant/pursuer was diagnosed with diffuse pleural thickening. New solicitors were instructed, who having subsequently undertaken ELTO searches, identified an insurer during the period of the pursuer’s exposure and intimated a claim for damages against Donald Anderson Limited.

The pursuer accepted that the claim was time-barred in 2010 (three years after the diagnosis of pleural plaques) but argued that discretion should be applied pursuant to Section 19 (a) of the Prescription and Limitation Act [1973] – a statute similar to the Limitation Act of 1980, applicable in England and Wales.

The argument advanced was that it would be equitable to apply discretion, given that at the time of the first diagnosis of pleural plaques, the pursuer could not have secured any damages against Donald Anderson Ltd, given the absence at that time of a traced insurer and the company being in voluntary liquidation.

The defenders submitted that once that decision had been made, the pursuer had given up his right to pursue the claim.

The decision

Sheriff Mundy sitting in the All Scotland Personal Injury Court held that discretion would not be exercised in the pursuer’s favor, holding that the pursuer made (in 2010), a “deliberate, reasoned and rational decision” which amounted to an abandonment of the claim against Donald Anderson Limited.

Comment

Whilst the case provides helpful guidance on how the Scottish courts will approach the issue of discretion in occupational disease actions, the case is also instructive for claimants (pursuers) of the perils of concluding damages on a full and final settlement, rather than a provisional damages basis.

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