Asbestos & Res Judicata

The case of John Cole & Others v Advocate General for Scotland 2015 CSOH102 is a rather unusual example of a successful plea of “Res Judicata”.  This is a plea taken to the effect that the matter has already been judicially decided and a “second bite at the cherry” is not competent.

Lady Stacey’s Opinion of 3 July 2015 has now been issued.

In 1990 the late Mr Cole raised an Action for Personal Injury on the basis he had been negligently exposed to asbestos dust while an employee of the Ministry of Defence.  He claimed he had developed Pleural Plaques.

This Action was settled by the parties.  The Joint Minute lodged in Court to dispose of the Action reserved to Mr Cole the right to apply for further damages under the Administration of Justice Act 1982 if he contracted mesothelioma, lung cancer or asbestosis with the provision that any such contraction should be within twenty years of the date of the Joint Minute and that the contraction was caused by exposure to asbestos.

In 2011 Mr Cole raised a further Action averring he had contracted mesothelioma, again as a result of negligent exposure to asbestos while employed by the Ministry of Defence.  He then died at the end of 2011 and family representatives were “sisted” as Pursuers in his place.

This second Action was then abandoned by the Pursuers by way of a Minute of Amendment.  The Defender was absolved from liability.

The Pursuers who had been sisted in Mr Cole’s place in the 2011 Action were, in July 2014, sisted as Pursuers in the original 1990 Action.

It was argued for the Defender that Res Judicata applied.  Five factors were necessary for a Res Judicata plea to be successful, being:-

  1. The prior determination was made by a competent Tribunal
  2. The prior determination was pronounced in a contested Action
  3. The subject matter of the two Actions must be the same
  4. The grounds of action in the two Actions were the same
  5. The parties to the second Action must be identical with or representative of the parties to the first Action.

In this case there was the odd situation in respect of the order of events.  The Defender argued that the 2011 Action should have been abandoned by way of dismissal and payment of expenses rather than absolving the Defender from liability.  If that had happened then the original 1990 Action would still be live and it could have proceeded.

The Pursuers argued that the 2011 Action was “void”.  The Pursuers said that after the late Mr Cole had died it was discovered that he didn’t have mesothelioma which formed the basis for the Action but he did have asbestosis.  The raising of the 2011 Action was the wrong procedure but nevertheless the Pursuers weren’t looking to raise a new Action but were seeking to proceed in an existing Action ie, the 1990 Action.

Lady Stacey said that the 2011 Action had been raised in error and she could understand the circumstances.  With the Pursuers agreeing to absolvitor in the 2011 Action where damages had been sought for a personal injury caused by negligent exposure to asbestos, the basis of the action was the same that in the 1990 Action.

For the Pursuers to attempt to bring to Court a matter which had been left outstanding by the first Joint Minute in the 1990 Action (the ability to seek further damages) was not permissable because they had consented to a Decree of Absolvitor (in the 2011 action).  Lady Stacey said the Decree of Absolvitor could not be ignored.

On that basis she considered that Res Judicata did apply and absolved the Defender from any liability in the original 1990 Action.

The circumstances of this case are such that it is probably unlikely they will occur again, but the decision is nevertheless a warning to parties on how not to proceed in cases where provisional damages have been agreed and the possibility of future claims has been left open.

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