Compensation Act 2006 in Scotland
2006 c. 29 · Enacted 25 July 2006 · Extends to United Kingdom
An Act to specify certain factors that may be taken into account by a court determining a claim in negligence or breach of statutory duty; to make provision about damages for mesothelioma; and to make provision for the regulation of claims management services.
[25th July 2006]
Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—C1
Annotations to the whole text
Modifications
- C1
Act modified (E.W.S.) (29.11.2018 for specified purposes, 1.4.2019 in so far as not already in force) by The Financial Services and Markets Act 2000 (Claims Management Activity) Order 2018 (S.I. 2018/1253), arts. 1(2)(3), 84(4)(5)
Contents
- Part 1: Standard of care
- 3Mesothelioma: damages
- Part 3: General
- 16Commencement
- Introduction
- 1Paragraph 1
- 2Paragraph 2
- Waiver of requirement for authorisation
- 3Paragraph 3
- Grant of authorisations
- 4Paragraph 4
- 6Paragraph 6
- Conduct of authorised persons
- 12Paragraph 12
- Enforcement
- 13Paragraph 13
- 15Paragraph 15
- Penalties: supplementary provision
- 16Paragraph 16
3Mesothelioma: damages
This section applies where—
a person (“the responsible person”) has negligently or in breach of statutory duty caused or permitted another person (“the victim”) to be exposed to asbestos,
the victim has contracted mesothelioma as a result of exposure to asbestos,
because of the nature of mesothelioma and the state of medical science, it is not possible to determine with certainty whether it was the exposure mentioned in paragraph (a) or another exposure which caused the victim to become ill, and
the responsible person is liable in tort, by virtue of the exposure mentioned in paragraph (a), in connection with damage caused to the victim by the disease (whether by reason of having materially increased a risk or for any other reason).
The responsible person shall be liable—
in respect of the whole of the damage caused to the victim by the disease (irrespective of whether the victim was also exposed to asbestos—
other than by the responsible person, whether or not in circumstances in which another person has liability in tort, or
by the responsible person in circumstances in which he has no liability in tort), and
jointly and severally with any other responsible person.
Subsection (2) does not prevent—
one responsible person from claiming a contribution from another, or
a finding of contributory negligence.
In determining the extent of contributions of different responsible persons in accordance with subsection (3)(a), a court shall have regard to the relative lengths of the periods of exposure for which each was responsible; but this subsection shall not apply—
if or to the extent that responsible persons agree to apportion responsibility amongst themselves on some other basis, or
if or to the extent that the court thinks that another basis for determining contributions is more appropriate in the circumstances of a particular case.
In subsection (1) the reference to causing or permitting a person to be exposed to asbestos includes a reference to failing to protect a person from exposure to asbestos.
In the application of this section to Scotland—
a reference to tort shall be taken as a reference to delict, and
a reference to a court shall be taken to include a reference to a jury.
The Treasury may make regulations about the provision of compensation to a responsible person where—
he claims, or would claim, a contribution from another responsible person in accordance with subsection (3)(a), but
he is unable or likely to be unable to obtain the contribution, because an insurer of the other responsible person is unable or likely to be unable to satisfy the claim for a contribution.
The regulations may, in particular—
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
replicate or apply (with or without modification) a transitional compensation provision;
provide for a specified person to assess and pay compensation;
provide for expenses incurred (including the payment of compensation) to be met out of levies collected in accordance with section 213(3)(b) of the Financial Services and Markets Act 2000 (c. 8) (the Financial Services Compensation Scheme);
modify the effect of a transitional compensation provision;
enable the F2Financial Conduct Authority or the Prudential Regulation Authority to amend the Financial Services Compensation Scheme;
modify the Financial Services and Markets Act 2000 in its application to an amendment pursuant to paragraph (f);
make, or require the making of, provision for the making of a claim by a responsible person for compensation whether or not he has already satisfied claims in tort against him;
make, or require the making of, provision which has effect in relation to claims for contributions made on or after the date on which this Act is passed.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
In subsections (7) and (8)—
a reference to a responsible person includes a reference to an insurer of a responsible person, and
“transitional compensation provision” means a provision of an enactment which is made under the Financial Services and Markets Act 2000 and—
preserves the effect of the Policyholders Protection Act 1975 (c. 75), or
applies the Financial Services Compensation Scheme in relation to matters arising before its establishment.
Regulations under subsection (7)—
may include consequential or incidental provision,
may make provision which has effect generally or only in relation to specified cases or circumstances,
may make different provision for different cases or circumstances,
shall be made by statutory instrument, and
may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.
16Commencement
The preceding provisions of this Act, other than sections 1, 2 and 3, shall come into force in accordance with provision made by order of the Secretary of State.
An order under subsection (1)—
may make provision generally or only for specified purposes,
may make different provision for different purposes,
may make transitional, consequential or incidental provision, and
shall be made by statutory instrument.
Section 3 shall be treated as having always had effect.
But the section shall have no effect in relation to—
a claim which is settled before 3rd May 2006 (whether or not legal proceedings in relation to the claim have been instituted), or
legal proceedings which are determined before that date.
Where a claim is settled on or after that date and before the date on which this Act is passed, a party to the settlement may apply to a relevant court to have the settlement varied; and—
a court is a relevant court for that purpose if it had, or would have had, jurisdiction to determine the claim by way of legal proceedings,
an application shall be brought as an application in, or by way of, proceedings on the claim, and
a court to which an application is made shall vary the settlement to such extent (if any) as appears appropriate to reflect the effect of section 3.
Where legal proceedings are determined on or after that date and before the date on which this Act is passed, a party to the proceedings may apply to the court to vary the determination; and—
“the court” means the court which determined the proceedings,
the application shall be treated as an application in the proceedings, and
the court shall vary the determination to such extent (if any) as appears appropriate to reflect the effect of section 3.
1
In this Schedule “regulations” means regulations under section 9.
2
Regulations made by virtue of a provision of this Schedule may confer a discretion on the Regulator.
3
Regulations may permit the Regulator to waive the requirement for authorisation, as mentioned in section 4(1)(c), in specified cases or circumstances.
Regulations by virtue of this sub-paragraph may permit waiver in relation to a person only—
if the Secretary of State intends to exempt the person under section 6, and
for a single period not exceeding six months.
The regulations may, in particular, permit or require the Regulator to provide for waiver to be subject to a condition of a kind specified in the regulations.
4
Regulations shall prescribe the procedure for applying to the Regulator for authorisation.
Regulations may, in particular, require the provision of information or documents relating to the applicant or to any person who appears to the Regulator to be connected with the applicant.
6
Regulations may—
provide for authorisation to be on specified terms or subject to compliance with specified conditions;
permit the Regulator to grant authorisation on terms or subject to conditions;
permit the Regulator to grant an application for authorisation only to a specified extent or only in relation to specified matters, cases or circumstances.
12
Regulations may require the Regulator to establish a scheme to compensate a client of an authorised person where—
money is paid to the authorised person in complete or partial satisfaction of the client's claim, and
the client is unable to obtain all or part of the money because the authorised person becomes insolvent or is otherwise unable or unwilling to pay.
In particular, regulations may make provision—
about the purchase of bonds or other forms of insurance or indemnity;
about the funding of the scheme (which may include the application of part of fees charged in accordance with paragraph 7 and may not include payments, or other financial assistance, by a Minister of the Crown);
about procedure in connection with compensation (including criteria to be applied);
about the amount of compensation.
13
Regulations may permit or require the Regulator to take action of a specified kind for the purpose of assessing compliance with terms or conditions of authorisations.
15
Regulations may make provision about the exercise by the Regulator of a power under section 8.
16F1
This paragraph applies in any case where regulations include provision enabling the Regulator to require an authorised person to pay a penalty.
The regulations—
shall include provision about how the Regulator is to determine the amount of a penalty, and
may, in particular, include provision specifying a minimum or maximum amount.
The regulations—
shall provide for income from penalties imposed by the Regulator to be paid into the Consolidated Fund, but
may provide that such income is to be paid into the Consolidated Fund after the deduction of costs incurred by the Regulator in collecting, or enforcing the payment of, such penalties.
The regulations may also include, in particular—
provision for a penalty imposed by the Regulator to be enforced as a debt;
provision specifying conditions that must be met before any action to enforce a penalty may be taken.