Annex 1
COMPENSATION ACT 2006
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.
SECTION 3 MESOTHELIOMA:
DAMAGES
(1) This section applies where—
(a) 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,
(b) the victim has contracted mesothelioma as
a result of exposure to asbestos,
(c) 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
(d) 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).
(2) The responsible person shall be liable—
(a) 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—
(i)other than by the responsible person, whether
or not in circumstances in which another person has liability
in tort, or
(ii)by the responsible person in circumstances in
which he has no liability in tort), and
(b) jointly and severally with any other responsible
person.
(3) Subsection (2) does not prevent—
(a) one responsible person from claiming a contribution
from another, or
(b) a finding of contributory negligence.
(4) 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—
(a) if or to the extent that responsible persons
agree to apportion responsibility amongst themselves on some other
basis, or
(b) 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.
(5) 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.
(6) In the application of this section to
Scotland—
(a) a reference to tort shall be taken as a reference
to delict, and
(b) a reference to a court shall be taken to
include a reference to a jury.
(7) The Treasury may make regulations about
the provision of compensation to a responsible person where—
(a) he claims, or would claim, a contribution
from another responsible person in accordance with subsection
(3)(a), but
(b) 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.
(8) The regulations may, in particular—
(a) replicate or apply (with or without modification)
a provision of the Financial Services Compensation Scheme;
(b) replicate or apply (with or without modification)
a transitional compensation provision;
(c) provide for a specified person to assess
and pay compensation;
(d) 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);
(e) modify the effect of a transitional compensation
provision;
(f) enable the Financial Services Authority to
amend the Financial Services Compensation Scheme;
(g) modify the Financial Services and Markets
Act 2000 in its application to an amendment pursuant to paragraph
(f);
(h) 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;
(i) 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.
(9) Provision made by virtue of subsection
(8)(a) shall cease to have effect when the Financial Services
Compensation Scheme is amended by the Financial Services Authority
by virtue of subsection (8)(f).
(10) In subsections (7) and (8)—
(a) a reference to a responsible person includes
a reference to an insurer of a responsible person, and
(b) "transitional compensation provision"
means a provision of an enactment which is made under the Financial
Services and Markets Act 2000 and—
(i)preserves the effect of the Policyholders
Protection Act 1975 (c. 75), or
(ii)applies the Financial Services Compensation Scheme
in relation to matters arising before its establishment.
(11) Regulations under subsection (7)—
(a) may include consequential or incidental provision,
(b) may make provision which has effect generally
or only in relation to specified cases or circumstances,
(c) may make different provision for different
cases or circumstances,
(d) shall be made by statutory instrument, and
(e) may not be made unless a draft has been laid
before and approved by resolution of each House of Parliament.
16 Commencement
(1) 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.
(2) An order under subsection (1)—
(a) may make provision generally or only for
specified purposes,
(b) may make different provision for different
purposes,
(c) may make transitional, consequential or incidental
provision, and
(d) shall be made by statutory instrument.
(3) Section 3 shall be treated as having
always had effect.
(4) But the section shall have no effect
in relation to—
(a) a claim which is settled before 3 May
2006 (whether or not legal proceedings in relation to the
claim have been instituted), or
(b) legal proceedings which are determined before
that date.
(5) 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) 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,
(b) an application shall be brought as an application
in, or by way of, proceedings on the claim, and
(c) 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.
(6) 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—
(a) "the court" means the court which
determined the proceedings,
(b) the application shall be treated as an application
in the proceedings, and
(c) the court shall vary the determination to
such extent (if any) as appears appropriate to reflect the effect
of section 3.
17 Extent
(1) This Act shall extend to England and
Wales only.
(2) But section 3 (and section 16(3)
to (6)) shall extend to—
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