Damages claim by relatives of asbestos victim dismissed as ‘irrelevant’

Lord Boyd of Duncansby heard that the 24 pursuers, all relatives of the late James Docherty, had brought a personal injury action against the Secretary of State for Business Innovation and Skills, the first defender, as successor to the rights and liabilities of Scott’s Shipbuilding and Engineering Company Limited, and Imperial Chemical Industries Limited, the second defender.

The first pursuer Louise Docherty, the widow and executrix nominate on the deceased’s estate, along witht the 23 other pursuers, sought damages from the defenders jointly and severally under the Damages (Scotland) Act 2011.

The pursuers averred that the deceased was a mechanical fitter and served an apprenticeship as a marine engineer with the first defenders in or about 1941 to 1947, and that in the course of that employment he was exposed to asbestos dust.

Then from in or about 1954 to 1979 the deceased was employed as a maintenance fitter by the second defenders at a plant in Wilton on Teesside, during which time he was exposed to further substantial quantities of asbestos dust.

It was said that as a result of these exposures he developed asbestosis and pleural plaques and died on 30 September 2011.

However, the second defender’s argued that the case against them was “irrelevant” on the basis that the “wrongs complained of occurred exclusively in England”.

The deceased had worked for the first defenders in Scotland for a few years in the 1940s, but otherwise he had lived and died all his life in Teesside and none of the pursuers had any connection with Scotland.

It was submitted that the issue fell to be decided at common law, as any alleged wrongdoing occurred before the coming into effect of the Private International Law (Miscellaneous Provisions) Act 1995 or the Rome II Regulations.

On behalf of the second defenders, Roddy Dunlop QC said the remedy which was sought in this case was under the 2011 Act, which had “no applicability” in England.

The claim that could be sought in English law was under the the Fatal Accidents Act 1976, but the only person who would be entitled to an award of damages was the first pursuer, the widow of the deceased.

It was not disputed that the Scottish court had jurisdiction, but it was “wrong in principle” that the pursuer should be able to claim damages in Scotland, available under Scottish law for a wrong committed in England simply because jurisdiction was established in Scotland.

The pursuers argued that liability was at common law, which was essentially the same in Scotland and in England, and the heads of damage, although expressed in different terms in different jurisdictions, were also essentially the same.

If the deceased had raised an action while still alive he could have pursued both defenders in Scotland or England.

Liability could have been established against both defenders on the basis of a joint and several liability or apportioned against the defenders, it was argued.

It was competent to proceed against both defenders as joint wrongdoers where the disease, as here, was a cumulative one and each contributed to a single result.

In Scotland and England the claims available on death were governed by statute and although differently expressed, section 4(3)(b) of the 2011 Act and section 1A(1) of the 1976 Act were “essentially the same”.

Solcitor advocate Tom Marshall for the pursuers invited the court to consider the issue from the perspective of the deceased, but the judge considered that to be the “wrong approach”.

In a written opinion, Lord Boyd said: “A claim under section 4 of the 2011 Act is one that vests in the relative of the deceased. They are the pursuers. This is of course in contrast to the position in England under the 1976 Act where the right to bring an action is at the hands of the executor or administrator of the deceased.

“The number of people who may bring a claim in England is much more limited; section 1A of the 1976 Act. If Mr Marshall was correct then it would mean that the second to twenty‑third pursuers who have no claim in England for a tort committed in England can not only bring an action for damages in Scotland but seek a remedy not available under English law.”

He added: “Accordingly in my opinion the action as drafted against the second defenders is irrelevant. I intend to dismiss the action insofar as it is brought by the second to twenty‑fourth pursuers against the second defenders.

“I would also propose dismissing the action against the second defenders at the instance of the first pursuer. However before doing so I shall put the case out by order to enable Mr Marshall to consider a minute of amendment to bring a claim under the 1976 Act and to deal with the question of expenses.”