Scottish court damages claim by relatives of asbestos victim to be determined by English law

Relatives of the late James Docherty raised the action in Scotland under the Damages (Scotland) Act 2011, but the defender, the Secretary of State for Business, Innovation and Skills, who denied liability, argued that the applicable law was English law.

Lord Tyre ruled that the pursuers’s claims for reparation based upon the Scottish legislation were “irrelevant” and held that the case fell to be determined under English law.

Asbestos exposure

The court heard that Mr Docherty died in 2011 and that a post-mortem examination disclosed the presence of pleural plaques and indicated levels of asbestos exposure generally associated with asbestosis.

It was averred by the pursuers that the deceased was a mechanical fitter who served an apprenticeship with Scotts Shipbuilding and Engineering Company in Greenock (for whose liabilities the defender is now responsible) from about 1941 to 1947, during which time he was exposed to inhalation of asbestos dust.

Between 1954 and 1979 the deceased worked for Imperial Chemical Industries Ltd (ICI) at their plant in Teesside, during which time he was again exposed to quantities of asbestos dust.

In about 2003 he began to experience respiratory symptoms and continued to suffer from chest problems from time to time thereafter.

In September 2009 he was admitted to hospital in Middlesbrough, where a CT scan showed inter alia basal bronchiectasis with fibrosis and mild pleural thickening, and he continued to suffer respiratory difficulties until he died in 2011.

Damages action

The present action for damages was raised in 2014 by the deceased’s widow, as an individual and as the deceased’s executrix nominate, and by 23 other relatives, but the deceased’s widow has since died and her executors have been sisted in her place. They are also now the executors of the deceased.

At the time when he began to experience respiratory symptoms, at the time of diagnosis and immediately prior to his death, the deceased lived in England.

As the solicitor advocate for the pursuers acknowledged, the present action was raised in Scotland with a view to benefiting from the Damages (Scotland) Act 2011, which allows rights of action to relatives who would have no claim under English law.

It was a matter of agreement that the only claims made in the present action that would be competent under English law were (i) the executors’ claim for the deceased’s non-pecuniary loss prior to his death, including loss of expectation of life; (ii) the executors’ claim for the care provided by relatives to the deceased during his illness; and (iii) the deceased’s funeral expenses.

Following a Procedure Roll debate at which the present defender was not represented, Lord Boyd of Duncansby held ( CSOH 149) that the action in so far as directed against ICI was irrelevant because it had proceeded under Scots law; the locus delicti was England, and Scots law as lex fori did not recognise any specific right of action which was denied to the pursuer by the lex loci delicti.

Lord Boyd put the case out by order to enable the pursuers to lodge a minute of amendment to introduce a claim under the relevant English legislation but, following a further hearing, Lord Ericht refused to allow the amendment to be made (see CSOH 54) and dismissed the action in so far as directed against ICI.

Thereafter the pursuers’ pleadings were amended to insert a claim by the executors against the present defenders on the hypothesis that the applicable law is English law, although the pursuers’ primary position is that the applicable law is the law of Scotland.

Applicable law

The case came before Lord Tyre on the Procedure Roll to consider whether the applicable law was determined by the Rome II Regulation (no 864/2007) on the law applicable to non-contractual obligations; and if not, the applicable law under the common law of Scotland.

The judge held that while the circumstances of the case did give rise to a conflict of laws, the Rome II Regulation had “no application” to it.

In relation to the question of the applicable law at common law, on behalf of the defender it was submitted that it was well recognised that there had to be concurrence of injuria (breach of duty) and damnum (occurrence of material harm) before a right of action in delict arose.

The locus delicti was the place of such concurrence and on the facts of the present case, the concurrence of breach of duty and material harm occurred in England, when non-negligible asbestos-related damage was diagnosed.

It followed that the locus delicti was England, and English law applied, meaning claim under the Damages (Scotland) Act 2011 was “irrelevant”.

On behalf of the pursuers, the primary submission was that the circumstances of this case did not give rise to any issue of conflict of laws, as this was a “straightforward claim” in a Scottish court by relatives of a person who had become ill and died as a consequence of allegedly negligent exposure in Scotland to inhalation of asbestos fibres.

The only point of interaction between the deceased and the defender was at the stage of exposure; that was when the “legal relationship” between them was established.

The critical question was not when concurrence of injuria and damnum had occurred; rather it was when the relationship between the defender and the deceased had subsisted.

The fact that the deceased had moved afterwards to live in another jurisdiction was a matter of chance which ought not to determine the law applicable to a breach of duty in Scotland.

Scots law case dismissed

However, the judge ruled that the case should be determined by English law.

In a written opinion, Lord Tyre said: “I hold that the pursuers’ claims for reparation for loss arising as a consequence of the allegedly negligent exposure of the deceased to inhalation of asbestos dust during his employment by the defender’s predecessor fall to be determined according to English law. Their case, so far as based upon theDamages (Scotland) Act 2011, is irrelevant. I shall therefore dismiss the action against the defender at the instance of the second to twenty-fourth pursuers, and I shall exclude from probation the averments of the first pursuers in so far as these proceed on the basis of the provisions of the Damages (Scotland) Act 2011.”

The judge allowed a proof before answer in so far as the pursuers’ case proceeded under English law, in terms of which their claim was restricted to the three items agreed by the parties.