That is the first paragraph in the Opinion of Lord Tyre in the case of George Docherty and Others (actually 23 others) v Secretary of State for Business, Innovation and Skills. It is a succinct statement of the legal question that lies at the heart of the phenomenon of Forum Shopping that has become an important and very expensive issue for insurers and other paying parties, such as the Government Department which was our client in this case.
The answer, as we now know from Lord Tyre’s decision, is that the applicable law is the law of the place where the injury has taken place, and not the law of the place where the breach of duty, or otherwise “the harmful event”, took place.
In Docherty, the place the injury was suffered, in the form of the development of an asbestos-related disease, and the suffering and eventual death from that disease, was England. In other cases it could be one of the Provinces of Canada, one of the States of Australia, New Zealand, South Africa or any one of the other countries to which Scotsmen emigrated between 1950s-70s.
Scots Law provides substantial damages in fatal cases to a much wider range of family members than is the case in England and other jurisdictions. The Scottish courts have also been noticeably generous in valuing claims for grief and loss of association. This means that there is a very marked advantage in being a pursuer in Scotland, as opposed to a claimant elsewhere.
Those who can claim damages for grief and loss of association in Scotland, and who have no equivalent claim in England, are parents (rare but it does happen occasionally), siblings, children and grandchildren. With awards ranging from up to £35,000 for “children” (usually adults in their 40s-60s) down to £12,000 for grandchildren (even a child “en ventre sa mere” at the time of the deceased’s demise can claim) this can quite easily put the value of a Scottish fatal asbestos claim up by around £200,000, and more in the case of a large family.
The judgment makes a clear and accurate distinction between the law on jurisdiction and the law that applies to the case itself. Jurisdiction, that is the right to bring a case in a particular court, can be established in a number of different ways. In asbestos cases, if the exposure to hazard occurred in Scotland, then the Scottish courts have jurisdiction. Likewise if the exposure occurred at the hands of a Scottish company, then again the Scottish courts can hear the case. If the injury occurs later in England, then the English courts would also have jurisdiction, but claimants have the right to choose where they go. If they are well enough informed they go to Scotland.
The fact that they get the case off the ground, however, in Scotland, is not the end of the matter, as the question of what law the court is to apply to the substantive issues involved still has to be decided. The question of who can claim is obviously a substantive issue. The Scottish courts have routinely applied Scots law (the “lex fori”) as until now that has not been challenged.
The basis of the challenge was that there is no cause of action, “delict” in Scotland for breach of duty alone. There must also be injury, and so the applicable law (“lex loci delicti”) has to be the law of the place where the cause of action is completed. This actually is the position that would be reached under the Rome II Regulation, which is part of the law of the United Kingdom not only for the purposes of private international law but also as between the component nations of the United Kingdom. However, Rome II only applies where the event giving rise to damage occurs after the Regulation came into force, which was on 11 January 2009. So, the decision is based on the Common Law as it was before the advent of the Private International Law (Miscellaneous Provisions) Act 1995.
Unsurprisingly, the pursuers have initiated an appeal by intimating a “reclaiming motion”. However, Lord Tyre’s judgment is firmly based on longstanding case law authority and will, we believe, be difficult to challenge.
What can we learn?
- This is an important case, and a very good win against the prevailing orthodoxy, even if that orthodoxy was a lazy and ill-founded one. It is important to note, however, that the widow still has a claim for bereavement that may be brought in Scotland, as can claims for the value of familial care provided to the deceased, and for the cost of the funeral. This is because both Scottish and English law recognise those claims. If the widow had survived to the date of the debate in the court, she would also have had a claim for financial dependency, which again is recognised in both jurisdictions. However, she did not, and under English law that claim died with her.
- The quantum of damages is regarded as a “procedural” issue rather than a substantive one, and as such is governed by the lex fori; the law of the place where the court sits. Here the difference between the two jurisdictions is brought into sharp focus, as the widow’s award is likely to be in the range £50,000 - £80,000 compared with the £12,980 available under the equivalent English statute law.
- From the defender’s point of view there is one last benefit of the decision in Docherty. The Scottish Government legislated to overturn the verdict of the House of Lords in Rothwell to the effect that pleural plaques did not constitute a compensable injury and so were not actionable. Damages in five figures can now be recovered for this asymptomatic condition in Scotland. However, if the affected individual was ordinarily resident in England, or any other jurisdiction which does not award compensation for them, and brings his case to the Scottish courts, that claim will now fail.