The Inner House have today held that in an action for damages arising from wrongful exposure to asbestos in Scotland, when a disease manifests at a later date creating a right of action, irrespective of whether the claimant continues to reside in Scotland or has moved to some other country, Scottish Law will determine the assessment of damages.

The unanimous Opinion of Lord President Carloway, Lord Menzies and Lord Brodie reverses the proposition which was accepted by Lord Ordinary Tyre, instead concluding that it is the law of the place where the harmful event took place (i.e. the breach of duty, namely exposure to asbestos) that determines the locus delicti and accordingly choice of law provisions, rather than the law of the place where the loss eventually occurred (i.e. where the claimant is when the condition develops).

In Docherty v Secretary of State (2018) CSOH25 Lord Tyre posed the following question:-

"Where a man, while working in Scotland, inhales asbestos fibres that cause injury to his body after he had become resident in England, which law is applicable to determine the admissibility of claims for damages made by his Executors and relatives after his death?".

Background

Mr James Docherty (the deceased) died on 30th September, 2011. A post mortem examination identified the presence of pleural plaques and the levels of asbestos exposure generally associated with asbestosis. An action for damages was raised in 2014 by the deceased's widow (both as an individual and as the deceased's Executrix Nominate) together with twenty three other relatives of the deceased. The deceased's widow has since died and her Executor sisted in her place.

The Pursuers allege that the deceased was exposed to asbestos fibres as a mechanical fitter who served an apprenticeship with the First Defenders' predecessors, Scots Shipbuilding and Engineering, in Greenock, between 1941 and 1947. Between 1954 and 1979 the deceased work for Imperial Chemical Industries Limited at their plant in Teesside, England, during which time he was again exposed to quantities of asbestos dust.

It is claimed that the deceased began to experience respiratory symptoms in 2003, and on being admitted to hospital in Middlesbrough in September, 2009, was diagnosed as suffering from basal bronchiectasis with fibrosis and mild pleural thickening. It is claimed that he continued to suffer respiratory difficulties until he died in 2011. The action against Imperial Chemical Industries Limited was dismissed, leaving the successors to Scots Shipbuilding and Engineering Company as the only defender.

The applicable law is of importance here as if the claim were to be determined under Scots Law, the children, grandchildren and siblings would all have a right to claim for loss of society whereas these family members would have no equivalent claim under English law.

The pursuers' position is that the applicable law ought to be Scots Law, because it was in Scotland that the exposure to asbestos took place and where the deceased's employment by the defender occurred. Conversely, the defender argued that it ought to be English law as it was in England where the disease developed and where the deceased died.

The Inner House decision

The Inner House considered that if the Defenders' proposition was accepted then a defender operating exclusively in Scotland could find himself subject to the law of a country with which he had no prior connection and secondly that a pursuer who had worked in Scotland and sought to sue his employer, could deprive himself of a claim for damages simply by moving to a foreign country where the law differed.

The Inner House concluded that the applicable law has to be Scotland. This was where the defender's shipyard was located, where the deceased was employed and where he was exposed to and inhaled asbestos dust. Further, as a consequence of these facts the deceased's employer was bound but also entitled to conduct their operations by reference to the requirements of Scots law. Accordingly, they could hardly complain in the event of their failure properly to do so, if they were held responsible for that failure by reference to the then applicable rules of that system.

On the contrary, they would have cause for complaint if they were held responsible by reference to the rules of some other system, the application of which would not have been foreseeable to them at the relevant time. The Inner House has held that the deceased was entitled to look to Scots law for the protection of his interests including his interest in bodily integrity and therefore it might be thought he was entitled to the benefits of such remedies as Scots law affords in the event of these interests not being properly protected.

The Defenders are presently considering whether to appeal the Decision.

What can we learn?

  • If the decision of the Inner House stands, the position will revert to being that where a party has been negligently exposed to asbestos in Scotland prior to 1995, both jurisdiction and the legal assessment of the case, including damages, will be determined by Scots Law.
  • Should that be the case, forum shopping will remain a significant issue. Particularly in fatal cases, it will likely remain in a claimant's interests to seek to raise proceedings against any defender subject to Scots Law given the significantly increased damages that may be recovered.
  • On the other hand, the additional expense of requiring to secure expert opinion on when a disease manifested and potentially requiring preliminary procedure to determine choice of law and the competency of damages claims being advanced maybe avoided.
  • This does not affect claims relating to exposure from 1995, which are governed by the Private International Law (Miscellaneous Provisions) Act 1995 and then by the Law Applicable to Non-Contractual Obligations (Scotland) Regulations 2008, which implemented the Rome II Regulations. As has been pointed out in previous updates, a straight forward reading of the Rome II Regulations suggests that the place where the disease manifests would be the choice of law. It remains to be seen whether this is challenged in due course.