29 March 2018
Those who were disappointed with the thought that the Six Nations would be the last match between England and Scotland for some time will be pleased to hear that a less glamorous contest played out recently in the Court of Session. However, on this occasion it was England, or rather the law of England, which was successful.
It is the latest judgment in Docherty & Ors v Secretary of State for Business, Innovation and Skills & Imperial Chemical Industries which will have far reaching consequences for multi jurisdiction long tail disease claims. The action was raised by 24 family members, including the deceased’s executor, seeking damages for, amongst other things, loss of society. What sets this case apart is that the deceased, and his family, were resident in England and the second defenders, Imperial Chemical, had allegedly exposed the pursuer to asbestos within that jurisdiction. The action was raised in Scotland to take advantage of the much wider scope given to loss of society claims both in terms of the damages awarded and who has title to sue. The matter was therefore a good example of an attempt at forum shopping.
Progress of the action
The case has already been the subject of two decisions from the Outer House, (comment on which can be found on BTO’s website: here and here). The first dismissed all but the first pursuer’s (the wife’s) case against the second defender. This was on the basis that the second defender’s liability fell to be decided by the law of England. However, the wife did not plead a case against them in terms of English law and the matter was continued to allow the pursuer to amend. The second judgement refused that amendment. The action against the second defender was therefore dismissed.
The Judgment
The case came before Lord Tyre for a legal debate on the deceased’s relative’s claims against the first, and now only, defender. The defender had allegedly exposed the deceased to asbestos at their premises in Scotland. However, the deceased had only developed asbestos related illness when he was living in England. The question for the court was, therefore, which law was applicable when assessing the claims by his executor and relatives. It was a matter of agreement that only the deceased’s executor had a valid claim under the law of England.
Lord Tyre required to consider whether the applicable law is determined by the Rome II Regulation. Or, if that was answered in the negative, what the applicable law was according to the common law.
The decision
In terms of Rome II, Lord Tyre drew a distinction between the event giving rise to damage, and the damage itself and any other indirect consequence. He considered that the event giving rise to a claim in this case was the exposure to asbestos which occurred in the 1940’s. As this was prior to the Regulation coming into force, the question of conflict required to be answered by reference to the common law.
In considering the common law case, Lord Tyre holds that Scots Law will not recognise a claim unless it is recognised by the lex loci delicti or the law of the place where the delict occurred. He went on to observe that a wrong only becomes actionable once there has been actual damage. He refers to Brown v North British Steel Foundry Ltd 1968 SC 51 which was a case relating to exposure to dust causing pneumoconiosis. The Court in that case held that the presence of dust in the lungs of the pursuer was not an injury in itself. Lord Tyre places reliance on this and finds support for that position by reference to the Rothwell decision which held that pleural plaques were not actionable.
Lord Tyre, therefore, concluded that the delict only occurs where the injury takes place and this determines the applicable law. As the deceased was diagnosed and died in England, the pursuers’ claims fell to be determined by English Law. In that event all the pursuers, bar the executors of the deceased’s estate, had their claims dismissed.
Thoughts and conclusions
All three decisions in this case are important reading for those involved in asbestos related actions where exposure is alleged to have occurred in different jurisdictions. The analysis of the common law pre 1995 Act is useful as almost all long tail disease claims will fall to be considered in those terms if a conflict of laws exists.
The judgement does, however, raise a number of issues. For example, it will affect those who may have been exposed to asbestos in Scotland, but have moved to England and are currently well. If Lord Tyre is correct, then they may wish to consider moving to Scotland to protect any future claim. There would also be a question as to what would happen to a pursuer in this situation who developed pleural plaques in England but subsequently moved to Scotland where he developed a further condition - could his claim be time barred? The reverse situation could also be problematic. If a person exposed to asbestos in England develops pleural plaques in Scotland, can he then raise a claim in Scotland against his English employers (assuming the court has jurisdiction)? There may also be a question as to applicable law in that scenario for claims raised in England for a Scottish resident, although the position relating to applicable law is quite different.
It will be welcomed by insurers and defenders that an attempt to forum shop, and significantly increase the sums sued for, has faced significant hurdles in the Scottish courts. However, the case is being appealed to the Inner House and given the issues raised, it may well reach the Supreme Court. Whatever the outcome of those appeals, the decisions will be watched with interest by those dealing with long tail disease claims.
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Lewis Richardson |