Scots law governs claim though asbestosis developed in England, judges rule
A claim relating to the death of a man exposed to asbestos at work in Scotland from 1941 to 1947, and who then worked in England from 1954 to 1979 where he later contracted asbestosis, was stiil governed by Scots law as that of the place where the harmful events occurred, the Inner House has ruled.
Lord President Carloway, Lord Menzies and Lord Brodie allowed an appeal by the executors and family of James Docherty against of the decision of the Lord Ordinary, Lord Tyre, that English law applied to the claim and that the restrictive English rules on recovery of damages on a death therefore applied.
The deceased was employed by Scotts Shipbuilding & Engineering Co, at Greenock, from 1941 to 1947. He was employed by Imperial Chemical Industries Ltd in Teesside, England from 1954 to 1979; from in or about 2003, when he was still living in England, he began suffering from respiratory problems which continued until his death, also in England, on 30 September 2011. Most of the relatives who sued were resident in England. The action had previously been dismissed as brought against ICI as the only claim that could have been pled (but was not) was under the Fatal Accidents Act 1976, by Mr Docherty's widow who had also since died.
The defender pled that the claim against Scotts was also governed by English law as the law of the place of the delict, since a cause of action in delict did not arise unless and until there had been both a wrongful act (injuria) and a resultant injury (damnum). The Lord Ordinary held that the case law established that the place of the harmful event was where the injury took place "and not, if different, where the antecedent negligent act or omission occurred”.
In his opinion Lord Carloway said it was clear that this proposition would have "surprising consequences". A defender operating exclusively in Scotland could find himself subject to the law of a country with which he had no prior connection; and a pursuer, who had worked in Scotland and sought to sue his employer, could deprive himself of a claim for damages by the act of going to a foreign country where the law differed.
While in some cases a single act in one country might cause harm only in another country or countries, that was not the position here. "The delict (or quasi-delict) is the act of the defender in exposing the deceased to asbestos. So far as this action is now concerned, this occurred in Scotland, which is thus the locus delicti [place of the delict]. Scots law therefore, not surprisingly, governs the defender’s operations in Greenock relative to their workforce." After examining the case law for himself, he concluded: "In short, the focus is on the locus of the defender’s actions and not that where injuria meets damnum, thus giving rise to an action of damages... Exposure to asbestos is, in the circumstances averred, a delict and quasi-delict which is completed, and incidentally actionable by interdict, whether or not an injury is proved to have been sustained."
Lord Brodie concluded: "As matters have turned out, what was necessary to give rise to the pursuers’ causes of action was the presence of the deceased in Scott’s shipyard in Greenock in circumstances in which he inhaled asbestos dust. That is all that the pursuers have to prove in relation to a specific place. That the deceased was in England when he developed asbestosis is of importance to the pursuers’ cause of action only to the extent of the fact that the pursuers must prove that the deceased developed asbestosis. They need not prove where he was when that occurred. Indeed, one might even go the distance of questioning whether there is truly any foreign element in this case at all."
Lord Menzies agreed with both his colleagues.