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Scotland legal update: Applicable law in fatal asbestos case

In Scotland, family members of a deceased person have been entitled claim to compensation in terms of s.4(3) the Damages (Scotland) Act 2011 where the death was caused by the negligence of another.  Although similar legislation exists in England under the Fatal Accidents Act 1976, the category of entitled family members under the 1976 Act is far more restrictive with only the executor being entitled to bring a claim.  Given the wide range of potential pursuers under the 2011 Act it is of no surprise that raising proceedings in Scotland, whenever possible, is desirable.  The case of Docherty discusses the applicability of the Damages (Scotland) Act 2011 in an action raised in Scotland against a defender where the negligent acts occurred in England.

Case report

Louisa Docherty & Others v The Secretary of State for Business Innovation and Skills & Imperial Chemical Industries Ltd [2015] COSH 149
Outer House, Court of Session
6 November 2015

A personal injury action was raised by twenty four pursuers against both defenders, seeking damages under the Damages (Scotland) Act 2011.  All pursuers were relatives of the late James Docherty who died as a result of exposure to asbestos with both defenders as a result of which he developed asbestosis and pleural plaques. Exposure with the first defenders was alleged to have occurred in 1941 to 1947.  The pursuers alleged exposure to asbestos with the second defenders from in or around 1954 to 1979 at their plant in Wilton on Teesside.   Counsel for the second defenders argued that the claim against them was irrelevant on the basis that the wrongs complaint of occurred exclusively in England and therefore the 2011 Act could not apply.

It was accepted by all parties that the first defenders had been correctly convened and jurisdiction could therefore be established against the second defenders on the basis that the pursuers sought joint and several liability against them both.  There was no dispute that the issue of jurisdiction was a distinct and separate issue from the applicable law.  It was accepted that the 2011 Act had no force in England and it was also accepted all pursuers with the exception of the first pursuer, in her capacity as executor of the deceased, would be denied a remedy under English law.  There was no dispute that the allegations of negligence against the second defenders all occurred in England and the appropriate remedy under English law was under the Fatal Accidents Act 1976.

Counsel for the second defenders submitted that the remedy sought in the present case was regulated by the lex loci delicti which was England.  The remedy sought under the 2011 had no applicability in England.  It was further submitted that the lex loci delicti applied to actions arising out of exposure to asbestos dust and the distinction between jurisdiction and the correct law to be applied was an important one.  It was submitted that apart from a few years when the deceased worked for the first defenders, he worked, lived and died all his life in Teesside.  It was emphasised that none of the pursuers had any connection with Scotland and the wrong complained of occurred in England.  Counsel for the second defenders submitted it would be wrong that the pursuers should be able to claim damages in Scotland, available under Scottish law for a wrong occurring in England.  

Counsel for the pursuers submitted that there was no dispute that the deceased’s asbestosis condition was a cumulative disease. As such both defenders contributed to the onset and severity of the condition and all exposure led to the death of the deceased.  It was submitted on behalf of the pursuers that had the deceased raised an action whilst still alive he could have pursued both defenders in either Scotland or England and liability could have been established against both on the basis of a joint and several liability or on an apportionment basis against the defenders. It was submitted for the pursuers that it was competent to proceed against both defenders as joint wrongdoers where the disease was a cumulative one.

In reaching his decision, Lord Boyd of Duncansby accepted that the common law position was set out in the case of McElroy v McAllister 1949 SC 110, quoting Lord Cooper at page 135

Pursuers should not be encouraged to improve their position vis-à-vis of their opponents by invoking some secondary forum in order to exact compensation for a type of loss which the primary forum would not regard as meriting reparation.

Applying the ratio in McElroy Lord Boyd determined that a claim for damages against the second defenders under the 2011 must fail.  Further the issue of jurisdiction must not be confused with the application of the proper law and “joint and several liability does not establish the proper law to be applied to the claim”.  Lord Boyd stated that all that meant was that each defender may be liable for the whole sum sued, however it did not provide the basis for how that sum should be quantified.

Lord Boyd held the action as directed against the second defenders was irrelevant and dismissed the action against them insofar as this related to the Second to Twenty Fourth Pursuers.  The pursuer’s solicitors reserved their position to bring a Minute of Amendment on behalf of the first pursuer as executor seeking a claim under the 1976 Act against the second defenders.


For further information please contact Helen Callaghan, Trainee Solicitor on 0141 228 8128 or Caroline Coyle, Associate on 0141 228 8132.

By Helen Callaghan

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.