Case law update: choice of law and forum shopping in asbestos litigation

28.03.18

An Opinion issued by Lord Tyre in the Court of Session last week provides that the applicable law for an asbestos-related claim is the law of the country where the “injury occurred”, as opposed to the country of exposure to asbestos dust. Due to the higher damages awards in fatal cases, and because plaques are compensatable in Scotland, the Opinion in Docherty v Secretary of State, the most recent chapter in a long-running case, will have significance for those involved in the defence of disease claims, particularly asbestos litigation. 


With the law differing significantly between Scotland and England in asbestos litigation, we often require to advise clients on whether Scots or another law (typically English law) applies to a particular claim. Under Scots law, pleural plaques claims are actionable, and the damages regime is much more generous for fatal claims. This often leads to a clamour amongst claimants to have Scots law applied to their asbestos-related cases. This update is not the place for a full exploration on conflict of laws and jurisdiction, but it is important to keep in mind three things: 


(i)      applicable jurisdiction is distinct from applicable law. A defendant can be sued in Scotland, however it does not necessarily follow that Scots law applies to that defendant; 
(ii)     (ii) the legislation and conventions relating to applicable law for personal injury cases are not retrospective and, for most asbestos claims, applicable law will be determined in relation to the common law; and 
(iii)    (iii) in multi-defendant cases, different laws can apply to different defendants. 


We have defended a number of cases on the basis that, despite the Scottish courts having jurisdiction, English law applies to a particular defendant with the result that either (depending on the type of claim) the claim for pleural plaques fails, or that the heads of damages under English law apply.   


This was tested in the case of Docherty v Secretary of State for Business Innovation and Skills and Imperial Chemical Industries Limited. The late Mr Docherty was exposed to asbestos dust in his employment in a Scottish shipyard and then by ICI in England. It was alleged that he died of asbestosis, and his 23 family members raised proceedings in Scotland, including claims for loss of society, in 2014.  Following a debate in 2015, Lord Duncansby held that the case against ICI was subject to English law. The jurisdiction of the Scottish courts to hear the claim against ICI and the fact that the claimants sought a joint and several judgement did not affect that. Jurisdiction and choice of law were distinct. 


With the family claims against ICI no longer being pursued, their case against the successor of the Scottish shipyard nevertheless continued. The shipyard was a Scottish company, with the exposure occurring in Scotland. However, by the time that Mr Docherty developed a compensatable  condition he was resident in England. For that reason, Lord Tyre has now held that the claim against the successor of the shipyard is also governed by English law. The cause of action in delict (tort) does not arise unless and until there is both a wrongful act and resultant injury. The place of the harmful event (the locus delicti) is where “the injury takes places” and not, if different, where the negligent act or omission occurred.

 
As a result, the loss of society claims by the 23 family members failed. The family claims would have been limited to an English bereavement award for the late Mr Docherty’s widow, had the court allowed the claimants to introduce that head of claim late (more on this point is found here).


The significance of Lord Tyre’s Opinion this week is that the claim, which was potentially very expensive under Scots law, is now a lot less expensive under English law. On a very broad brush basis, 23 loss of society claims, whilst very much depending on the individual circumstances/relationships, could foreseeably have exceeded £500,000. These claims have now been struck out. 


The only claim that survived was that brought by the late Mr Docherty’s executor, which comprised transferable solatium (general damages); services/care provided to Mr Docherty prior to his death, and funeral expenses. 


The case is of wider significance and interest for the following reasons:

  1. In the first instance – when does “injury occur”? This is not a straightforward question in asbestos claims and it was the subject of discussion in the “Trigger Litigation” in the Court of Appeal. The answer can be when a malignant tumour is first created, or it can be when identifiable symptoms first appeared. These two events can often occur 10 years apart. One can imagine very difficult evidential questions being raised when someone changes his or her country of residence a few years prior to diagnosis. 
     
  2. Claimants employed/exposed to asbestos dust outside of Scotland could find that their claim is subject to Scots law if their disease developed in Scotland. The resultant additional liabilities may come as a surprise to insurers and employers. The converse is of course also true, as was the case with Mr Docherty, which may of course lead to savings in the defence of claims.
     
  3. This case will not be binding on the English courts. However, if it is followed in England then we could see the odd situation where the English courts are applying Scots law to claims brought by current Scottish residents, who were exposed to asbestos in England, by English employers.
     
  4. At the time of writing we are unaware of whether Lord Tyre’s Opinion is being appealed. Watch this space.