Scotland: Forum Shoppers Welcomed Back

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...