Mr Docherty worked as a mechanical fitter at Scotts Shipbuilding and Engineering Company in Greenock from about 1941 to 1947. He began to experience symptoms of respiratory difficulties in 2003, after he had moved to England.
Following Mr Docherty's death in 2011, his family members raised an action in delict in Scotland against the Secretary of State for Business, Innovation and Skills (who is now responsible for the liabilities of Scotts Shipbuilding). This was done with a view to benefiting from the provisions of the Damages (Scotland) Act 2011, which allow rights of action to relatives who would have no claim under English law.
The Court looked in detail at the question of choice of law, i.e. which law would determine the case. That question is different to jurisdiction - the Scottish court clearly had jurisdiction, but that did not necessarily mean that Scottish law would be used to determine the case.
Application of Rome II Regulation
The Court of Session firstly considered whether the Rome II Regulation (no. 864/2007) applied in this case. The general position under the Regulation is that where a delict has occurred, any action in relation to it should be determined according to the law of the country in which the damage occurs. That is, in relation to a claim of this sort, in the country where the individual's injuries have materialised
The court held that the Rome II Regulation was not relevant to this case, as it only applies to "events giving rise to damage" which have occurred after its entry into force on 11 January 2009. In this case, the event giving rise to such damage - the alleged negligent exposure to asbestos - occurred long before that date.
Application of the Private International Law (Miscellaneous Provisions) Act 1995
Under section 11 of this Act, if the events constituting a delict arise in different countries (i.e. if negligent exposure to asbestos occurs in one country and resultant injury/ death materialises in another), the general rule is that the law of the country where the individual was when they sustained the injury is to apply.
Again, however, the court held that this Act had no application to the current case. Per its section 14, it does not apply to acts or omissions giving rise to a claim occurring before May 1, 1996.
Pre-1995 Act common law position
The court held that the matter in dispute in this case fell to be determined by the common law as it existed before the coming into force of the 1995 Act. Referring to a number of cases on inhalation of harmful dust, Lord Tyre held that a cause of action in delict does not arise unless and until there has been both a wrongful act and a resultant injury. In this case, there was no cause of action arising from exposure to asbestos dust until injury had been sustained. Accordingly, the action ought to be determined according to the law of the jurisdiction where the injury had materialised, rather than where the alleged negligent act or omission occurred.
As a consequence of English law applying to the case rather than Scots law, the pursuers' case, insofar as based upon the Damages (Scotland) Act 2011 was held to be irrelevant.
This case is helpful in providing clarity on the pre-1995 Act common law position on conflicts of law in delict cases. As detailed above, different rules apply depending on the dates of the facts giving rise to a delictual claim and the dates on which symptoms arising from that delict begin to materialise. The end result is that those family members who can establish that a relative was negligently exposed to a harmful substance in Scotland after May 1 1996 but before 11 January 2009 will generally be able to avail themselves of the favourable terms of the Damages (Scotland) Act 2011, irrespective of where that relative lived when they began to show symptoms of asbestos-related illness. However, those with a relative who was negligently exposed in Scotland before May 1 1996 or after 11 January 2009 and whose symptoms began to materialise in another jurisdiction will generally be precluded from doing so. However, this will, of course, depend on all of the relevant circumstances.
How does this affect quantum of the claim?
It is important to note that where a pursuer has choice of jurisdiction between Scotland and England in these types of cases, they can obtain an advantage by raising their action in a Scottish court. This is because even where English law is to apply, it is used only to determine "substantive" issues (such as liability) rather than "procedural" ones. Quantum of damages is regarded as "procedural", meaning pursuers raising their action in Scotland can have the value of their claim determined by the court in accordance with Scots law, which is generous in comparison with English law in this area.
Is this case binding on all future cases?
We understand that the Docherty case is being appealed. We await the appeal judgment with interest. Until then, this case will be persuasive in any other similar cases.
Morton Fraser has extensive experience of advising on asbestos exposure claims. If you would like any further information in this regard, please contact Jenny Dickson or your usual Morton Fraser contact.