Docherty's Executors v Secretary of State for Business, Innovation and Skills
| Jurisdiction | Scotland |
| Judge | Lord Tyre |
| Judgment Date | 22 August 2018 |
| Neutral Citation | [2018] CSIH 57 |
| Date | 22 August 2018 |
| Court | Court of Session (Inner House) |
| Docket Number | No 2 |
[2018] CSIH 57
First Division
Lord Tyre
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Jurisdiction — Lex loci delicti — Exposure to asbestos in Scotland but onset of symptoms and death occurring in England — Whether Scots law or English law fell to be applied as the lex loci delicti
Docherty's Executors raised a personal injuries action in the Court of Session seeking damages under the Damages (Scotland) Act 2011 or alternatively under English law. The cause called on the procedure roll before the Lord Ordinary (Tyre). At advising, on 21 March 2018, the Lord Ordinary dismissed the action founded upon the 2011 Act and allowed a proof before answer on the pursuers' alternative case ([2018] CSOH 25). The pursuers reclaimed.
Section 4 of the Damages (Scotland) Act 2011 (asp 7) (‘the 2011 Act’) provides that relatives of a deceased person are entitled to recover damages, inter alia, in respect of loss of support and distress and anxiety as a result of the death of the deceased.
The executors and relatives of the deceased raised a personal injuries action against the defender, who had assumed the liabilities of Scotts Shipbuilding and Engineering Co Ltd, in respect of the deceased's exposure to asbestos while employed at Greenock docks between 1941 and 1947. The deceased developed respiratory problems and subsequently died while living in England. The pursuers sought damages under sec 4 of the 2011 Act or alternatively under English law. The defenders challenged the relevancy of the pursuers' averments on the basis that English law was the lex loci delicti. The Lord Ordinary (Tyre) held that English law was the lex loci delicti and dismissed the action founding upon Scots law, and allowed a proof before answer on the pursuers' alternative case ([2018] CSOH 25). The pursuers reclaimed.
The pursuers argued that the lex loci delicti referred to the place where the wrongful act occurred and the Lord Ordinary erred in holding that it related to where the harmful event occurred. The pursuers also argued in the alternative that if English law governed the claim there would be a renvoi back to Scots law as English choice of law rules would hold that Scots law should govern.
The defender contended that there was no completed delict until harm was caused. The harm occurred where the deceased first experienced symptoms, which was in England, and that accordingly English law was the lex loci delicti.
Held that: (1) the lex loci delicti was the place of the act of the defender which constituted the wrong, and not the place where any resultant harm happened to emerge (paras 14, 17, 21, 38); (2) the delict was the act of the defender in exposing the deceased to asbestos which occurred in Scotland, which was thus the locus delicti, and wrongful exposure to asbestos in Scotland was, in an action in this jurisdiction, governed by Scots law (paras 14, 18, 21, 40); and reclaiming motion allowed.
Observed that the pursuers' alternative argument that, if English law had fallen to be applied there would be a renvoi back to Scots law, on the basis the English choice of law rules would consider Scots law to be appropriate to govern the claim, was highly problematic, but it was not necessary to decide the question as it was unsupported by any averments as to English law (paras 19, 21, 43, 44).
Joseph Evans & Sons v John G Stein & Co (1904) 7 F 65, McElroy v McAllister1949 SC 110 and Rothwell v Chemical and Insulating Co Ltd[2008] 1 AC 281applied.
The cause called before the First Division, comprising the Lord President (Carloway), Lord Menzies and Lord Brodie, for a hearing on the summar roll, on 3 July 2018.
At advising, on 22 August 2018—
Lord President (Carloway)—
[1] The pursuers sue the defender in respect of the death of the late James Docherty. If the claim were to be determined under Scots law, it is probable that the damages available would be greater than those under English law, because of the competency of claims by relatives in terms of sec 4(3)(b) of the Damages (Scotland) Act 2011 (asp 7) (‘the 2011 Act’). It is not disputed that the question to be determined is: what is the lex loci delicti? Put simply, the pursuers say it is Scots law, because it was in Scotland that the exposure to asbestos in the employment of the defender occurred. The defender says it is English law, because it was in England that the disease developed and where the deceased died.
[2] It is immediately clear that the defender's proposition, which was accepted by the Lord Ordinary, would have surprising consequences. First, a defender operating exclusively in Scotland, could find himself subject to the law of a country with which he had no prior connection. Secondly, 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.
[3] The first pursuers are the executors nominate of the late widow of the deceased and, as such, executors of the deceased by virtue of sec 7 of the (English) Administration of Estates Act 1925 (15 & 16 Geo 5 cap 23). The remaining 23 pursuers are relatives of the deceased. They are members of his immediate family (or in one case the executor of such a relative) and thus persons having title to sue in respect of the death of the deceased in terms of secs 3 and 4 of the 2011 Act. The deceased was employed by Scotts Shipbuilding and Engineering Co Ltd, at Greenock, from 1941 to 1947. The defender has assumed the liabilities of that, now defunct, company. Originally the pursuers also sued Imperial Chemical Industries Ltd, as second defenders, in respect of the deceased's later exposure to asbestos, during the years 1954 to 1979, in...
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