Asbestos and the choice of law

In Docherty’s Executors & Others v Secretary of State for Business, Innovation and Skills (2018) CSIH57 the Inner House (Appeal Court) overturned the earlier decision of a Lord Ordinary by deciding that the law of the country where the harmful event occurred determined the appropriate lex loci delicti. The original decision had been to the effect that the appropriate lex loci delicti was where the loss ultimately occurred.

In short, the Inner House decided that what was relevant was the alleged breach of duty being the actual exposure to asbestos, rather than where the Pursuer happened to stay at the point in time when the condition developed/appeared.

The decision relates to exposure occurring before 1995 as the Law Applicable to Non Contractual Obligations (Scotland) Regulations 2008 applied the Rome II Regulations. Although this point has not been subject so far to any challenge or clarification in the Scots Courts, it appears from Rome II that the place where the disease appears would be the relevant forum.

In the action it was said that the late Mr Docherty had been exposed to asbestos fibres while working in Greenock between 1941 and 1947. Thereafter he worked for ICI in England between 1954 and 1979. Both employments resulted in exposure to asbestos.

It was averred that symptoms appeared in 2003 while he was still living in England.

The Pursuer’s argument was that Scots Law was applicable because exposure had taken place in Scotland. The Defender argued that as the condition had developed in England, English Law should be applied.

The Court took the view that if the Defender’s argument was correct a person who had worked in Scotland and later attempted to sue his then employer at the relevant time might have no right or only a restricted right to a claim for damages. He might stay in a country where there was no right to make such a claim, or such rights as there might be were different from those under Scots Law.

On the same basis, the employer (or indeed any relevant Defender) who had operated a business only in Scotland could ultimately be subject to the law of a place with which he had no connection of any sort.

Given the Defender’s business (a shipyard) was in Scotland the late Mr Docherty was employed there and it was in that place that he was exposed to harm (ie, asbestos dust), then Scots Law was applicable.

As a result of this decision claims involving exposure before 1995 will be decided by Scots Law both in respect of the liability and damages.

It remains to be seen whether or not there will be an attempt to appeal this decision to the Supreme Court.

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