On 6 November 2015 Lord Boyd of Duncansby’s Opinion was issued in the case of Louisa Docherty & Others v Secretary of State for Business Innovation Skills and Imperial Chemical Industries Limited 2015 CSOH 149.
The First Pursuer’s husband had died as a result of exposure to asbestos. She raised a Personal Injury Action along with another twenty-three Pursuers who were all relatives of her late husband, James Docherty. Mr Docherty had died on 30 September 2011. The First Pursuer sued as an individual and as Executrix on her late husband’s Estate.
The Pursuers sought damages from both Defenders jointly and severally under the Damages (Scotland) Act 2011.
The late Mr Docherty had been a Mechanical Fitter and an Apprentice Marine Engineer for approximately six years in the 1940s. The First Defenders had succeeded to the liabilities of his then employers. It was claimed he was exposed to asbestos dust.
He was then employed as a Maintenance Fitter by the Second Defenders ICI from 1954 to 1979 in Wilton on Teeside and again was exposed to asbestos dust. As a result it was averred he had developed asbestosis and pleural plaques.
The case called for a Procedure Roll Hearing (legal argument) on a plea by ICI that the case against them was irrelevant because the wrongs, as directed against them, had occurred exclusively in England. As a result the 2011 Act did not apply.
It was agreed that jurisdiction itself was not in dispute. ICI were subject to the jurisdiction of the Scottish Courts because the Pursuers were seeking joint and several liability against both Defenders.
Similarly there was agreement that jurisdiction was separate from the applicable law, that the 2011 Act had no force in England and that under English Law the only Pursuer with a remedy would be the First Pursuer, the widow, in terms of the Fatal Accidents Act 1976. In respect of the Second Defenders, ICI, employment had occurred in England.
Given that the averments against ICI related to the period from 1954 to 1979 it was argued that whether or not there was any liability was a matter of common law. Any alleged fault by ICI had occurred before the implementation of the Private International Law (Miscellaneous Provisions) Act 1995 or the Rome II Regulations. On that basis the remedy was governed by the lex loci delicti which was England. Under English law only the First Pursuer, as the late Mr Docherty’s widow, would have a claim under the 1976 Act.
There was no dispute that the Scottish Courts had jurisdiction but that was a separate matter from liability and the question for the Court in relation to ICI was “For what were they liable?” The fact that joint and several liability was claimed on the part of both Defenders had no bearing on the applicable law.
The Pursuers’ argument was that liability was at common law which was said to be essentially the same in both Scotland and England. If the late Mr Docherty had raised an Action while still alive he could have sued in Scotland or England.
Lord Boyd considered that the matter had to be decided under the common law as the matters said to give rise to liability predated 1995.
He referred to McElroy v McAllister 1949 SC 110 and to Lord Cooper statement that the Scottish Courts wouldn’t recognise any specific jus actionis (right of action) which was denied to a Pursuer by the lex loci delicti. Lord Cooper had gone on to say “In other words, in considering whether the act or omission complained of is “actionable” by the lex loci delicti, the Scottish Courts will extend it to the further question – on whom does the lex loci delicti confer a jus actionis, and for what?”
Lord Boyd therefore took the view that in applying McElroy, a Damages claim against ICI under the 2011 Act failed.
It had been argued for the Pursuers that although McElroy was a correct statement of the common law, it didn’t apply in the current case because there were two wrongs which contributed to one result. Lord Boyd however said that was a jurisdiction point, ie. the Court would accept jurisdiction on the basis of joint and several liability between the two Defenders.
It was further argued that if the Court accepted Defenders could be jointly and severally liable then the Court should accept that the lex fori (Scotland) would apply to a Damages claim. Lord Boyd said this confused jurisdiction with the application of the proper law. “Joint and several liability does not establish the proper law to be applied to the claim. All it means is that each is liable for the whole sum sued for.” He went on to say “You cannot have joint and several liability if you have not first established individual liability for the claim.”
Lord Boyd also pointed out that under the 2011 Act Section 4 claims vested in the relatives of the deceased who were then the Pursuers. In England, under the 1976 Act, the right to bring an Action was at the instance of the Executor or Administrator of the deceased and the number of people who could make a claim in England was much more limited.
In addition if the Pursuers’ argument were correct it would mean that all the Pursuers who had no claim in England for a tort committed in England could bring an action for damages in Scotland and obtain a remedy which wasn’t available under English Law.
He concluded with a further quote from Lord Cooper, “Pursuers should not be encouraged to improve their position vis-à-vis of their opponents by invoking some secondary forum in order to exact compensation for a type of loss which the primary forum would not regard as meriting reparation.”
He went on to dismiss the Action at the instance of the Second to Twenty-fourth Pursuers against the Second Defenders. He also proposed to dismiss the widow’s claim but allowed the Pursuers’ representatives time to consider whether they wished to lodge a Minute of Amendment to bring a claim under the 1976 Act.