Asbestos Exposure and Choice of Law – Docherty Revisited

This blog post is by James Beeton of 12 King’s Bench Walk.

In May we considered the decision of the Outer House of Scotland’s Court of Session in Docherty v Secretary of State for Business, Innovation and Skills [2018] CSOH 25 in this blog post. The question for the court to consider may be summarised as follows:

‘Where an individual, while working in Scotland, inhales asbestos fibres that cause him injury after he has 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?’

In the Outer House, Lord Tyre had held that the case fell outside the temporal scope of Rome II and the Private International Law (Miscellaneous Provisions) Act 1995. The result was that the applicable law depended on the locus delicti (i.e. the place of the wrong) pursuant to the common law. Lord Tyre considered that the locus delicti was the place where the injury developed and not where the negligent act or omission occurred. This meant that English law applied to the claims for damages (with significant consequences for some of the claimants, as discussed in the previous blog).

That decision has now been overturned by the Inner House on appeal ([2018] CSIH 57). The locus delicti is the place of exposure to asbestos – not the place where the eventual injury develops.

Decision of the Inner House

Lord Brodie (with whom the Lord President and Lord Menzies agreed), noted that linguistic analysis of the term locus delicti was unlikely to assist the court: the term was ‘a concept rather than a matter of pure objective fact. Identifying it involves a mixed question of fact and law’ (at [33] and [34]). The position in Scots law had never been authoritatively settled prior to the introduction of the 1995 Act and therefore required fresh consideration by the Inner House on this occasion.

Whilst he agreed with Lord Tyre’s conclusion in the Outer House that the cause of action did not arise until injury had been suffered, Lord Brodie held that he had erred in also concluding that the deceased’s presence in England when the ‘final event’ occurred meant that the relevant locus delicti was England ([36]). The second conclusion did not necessarily follow from the first: ‘why should it matter where the deceased happened to be when he succumbed to what was to prove a fatal injury?’ ([38]).

In fact, the relevant features of the case all pointed to the locus delicti being Scotland: this was where the shipyard was located; it was where the deceased was employed; it was where he was exposed to and inhaled asbestos dust; and it was in consequence of those facts that the deceased’s employer was bound to conduct their operations by reference to the requirements of Scots law.

On the other hand, the employer could well object if they were held responsible by reference to the rules of some other system – a real possibility on the basis of Lord Tyre’s interpretation of the locus delicti ([40]). This ‘surprising’ consequence, which undermined a central purpose of the locus delicti rule, was also specifically raised by the Lord President of the Inner House at the beginning of his concurring judgment (at [2]).

Just as the employer was entitled to conduct its operations by reference to Scots law, ‘the deceased was entitled to look to Scots law for the protection of his interests, including his interest in bodily integrity, and therefore, it might be thought, he was entitled to the benefit of such remedies as Scots law affords in the event of these interests not being properly protected.’ The effect of Lord Tyre’s decision was to deprive the deceased of this protection.

In reality, Lord Brodie considered that the issue of geographical location was so unconnected with the development of injury and consequent crystallisation of a cause of action that ‘one might even go the distance of questioning whether there is truly any foreign element in this case at all’ ([41]). The appeal was therefore allowed with the result that Scots law applied.

Comment

The decision of the Outer House came as something of a surprise to the insurance industry given the prevailing market practice of adopting the place of exposure as the relevant locus for choice of law purposes. This decision therefore represents a return to what may be considered normalcy.

Our previous post commented that Lord Tyre was right to conclude that the cause of action would only develop where damage was suffered. Although he agreed with that conclusion, Lord Brodie sidestepped the further conclusion that this was also sufficient to determine the locus delicti. In his view, the place where the cause of action crystallised did not determine the applicable law: a broader analysis capable of taking into account a variety of factors was required.

Of central importance to this conclusion was the need for employers to be able to rely on their adherence to domestic health and safety regimes in Scotland, rather than being held to a potentially higher (and unforeseeable) foreign standard. Similarly, there was no good reason for depriving the deceased of the protections and remedies offered by Scots law where this governed the work he was doing when exposure took place.

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