Can you sue in Scotland to obtain a remedy not available in England?

Summary

Twenty-four pursuers (claimants) raised a claim in the Scottish courts under the Damages (Scotland) Act 2011 (“the 2011 Act”). The alleged wrong complained of occurred in England, but English law would have denied a remedy to all but one of the pursuers, the deceased’s widow. The Scottish court had to decide whether the claim was validly made.

Docherty & others v Secretary of State for Business, Innovation & Skills and Imperial Chemical Industries

Background

The twenty-four pursuers were relatives of the late James Docherty (“the deceased”). It was alleged that the deceased was exposed to asbestos dust while working for the defenders from 1941 to 1947 and 1954 to 1979 respectively.

There was no dispute that the Court had jurisdiction with regard to the first defenders. Jurisdiction was established against the second defenders on the basis of joint and several liability with the first defenders. It was also agreed that the question of jurisdiction was distinct from the question of applicable law.

Why raise proceedings in Scotland?

The pursuers’ claims against the second defenders were based on alleged exposure to asbestos dust occurring exclusively at its plant on Teeside. However, English law, in the form of the Fatal Accidents Act 1976 (“the 1976 Act”), would not provide a remedy to any of the pursuers, with the exception of the first pursuer, the widow. The claims were therefore raised under the 2011 Act, which does not apply in England and provides for claims from a broader range of potential pursuers.

The applicable law

The question of the law which should apply to determine the claims fell to be decided at common law as any wrongdoing occurred before the coming into force of the Private International (Miscellaneous Provisions) Act 1995 or the Rome II Regulations.

It was argued for the second defenders that the Pursuers’ remedy was regulated by the law of England. It was wrong in principle that the pursuers should be able to claim damages in Scotland, available under Scottish law for a wrong committed in England simply because jurisdiction was established in Scotland.

The pursuers argued that the question had to be addressed from the standpoint of the deceased and that it was competent to proceed against both defenders as alleged joint wrong-doers where the disease was a cumulative one and each contributed to a single result. It was argued that the court should not take a technical approach to the differences between the 2011 Act and 1976 Act.

The decision

The judge, Lord Boyd of Duncansby, held that, applying the common law, as set out by Lord Cooper in McElroy v McAllister 1949 SC 110, a claim for damages against the second defenders under the 2011 Act must fail:

“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.” (McElroy, page 135)

The second to twenty-fourth pursuers’ claims were accordingly dismissed. The first pursuer’s claim would also have been dismissed, but, as that action may not have been irrelevant under the 1976 Act and, as the pursuer’s agents had expressed an intention to amend to bring a claim under the 1976 Act, the matter is to be considered by the Court later this month.

Comment

Given that many employees engaged in heavy industry have worked in locations across the United Kingdom, industrial disease claims are typically brought against a large number of defenders. Where the alleged wrong occurred in a separate jurisdiction to that where the court action is raised, regard must be had to the governing law to determine any claim raised by that employee against their employers. Particular regard has to be had where the employee is deceased and the claim is raised by their relatives, as there is a distinction between the treatment of claims by relatives of a deceased in Scotland and in England/Wales. Scotland has, arguably, a more generous system for dealing with the claims raised by the relatives of a deceased, which may encourage the raising of claims here. However, this case is a reminder that the forum does not always determine the governing law to be considered in determining the action.