[2015] CSOH 149




In the cause





First defenders;


Second defenders:

Pursuers:  Marshall, Solicitor Advocate;  Thompsons

First Defenders:  No appearance

Second Defenders:  Dunlop QC, Pugh;  CMS Cameron-McKenna

6 November 2015

[1]        This is a personal injury action in a fatal asbestos case.  There are 24 pursuers, all relatives of the late James Docherty who died on 30 September 2011.  The first pursuer is his widow as an individual and as executrix nominate on the deceased’s estate.  There are two defenders namely the Secretary of State for Business Innovation and Skills as successors to the rights and liabilities of Scott’s Shipbuilding and Engineering Company Limited and Imperial Chemical Industries Limited.  The pursuers all seek damages from the defenders jointly and severally under the Damages (Scotland) Act 2011 (“the 2011 Act”). 

[2]        The pursuers plead that the deceased was a mechanical fitter and served an apprenticeship as a marine engineer with the first defenders in or about 1941 to 1947.  They aver that in the course of that employment he was exposed to asbestos dust.  The pursuers then aver “from in or about 1954 to 1979 the deceased was employed as a maintenance fitter by the second defenders at their plant in Wilton on Teesside”.  There are similar averments that in the course of that employment he was exposed to further substantial quantities of asbestos dust.  It is said that as a result of these exposures the deceased developed asbestosis and pleural plaques. 

[3]        The case came before me on the procedure roll on the second defender’s plea that the case as directed against them was irrelevant on the basis that the wrongs complained of, so far as the second defenders were concerned, occurred exclusively in England.  Accordingly the 2011 Act could not apply. 

[4]        Notes of argument were submitted on behalf of the second defenders and the pursuers and I heard oral argument in supplement of these submissions.  A number of matters were not in dispute.  Both Mr Dunlop, senior counsel for the second defenders and Mr Marshall, solicitor advocate for the pursuers agreed that the court has jurisdiction over both parties.  The first defenders were validly convened and jurisdiction was established against the second defenders on the basis that the pursuers sought joint and several liability against them both.  Parties were also agreed that the question of jurisdiction was distinct from the applicable law.  There was no dispute that the 2011 Act had no force in England.  Nor was there any dispute that English law would deny a remedy to any of the pursuers with the exception of the first pursuer, the widow.  The remedy in English law was under the Fatal Accidents Act 1976 (“the 1976 Act”).  Finally there was no dispute that all the matters complained of against the second defenders occurred in England at their plant on Teesside.  I should also note that Mr Dunlop did not insist on his plea of forum non conveniens


Submissions for the second defenders
[5]        Mr Dunlop submitted that the issue fell to be decided at common law;  any alleged wrongdoing by the second defenders occurred before the coming into effect of the Private International Law (Miscellaneous Provisions) Act 1995 or the Rome II Regulations.  The pursuer had to demonstrate double actionability.  The remedy to which she was entitled was regulated by the lex loci delicti which was England;  Naftalin v London, Midland and Scottish Railway Company 1933 SC 259, McElroy v McAllister 1949 SC 110, and in particular Lord President Cooper at page 135.  The remedy which was sought in this case was under the 2011 Act which had no applicability in England.  Under English law the only person who would be entitled to an award of damages was the first pursuer, the widow of the deceased.  The claim that could be sought in English law was under the 1976 Act.  An action to enforce a liability were applicable substantive law is English law is not an action under the 2011 Act;  see Lord Sumption in Cox v Ergo Versicherung AG 2014 UKSC 22 at paragraph 20.  There was nothing unique about exposure to asbestos.  The lex loci delicti applied to actions arising out of exposure to asbestos dust;  Durham v T & N Plc (unreported, CA 1 May 1996), Connelly v RTZ Corp and another [1999] CLC 533.  It was important to distinguish between jurisdiction and the proper law to be applied.  It was not disputed that the Scottish court had jurisdiction over the second defenders.  The question was for what were they liable?  It made no sense to find that the potential liability of the second defenders to a pursuer depended on being able to establish jurisdiction in Scotland.  The deceased had worked for the first defenders for a few years in the 1940’s.  Otherwise he had lived and died all his life in Teesside.  None of the pursuers had any connection with Scotland.  The wrong complained of sofar as the second defenders were concerned occurred in England.  It was wrong in principle that the pursuer 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.  It was never sufficient to ask if A owes B a duty of care.  The issue was for what was the second defenders legally responsible;  see Lord Millet in Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309 at paragraphs 105 to 107, Lord Hoffmann in Harding v Wealands [2007] 2 AC 1 at paragraphs 24 and 25, Lord Mance in Cox v Ergo at paragraph 41. 

[6]        Mr Dunlop submitted that the question of joint and several liability which was raised by the pursuers said nothing about what was the applicable law.  He had no difficulty with the case of Kalfelis v Schroder 1988 ECR 557 which the pursuers cited for the proposition that it is expedient to determine actions where there is a connection between different defenders together in order to avoid the risk of an irreconcilable judgment arising from separate proceedings.  It made sense to avoid double counting if claims were pressed under both the 1976 Act and the 2011 Act.  It does not however address the issue of what is the applicable law. 

[7]        Accordingly Mr Dunlop moved for dismissal of the action insofar as it was directed against the second defenders.  In the course of submissions Mr Marshall made it clear that in the event that I was against him he wished to consider whether or not to bring a minute of amendment to add a claim at the instance of the first pursuer as executrix nominate under the 1976 Act.  Mr Dunlop had no difficulty with the case being put out by order so that Mr Marshall may consider his position but reserved his right to oppose any minute of amendment. 

Submissions for the pursuer
[8]        Mr Marshall submitted that although it was not expressly averred it was not in dispute that asbestosis was a cumulative disease.  Accordingly both defenders contributed to the onset and severity of the deceased’s asbestosis.  All exposure could be said to have led to the deceased’s death.  Liability was at common law which was essentially the same in Scotland and in England.  The heads of damage, although expressed in different terms in different jurisdictions, were essentially the same.  If the deceased had raised an action while still alive he could have pursued both defenders in Scotland or England.  Liability could have been established against both defenders on the basis of a joint and several liability or apportioned against the defenders, Grunwald v Hughes 1965 SLT 209, Lord Justice Clerk at 211 and Lord Walker at 214 and 215.  The principal question was by whom were damages to be paid and for what.  The question had to be addressed from the standpoint of the deceased.  It was competent to proceed against both defenders as joint wrongdoers where the disease, as here, was a cumulative one and each contributed to a single result;  Woodland v Advocate General 2004 Rep LR 63 per temporary judge JG Reid QC at paragraph 13.  In Scotland and England the claims available on death were governed by statute viz the 2011 Act in Scotland and the 1976 Act in England.  Although differently expressed section 4(3)(b) of the 2011 Act and section 1A(1) of the 1976 Act were essentially the same.  They were broadly the same heads of claim. 

[9]        Mr Marshall accepted that the common law was to be found in McElroy.  However, that case can be distinguished.  One of the difficulties for the pursuer in McElroy was that she claimed under her own right while in England the right to claim damages for death is at the hands of the executor for the benefit of the dependants (see section 2 of the 1976 Act).  One had to look at McElroy in the light of the statutory regime on both sides of the border.  The court should not take a technical approach.  The discussion of the issue by Lord Coulsfield in James Burroughs Distillers Plc v Speymalt Whisky Distributors Ltd 1989 SLT 561 and 565 showed that the court was prepared to take a flexible approach.  Multiple claims and different jurisdictions could give rise to potential conflicting decisions which should be avoided see Kalfelis v Schroder.  The cases of McElroy and Naftalin arose out of a single delict in a single jurisdiction, not a single loss arising out of a cumulative delict or tort. 


[10]      The issue falls to be determined under the common law as the Acts predate the coming into force of the Private International Law (Miscellaneous Provisions) Act 1995 section 9(1) and section 14(1).  It is also accepted that the rules in the Rome II Regulations do not apply, see section 15B of the 1995 Act.  It is accepted that the common law position as set out in McElroy the ratio of which can be found in the opinion of Lord Cooper at page 135.  After discussing Naftalin he said that the Scottish courts would not recognise any specific jus actionis which is denied to the pursuer by the lex loci delicti:   

“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?” 


[11]      Applying McElroy it is clear that a claim for damages against the second defender under the 2011 Act must fail.  However, Mr Marshall while accepting that McElroy is a correct statement of the common law, contends that it does not apply in this case.  In the first place he says that there are two wrongs which contribute to one result.  That distinguishes this situation from that in McElroy which dealt with a fatal accident in England.  That point however is met by the fact that the court will accept jurisdiction on the basis of joint and several liability.  Mr Marshall counters that the fact that the court accepts that the defenders can be jointly and severally liable demonstrates that the court should accept that the lex fori will apply to the claim for damages.  In my opinion this is to confuse the issue of 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;   Grunwald v Hughes per Lord Walker quoting with approval Lord McLaren in Fleming v Gemmill 1908 SC 340 at 345.  It does not answer the question as to how you assess the sum sued for.  As Mr Dunlop put it you cannot have joint and several liability if you have not first established individual liability for the claim. 

[12]      Mr Marshall further contends that McElroy has to be read in the light of the statutory regime in both Scotland and England.  However I can see nothing in either Act which assists the pursuer.  Indeed it rather emphasises the fact that these are particular remedies available only under the law of that country (see the discussion of the terms of the 1976 Act by Lord Sumption in Cox at paragraph 10). 

[13]      Mr Marshall invites the court to consider the issue from the perspective of the deceased.  I consider this is the wrong approach.  A claim under section 4 of the 2011 Act is one that vests in the relative of the deceased.  They are the pursuers.  This is of course in contrast to the position in England under the 1976 Act where the right to bring an action is at the hands of the executor or administrator of the deceased (section 2).  The number of people who may bring a claim in England is much more limited;  section 1A of the 1976 Act. 

[14]      If Mr Marshall was correct then it would mean that the second to twenty‑third pursuers who have no claim in England for a tort committed in England can not only bring an action for damages in Scotland but seek a remedy not available under English law.  In posing the question on whom does the lex loci delicti confer a jus actionis and for what, Lord Cooper said that this was the only view which would do substantial justice to the parties.  He further noted: 

“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.) 


[15]      Accordingly in my opinion the action as drafted against the second defenders is irrelevant.  I intend to dismiss the action insofar as it is brought by the second to twenty‑fourth pursuers against the second defenders.  I would also propose dismissing the action against the second defenders at the instance of the first pursuer.  However before doing so I shall put the case out by order to enable Mr Marshall to consider a minute of amendment to bring a claim under the 1976 Act and to deal with the question of expenses.