DOCHERTY AND OTHERS AGAINST THE SECRETARY OF STATE FOR BUSINESS, INNOVATION AND SKILLS [2018] ScotCS CSOH_25 (21 March 2018)

DOCHERTY AND OTHERS AGAINST THE SECRETARY OF STATE FOR BUSINESS, INNOVATION AND SKILLS [2018] ScotCS CSOH_25 (21 March 2018)

The applicable law for the pursuers’ claims is English law, as the actionable injury (diagnosis of asbestos-related disease and death) occurred in England, even though the negligent exposure occurred in Scotland. The Rome II Regulation does not apply because the exposure predated its entry into force. Under common...

Source-derived case information.

Citation
[2018] ScotCS CSOH_25
Parties
Pursuers: George Docherty and Others; Defender: Secretary of State for Business, Innovation and Skills
Jurisdiction
Scotland
Judgment Date
21 March 2018
Procedural Posture
Civil (delict/personal Injury) / Procedure Roll Debate; Interlocutor on Applicable Law and Relevancy
Outcome
Action dismissed in part; proof before answer allowed in part; expenses reserved.
Legal Topics
Applicable Law in Cross Border Torts, Asbestos Related Personal Injury, Damages for Relatives, Rome II Regulation, Common Law Choice of Law Rules
Private International Law Tort/delict Conflict of Laws Applicable Law in Cross Border Torts Asbestos Related Personal Injury Damages for Relatives Rome II Regulation Common Law Choice of Law Rules

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 12 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

George Docherty and Others

Pursuers

Secretary of State for Business, Innovation and Skills

Defender

Procedural Posture

Civil (delict/personal Injury) / Procedure Roll Debate; Interlocutor on Applicable Law and Relevancy

Legal Issues

  1. 1 Whether the Rome II Regulation applies to determine the applicable law for claims arising from asbestos exposure occurring before its entry into force
  2. 2 If not, what is the applicable law under the common law of Scotland for delict where exposure and injury occur in different jurisdictions

Ratio Decidendi

The applicable law for the pursuers’ claims is English law, as the actionable injury (diagnosis of asbestos-related disease and death) occurred in England, even though the negligent exposure occurred in Scotland. The Rome II Regulation does not apply because the exposure predated its entry into force. Under common law, the locus delicti is where the injury occurred, not where the negligent act took place. Claims based on the Damages (Scotland) Act 2011 are irrelevant.

Court Disposition

Action dismissed in part; proof before answer allowed in part; expenses reserved.

Orders

  • Action dismissed against the defender at the instance of the second to twenty-fourth pursuers.
  • Averments of the first pursuers based on the Damages (Scotland) Act 2011 excluded from probation.