Naftalin v LMS Railway [1933] ScotCS CSIH_1 (18 January 1933)

Naftalin v LMS Railway [1933] ScotCS CSIH_1 (18 January 1933)

The right to claim solatium for wrongful death is a substantive right governed by the law of the place where the delict occurred (England). Since English law does not recognise a claim for solatium in such cases, the pursuer's claim for solatium cannot be sustained in Scotland, even though Scottish law would otherwise allow it.

Citation
[1933] ScotCS CSIH_1
Parties
Pursuer: Naftalin; Defender: London, Midland and Scottish Railway Co
Jurisdiction
Scotland
Judgment Date
18 January 1933
Procedural Posture
Personal Injury/delict (wrongful Death) / Appeal (reclaiming Motion) Before the Second Division of the Court of Session
Outcome
Pursuer's claim for solatium disallowed; Lord Ordinary's interlocutor recalled to that extent; defenders' plea sustained as to solatium; action to proceed only on pecuniary loss.
Legal Topics
Choice of Law in Tort, Damages for Wrongful Death, Solatium, Measure of Damages, Lex Loci Delicti, Lex Fori
Private International Law Delict/tort Conflict of Laws Choice of Law in Tort Damages for Wrongful Death Solatium Measure of Damages Lex Loci Delicti +1 more

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Parties

Naftalin

Pursuer

London, Midland and Scottish Railway Co

Defender

Procedural Posture

Personal Injury/delict (wrongful Death) / Appeal (reclaiming Motion) Before the Second Division of the Court of Session

Legal Issues

  1. 1 Whether the right to claim solatium (damages for wounded feelings) for wrongful death is governed by the law of the forum (Scotland) or the law of the place of the delict (England)
  2. 2 Whether the elements of damages (including solatium) are matters of substantive right or remedy/procedure in cross-border tort cases

Ratio Decidendi

The right to claim solatium for wrongful death is a substantive right governed by the law of the place where the delict occurred (England). Since English law does not recognise a claim for solatium in such cases, the pursuer's claim for solatium cannot be sustained in Scotland, even though Scottish law would otherwise allow it.

Court Disposition

Pursuer's claim for solatium disallowed; Lord Ordinary's interlocutor recalled to that extent; defenders' plea sustained as to solatium; action to proceed only on pecuniary loss.

Orders

  • Recall of Lord Ordinary's interlocutor in so far as it allowed claim for solatium.
  • Sustain defenders' plea to relevancy regarding solatium.