This post was written by Spencer Turner. A link to the decision can be found here.

Background

The Claimant was suffering from malignant mesothelioma and had a life expectancy of 3-6 months. The issue before the court was the mechanism by which the Claimant’s continuing costs of immunotherapy should be ordered. It was the Claimant’s position at the hearing that the cost of the immunotherapy should be funded by way of a Periodical Payments Order (‘PPO’) with provision for repayment to the Defendant of any surplus funds held on trust when the Claimant’s immunotherapy stopped. It was the Claimant’s position that the refunding of surplus monies provided fairness and certainty to the Defendant.

The Defendant accepted the Claimant’s entitlement to claim the costs of private immunotherapy but said that it was willing to pay for such further immunotherapy and chemotherapy as may be recommended by the Claimant’s treating oncologist, either by paying directly for the same or indemnifying the Claimant for the cost rather than by way of PPO.

The Issues

The Introduction of the PPO

The court noted that the claim for a PPO had not been the subject of express pleading or claim. The Claimant had pleaded in the Schedule produced at trial that:

“It is anticipated that this [immunotherapy] will be funded through a float agreement with the Defendant and is therefore to be quantified at this stage”.

The Claimant’s counsel further submitted to the court that there had been numerous unrequited overtures from his instructing solicitors to invite the Defendant to settlement discussions. There had been a failure to obtain any agreement on the float agreement offer and, from the Claimant’s perspective, a general refusal by the Defendant to engage on future funding for immunotherapy. It is in that context that a PPO was sought at a late stage.

In relation to the PPO the Claimant drew the court’s attention to CPR 41.5(1) which provides that:

“(1) In a claim for damages for personal injury, each party in its statement of case may [emphasis added] state whether it considers periodical payments or a lump sum is the more appropriate form for all or part of an award of damages and where such statement is given must provide relevant particulars of the circumstances which are relied on”.

It was the Claimant’s submission that CPR 41.5(1) was permissive and did not place a mandatory requirement on an explicit pleading of a PPO to be necessary.

Counsel for the Claimant went on to describe the Defendant’s objections to the PPO as a ‘false naivety’, submitting that it was difficult to accept how any Defendant could not have contemplated the Claimant pursuing a PPO as one of their options in the context of this case.

The Defendant’s Position

The Defendant’s position was that the PPO suggested by the Claimant placed the discretion of the application of received funds completely in the hands of the Claimant and provided no provision for the Defendant to question or challenge any change in his treatment regime.

Master Thornett, in considering the Defendant’s submissions and the draft order provided by the Claimant said that:

‘Whether one analyses specifically the draft Order or considers the Claimant’s claim in the round, there features an unreasonable proposition that the Defendant should continue to pay a fixed quarterly sum of £22,500 whether or not the Claimant continues to receive the treatment in its current form. Whilst the Claimant proposes to incorporate a provision to apply to vary, there is no obligation upon him actually pursue such an application, leaving open the possibility of the Claimant utilising the monies received for such course or description of immunotherapy as he and his treating oncologist might choose.’

The Decision

Master Thornett rejected the Claimant’s position. In his view, it was not clear as to why the Claimant would not make the intended PPO claim clear to the Defendant at an earlier stage. It was also noted that the medical experts had not had the chance of addressing the issues pertinent to the court’s consideration of a PPO.

In rejecting the Claimant’s approach, Master Thornett said that he ‘did not accept that the PPO claim was implicit or fell within a range of predictable options, such that the Defendant’s objections are contrived’

Master Thornett was satisfied that:

‘drawing upon interim payments to fund immunotherapy in the circumstances of a case such as this, where the Claimant’s life expectancy is very limited, is by far the more flexible and appropriate tool than a PPO. My reasons focus not only upon practical advantages and disadvantages featured in respectively the two mechanisms but also factors in the considerable procedural flexibility and (I believe) efficiency afforded to parties bringing and defending claims in the Asbestos List and as would immediately apply to any interim payment application. This second observation substantially informs and eclipses any process of comparing and contrasting the two mechanisms.’

The approach of the courts to asbestos claims is focused on ensuring an efficient and just outcome for Claimants, at the expense of formalities of procedure if necessary. The Master was of the view that, set against this context, any application for interim payments in a living mesothelioma case would not run the risk of extended delay.

Analysis

Master Thornett’s judgment is a reminder of the flexibility of the Asbestos List and that the internal protocols for prioritisation allow the court to effectively deal with truly urgent applications. It is in that context that the decision to draw on interim payments to fund immunotherapy where the claimant’s life expectancy was very limited was the more flexible and appropriate tool than a PPO.

Whilst the Defendant’s argument was ultimately successful, the Claimant’s application for a PPO arose only in the context of a refusal by the Defendant to engage in settlement discussions on the proposed float agreement.

The judgment contains a salutary message of general importance that parties should attempt to confirm their position as early as possible. In the context of immunotherapy in asbestos claims, an early recognition of the need for a PPO will allow sufficient time to allow the medical experts to contribute from their medical viewpoint in the context of the requirements and limitations of PPO funding.

This blog post was written by John-Paul Swoboda, who represented the Claimant in this action, which is believed to be the first successful litigated overalls case.

A copy of the judgment can be viewed and downloaded here.

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Mr Carey worked as a maintenance electrician in the Vauxhall/Bedford Trucks Dunstable plant in the 1970s. He married Mrs Carey in August 1976. It was his case that he regularly came into contact with asbestos in the course of his work, that he wore overalls which he sometimes took home and that his wife, Mrs Carey, laundered those overalls.

The matter was listed for an expedited trial to consider the issue of liability as Mrs Carey hoped to be able to obtain an interim payment to fund immunotherapy treatment. Sadly, Mrs Carey died days prior to the trial which took place between 3 and 6 December 2018.

HHJ Walden-Smith, sitting as a judge of the High Court, found, having considered, Magereson v JW Roberts Ltd [1996] PIQR 358, Maguire v Harland & Wolff Plc [2005] EWCA Civ 01, and the recent Scottish case Gibson v Babcock International Ltd [2018] CSOH 78 that the Defendant was right to admit that a duty was owed to Mrs Carey even though she had no direct relationship with Vauxhall.

Vauxhall argued that if Mr Carey was exposed to asbestos, any such exposure was, in effect, no more than de minimis and did not give rise to a foreseeable risk of injury to Mr Carey nor Mrs Carey. A position self-evidently at odds with the Claimant’s case. The Claimant’s case was largely accepted, and as a result the claim succeeded.

This judgment clarifies the common law in three important ways.

The duty and standard of care in what might loosely be termed “secondary exposure cases” has been clarified so that, “…all employers [post October 1965] are subject to the duty to take reasonable care to prevent exposure of its employees, and members of their families, from inhaling the asbestos that might cause mesothelioma. The court has to consider whether [the Defendant] fulfilled its duty to take reasonable care by taking all practicable measures to prevent [the person liable to second hand exposure] from inhaling asbestos dust, through contact with their employee … in light of the known risk that asbestos dust, if inhaled, might cause mesothelioma.” (para 18)

Accordingly, where the exposure is post October 1965 any exposure which is more than de minimis (which in practical terms means more than background levels of asbestos given there is no identified safe level of exposure) is likely to lead to a finding of negligence so long as the defendant cannot prove it took all practicable measures, irrespective of whether the victim is an employee or experiences second hand exposure. Carey is therefore a continuation of the Bussey v 00654701 Ltd [2018] EWCA Civ 243 line of authority and extends the logic in that authority to “secondary exposure cases.”

Taylor v Fascia Future [2018] EWHC 3049 QB is the only reported case in which Keefe v The Isle of Man Steam Packet [2010] EWCA Civ 263 has been applied in an asbestos case.

Harry Steinberg QC and Max Archer appeared for the Claimant.

Background

The Claimant had contracted lung cancer. He alleged that he was exposed to asbestos whilst working for the Defendant between 1994 and 2006 in the roofing trade.

The Claimant’s case was that he removed asbestos soffits, fascias and guttering from residential properties in the Northampton area. He alleged that he encountered asbestos on the majority of jobs he undertook. He alleged that in order to remove the materials he would have to cut them with handsaws and sometimes with an angle grinder, he would then break the materials up on the ground and place them in a van for disposal. The materials would be taken to the tip, however, in the late 1990s the tip refused asbestos materials and the Claimant was instructed to take them to his employer’s mother in law’s garage. He alleged that he smashed up the asbestos materials in this garage.

The Defendant’s case was starkly different. It was alleged that only a very small percentage of the Claimant’s jobs involved asbestos and that these would typically involve asbestos cement guttering and sometimes soffits. It was said that the materials came off in one piece and would be placed in the van. It was flatly denied that asbestos materials were stored in the garage.

Trial

The matter was listed for a preliminary issues trial on the facts only. Breach of duty was admitted two days before the trial. The preliminary issues trial was concerned with such findings of fact necessary to determine causation.

At trial the Claimant maintained that he was exposed in the majority of jobs. The Defendant called the Claimant’s employer as a witness. He made a large number of concessions, conceding a greater frequency of exposure than had previously been alleged. He conceded that asbestos was stored in the garage and that it may have been broken up there. He also conceded that he had not taken any steps to comply with the Control of Asbestos at Work Regulations 1987, crucially he had not undertaken any testing on the materials, any training as to how to recognise asbestos or safely dispose of it.

Keefe

There nonetheless was a conflict in the evidence as to the frequency of exposure, the materials that the Claimant was exposed to and the processes of removing and disposing of the materials. The Claimant sought to rely upon  Keefe v The Isle of Man Steam Packet Company Ltd [2010] EWCA Civ 683  a case in which the Court of Appeal had held that:

“in the present case there is the potent additional consideration that any difficulty of proof for the claimant has been caused by the defendant’s breach of duty in failing to take any measurements. The judge does not appear to have given any weight to this important factor.” (paragraph 18).

 

“If it is a defendant’s duty to measure noise levels in places where his employees work and he does not do so, it hardly lies in his mouth to assert that the noise levels were not in fact excessive. In such circumstances the court should judge a claimant’s evidence benevolently and the defendant’s evidence critically. … [A] defendant who has, in breach of duty, made it difficult or impossible for a claimant to adduce relevant evidence must run the risk of adverse factual findings. To my mind this is just such a case.”  (paragraph 19):

 

The judge was asked to accept that had the Claimant’s employer complied with the relevant regulatory regime at the time (The Control of Asbestos at Work Regulations 1987 SI 1987/2115, and 2002 SI 2002/2675) then, to put it at its lowest, the task of establishing the extent of his exposure would have been very much easier because there would have been relevant records. The Defendant argued that Keefe had no application as it was concerned with breach of duty, which had been admitted.

 

The judge found as follows:

 

‘I do, however, accept the relevance of Keefe to the present case to this extent. The Court was clearly focused in that case on the specifically factual component of liability, and even more specifically on the particular factual issue of frequency of exposure to a potentially causative hazard. In my view it would be fair to conclude that the Defendant in this case should not benefit from the absence of records by expecting me to do other than take the upper end of Mr Walpole’s accepted range of frequency – 60% – as the lowest point of the credible range.

 

The judge largely accepted the Claimant’s evidence. It was found that the Claimant’s evidence was ‘consistent with a factual situation in which asbestos was encountered frequently, more often than not…I am satisfied that it would be fair to say, as a very general average, Mr Taylor encountered asbestos in as many as three quarters of the jobs he did.’ Further, it was accepted that the materials were broken up on removal and that they were disposed of in the garage and smashed up by the Claimant.

Analysis

This decision demonstrates the importance of Keefe for asbestos litigators. The 1987 Regs. impose a great number of duties on defendants, most importantly in the context of Keefe, duties to test and keep records. Keefe is therefore exceptionally potent in these circumstances and may come to the aid of many claimants whose evidence is impaired by the passage of time where the defendant has not complied with the duties under the Regs.

 

The Supreme Court has granted the parties permission to appeal the Court of Appeal’s decision in Cape Intermediate Ltd v Dring (for and on behalf of Asbestos Victims Support Groups Forum UK) [2018] EWCA Civ 1795: https://www.supremecourt.uk/docs/permission-to-appeal-2018-10.pdf

It appears from the Supreme Court’s website that Cape brought the initial appeal and the Forum has cross-appealed. We don’t know on what basis the parties have appealed the decision.

Permission was granted on 31 October 2018.

Links to our previous posts on this case can be found below:

The post on the first instance decision: https://asbestoslawblog.wordpress.com/2017/12/06/concept-70-disclosure-documents-made-publicly-available-dring-v-cape-distribution-ltd-and-others-2017-ewhc-3154-qb/

The post on the Court of Appeal’s decision: https://asbestoslawblog.wordpress.com/2018/07/31/cape-disclosure-documents-appeal-allowed/

This post was written by James Beeton.

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.

The Court of Appeal today allowed Cape’s appeal against the judgment of Master McCloud in respect of the so-called Cape disclosure documents, setting aside the Master’s original Order. The Court of Appeal’s decision was reached on the basis that the Master did not have jurisdiction to allow inspection of many of the categories of documents that fell within the scope of the Order. 

Readers of this blog will recall that on 5 December 2017, Master McCloud determined that many of the documents referred to in the major asbestos product liability trial of Concept 70 & Others v Cape International Holdings Ltd (which took place over the course of several weeks at the start of 2017 before Picken J) could be made publicly available. Our post about that decision can be read here.

The Master refused permission to appeal. Cape applied to the High Court for permission, which was granted by Martin Spencer J, who ordered  that the appeal be heard by the Court of Appeal, pursuant to CPR 52.23 in view of the importance of the issues raised.

The hearing before the Court of Appeal took place on 18 and 19 June, and judgment was handed down today.

We will write a detailed post in due course, but for the moment, the key passages of the decision are extracted below. They are taken from the lead judgment of Lord Justice Hamblen. The full decision can be read here.

112. I would accordingly summarise the current position on the authorities as follows:

(1) There is no inherent jurisdiction to allow non-parties inspection of:

(i) trial bundles;

(ii) documents which have referred to in skeleton arguments/written submissions, witness statements, experts’ reports or in open court simply on the basis that they have been so referred to.

(2) There is inherent jurisdiction to allow non-parties inspection of:

(i) Witness statements of witnesses, including experts, whose evidence stands as evidence in chief and which would have been available for inspection during the course of the trial under CPR 32.13.

(ii) Documents in relation to which confidentiality has been lost under CPR 31.22 and which are read out in open court; which the judge is invited to read in open court; which the judge is specifically invited to read outside court, or which it is clear or stated that the judge has read.

(iii) Skeleton arguments/written submissions or similar advocate’s documents read by the court provided that there is an effective public hearing in which the documents are deployed.

(iv) Any specific document or documents which it is necessary for a non-party to inspect in order to meet the principle of open justice.

113. The court may order that copies be provided of documents which there is a right to inspect, but that will ordinarily be on the non-party undertaking to pay reasonable copying costs, consistently with CPR 31.15(c). There may also be additional compliance costs which the non-party should bear, particularly if there has been intervening delay.

114. In the light of my conclusion on inherent jurisdiction it follows that the Master had no jurisdiction to allow inspection of a number of the categories of documents identified in the Order. The documents for which it is likely that there was jurisdiction are the witness statements (but not exhibits), expert reports and written submissions and skeleton arguments. It may also be that there is jurisdiction to allow inspection of a number of the documents relied on at trial, but not on the generalised basis set out in the Order.

This post was written by Aliyah Akram.

In the latest in a series of claims against Johnson & Johnson in the US a St Louis jury has ordered that the pharmaceutical company pay a total $4.69 billion to 22 women who have suffered ovarian cancer as a result of using J&J’s asbestos contaminated talcum powder.  The award against both J&J and a subsidiary includes compensatory damages of $550 million and punitive damages of $4.14 billion.

The plaintiffs’ lead attorney, Mark Lanier, argued that J&J had known that their ‘Baby Powder’ and ‘Shower to Shower’ products contained asbestos since at least the 1970s but had failed to disclose this to the FDA, the federal agency responsible for protecting public health in the US.  Expert evidence proved that asbestos fibres entered the body when talcum powder was inhaled or applied.  Asbestos fibres were then found in the ovarian tissue of many of the women.

Another 9,000 cases are currently being pursued where it is alleged that asbestos contaminated talc has caused either ovarian cancer or mesothelioma.  Unsurprisingly Johnson & Johnson have made it clear that they plan to appeal this judgment.

In February of this year, the Court of Appeal allowed the Claimant’s appeal in Bussey and set aside the judgment in the Defendant’s favour. It remitted the case to the trial Judge for him to redetermine the issue of liability.

The case has now settled. Quantum was agreed before trial, subject to liability. The case settled on terms that the Defendant would pay the Claimant the agreed amount in full plus costs to be assessed.

See below for links to our previous posts about Bussey:

• For the post about the outcome of the trial, click here;
• For the post about the Claimant’s successful application for permission to appeal, click here;
• For the post about the outcome of the appeal, click here.

Michael Rawlinson QC has written a paper about awards for immunotherapy treatment in mesothelioma claims. In particular, he writes about the different forms such awards can take, having acted in two cases which settled last week in which the awards were compromised on different bases: one in the form of a variable PPO, and the other as a ‘float’ agreement. The paper can be read here.

Regular readers of this blog will recall that Michael has previously written about this topic. For those that missed it, the post can be viewed here.

This blog post is by Michael Rawlinson QC and James Beeton of 12 King’s Bench Walk.

In Docherty v Secretary of State for Business, Innovation and Skills [2018] CSOH 25, the Outer House of Scotland’s Court of Session considered the following question:

Where a man, 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?

Facts

The deceased had worked as a mechanical fitter for a predecessor of the defender. From about 1941 to 1947, and then from 1954 to 1979, he was exposed to asbestos dust in the course of his work.

In 2003 the deceased began to experience respiratory problems and in 2009 he was admitted to hospital. A CT scan showed basal bronchiectasis with fibrosis and mild pleural thickening consistent with asbestosis. He continued to suffer respiratory difficulties until his death in 2011.

At the time when the deceased began to experience respiratory symptoms, at the time of diagnosis and immediately prior to his death, the deceased lived in England.

The pursuers deliberately raised an action in Scotland rather than England with a view to benefitting from the Damages (Scotland) Act 2011, which allows rights of action to a much broader range of relatives than would have had a claim under English law. The Scottish courts are also more generous in valuing claims for grief and loss of association, meaning that there was a further advantage to pursuing the claim in Scotland.

Issues

There were three issues for the court to determine:

1. Whether the applicable law was determined by the Rome II Regulation (No. 864/2007) (“Rome II”);
2. If so, what was the applicable law under the Regulation; or
3. If not, what was the applicable law under the common law of Scotland?

Decision

Did Rome II Apply?

Lord Tyre agreed that the case gave rise to an issue of conflict of laws, but he held that by virtue of its commencement provision at article 31, Rome II was inapplicable. Article 31 provides that Rome II applies to ‘events giving rise to damage which occur after its entry into force.’ The date of entry into force was 11 January 2009.

Lord Tyre was of the view that the reference in article 31 to ‘events giving rise to damage’ was linked to the distinction drawn in article 4(1) of Rome II between three separate concepts, namely:

• The event giving rise to the damage (in this case, exposure to asbestos);
• The damage (the deceased’s illness and death); and
• The indirect consequences of the event (the losses suffered by the deceased’s relatives).

Since the ‘events giving rise to damage’ (i.e. the exposure to asbestos) had occurred before the entry into force of Rome II, the Regulation would not apply.

Neither, it was agreed, would the Private International Law (Miscellaneous Provisions) Act 1995 apply, which contained a similar commencement provision at section 14. The matter therefore had to be determined by the pre-1995 Act common law.

What was the Applicable Law?

Scots common law provided that a right of action would not be recognised unless it was admitted by the lex loci delicti. However, there was no clear answer to the question of how to identify the lex loci delicti where the harmful event occurred in one jurisdiction but the harm occurred in another.

Lord Tyre approached this question by referring to comments of the House of Lords in Rothwell v Chemical & Insulating Co Ltd [2008] 1 AC 281.

• At [87] and [88], Lord Rodger had said:

‘In summary, three elements must combine before there is a cause of action for damages for personal injuries caused by a defendant’s negligence or breach of statutory duty. There must be (1) a negligent act or breach of statutory duty by the defendant, which (2) causes an injury to the claimant’s body and (3) the claimant must suffer material damage as a result.

In these cases the claimants do not suggest that the presence of the asbestos fibres in their lungs constitutes an injury…’

At [47], Lord Hope had said:

‘It is well settled in cases where a wrongful act has caused personal injury there is no cause of action if the damage suffered was negligible. In strict legal theory a wrong has been done whenever a breach of the duty of care results in a demonstrable physical injury, however slight. But the policy of the law is not to entertain a claim for damages where the physical effects of the injury are no more than negligible…’

He considered that it was clear from these comments that ‘a cause of action in delict does not arise unless and until there has been both a wrongful act and resultant injury. Specifically, the presence of asbestos dust in an employee’s lungs does not of itself constitute injury, and… no cause of action arising out of negligent exposure arises until it does.’

Since injury was an essential ingredient of an actionable wrong, and since injury could not take place until after the breach of duty had occurred, the place of the harmful event (or locus delicti) was the place where the injury took place and not where the negligent act or omission occurred.

In those circumstances, the claim fell to be determined according to English law and the case insofar as it was based on the Damages (Scotland) Act 2011 would be dismissed.

Comment

The decision represents a coup for defenders faced with pursuers seeking to maximise damages by proceeding in Scotland rather than England.

In addition to the broader range of dependants in fatal accident claims and the more generous levels of award available outlined above, it will also be noted that pleural plaques are in fact compensable in Scots law (where the Rothwell result was overturned by legislation). Following the approach in Docherty, a pursuer resident in England at the time his injury manifests itself will be unable to benefit from those features of Scots law by bringing his case in Scotland.

A suggestion by some commentators is that this decision appears on the face of it to be inconsistent with the Supreme Court’s approach in Durham v BAI (Run Off) Ltd [2012] UKSC 14 (the “Trigger” litigation).

It will be recalled that in that case the Supreme Court determined that mesothelioma was ‘contracted’ or ‘sustained’ for the purposes of employer’s liability insurance policies during the period of exposure rather than at the point of its manifestation in the victim.

The first point to note is that two drivers led to the policy decision in Durham: the first was the type of insurance policy in question (i.e. employer’s liability insurance) and the second was the nature of the disease under consideration.

It is therefore important to note that Durham involved mesothelioma, whereas this case involved asbestosis – a cumulative condition whose causative mechanism is very different to that of cancer.

The policy decision in Durham that the relevant employer’s liability insurance policies would be triggered at ingestion was based in part on (i) the expectation of the London market and (ii) the fact that most modern policies contained exemption clauses for asbestos diseases which would have led to a lack of compensation for mesothelioma victims if the date of clinical onset of symptoms was adopted as the trigger date of the policies. A key driver leading to the policy decision in Durham was therefore lacking.

A further point is that the two cases simply concern different things. Durham deals with the rules of contractual construction concerning whether a tortfeasor may call upon its indemnity: Docherty (and Rothwell) deal with the rules of what constitutes an actionable injury for the purposes of a tort. The concepts are not the same – although there may be a degree of overlap for the purposes of determining the applicability of the Third Party (Rights against Insurers) Act 2010 or 1930 (which could allow the claimant to sue the insurer direct).

That disconnect, it seems to us, is also reflected in Lord Mance’s comments (on behalf of the majority in Durham) at [52] that:

‘Damage is only incurred when mesothelioma develops. Only when it develops does the victim incur damage which is legally relevant … [The Fairchild rule] is not a rule which, even as between employers and employees, deems the latter to have suffered injury or disease at the time of any exposure.’

On that approach, it appears that Lord Tyre was correct to take the place where the disease developed as the locus delicti.

On the other hand, Durham was not addressed by Lord Tyre and, as has been pointed out, the decision in Docherty runs contrary to the prevailing insurance market practice of taking the relevant jurisdiction as the place of exposure rather than the place of manifestation of the disease.

It is understood that the pursuers have sought to appeal to the Inner House of the Court of Session. It will be interesting to see how the case progresses.