Personal injury - what law applies when there’s more than one country involved?

  • Insight

05 September 2018

The interesting question of which country’s law applies in a personal injury case involving  more than one country has been dealt with in an appeal decision issued by the Inner House of the Court of Session. The simple question facing the court in this tricky area of law – known as lex loci delicti or the law of the place of the harm (delict)  - was where should the case be heard and decided – Scotland or England?

The case has helped to clarify in which court a case should be raised when the original act causing the harm takes place in one country but the harm itself only becomes known when the injured party lives in a different country.

Background

The late James Docherty developed an asbestos-related illness as a result of his exposure to asbestos fibres during the course of his employment with Scotts Shipbuilding & Engineering Co (“Scotts”) in Greenock. A claim for damages was brought by Mr Docherty’s widow and extended family against the defender (who had assumed the liabilities of the now defunct Scotts).

Mr Docherty worked at Scotts’ shipbuilding yard between 1941 to 1947. But it was not until 2003, by which time he was living in England, that he began to suffer from the respiratory problems which ultimately led to his death in 2011.

In a matter of some legal complexity, given the date of the exposure, neither the Private International Law (Miscellaneous Provisions) Act 1995 nor the Rome II Regulation (EU Regulation 864/2007) applied. The question before the court, therefore, was what was the lex loci delicti under common law?  In other words, which country’s court should hear and decide the case?

In Scots law, where someone’s death is caused by the negligence of another, their relatives may make a claim for compensation for distress, anxiety, grief and sorrow, together with the loss of the guidance of that person.
 
The significance of the question in this case was that if the claim were to be determined under Scots Law rather than English law, it would likely result in an higher amount of compensation being paid if the claim was successful.

Original decision

The judge at first instance in the Court of Session found that the applicable law was the place of the ‘occurrence’ of the injury. In this case the judge found that was England, where Mr Docherty had begun to suffer from the respiratory problems. It was not the country of the event giving rise to the injury, i.e. the exposure to asbestos fibres which had taken place in Scotland.

Mr Docherty’s family appealed this decision.

The appeal

The Inner House of the Court of Session allowed the family’s appeal. The Lord President (Lord Carloway) gave the leading judgment.  The court held that the lex loci delicti is the “law of the place where the fault, omission, or offence takes place… it is the place of the act of the defender which constitutes the wrong”.  The court said it had no difficulty finding that the “...purely internal changes [respiratory problems] have no relationship whatsoever with England as a geographical location.” On this basis, the applicable law was Scots law as the asbestos exposure took place in Scotland.

Comment

This judgment provides clarity as to how the common law rules of lex loci delicit ought to be applied where a negligent act or omission occurs before 1995 but the resultant injury does not develop until much later.

In general, acts committed at a particular place ought to be governed by the law of that place. In cases of asbestos exposure in Scotland, the applicable law will be Scots law, even where the subsequent injury develops abroad. This avoids the cost of unnecessary medical evidence about in which country the disease developed.

However, the Inner House also made clear that in certain circumstances the place where the harm becomes known may be relevant when determining the applicable law. Practitioners should therefore be looking at the whole circumstances when determining the lex loci deliciti.

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