Scots law accepted in mesothelioma claim pursued in England against ICI
Dushal Mehta, with Counsel John-Paul Swoboda and Spencer Turner from 12 Kings' Bench Walk, has won an important element of an unusual mesothelioma claim on behalf of the widow of a man exposed to asbestos in Scotland in the 1970s.
Charmaine Haggerty brings a claim for damages against Imperial Chemical Industries Ltd (ICI) based in Ardeer (Stevenston), Scotland. She alleges that her late husband was exposed to asbestos whilst he worked at this factory between 1973/74 and 1978/79. The factory was used to manufacture explosives and it is alleged that whilst Mr Haggerty worked for the company he was required to handle asbestos without adequate warning or protection. This is the only alleged exposure to asbestos and it is claimed that this exposure caused Mr Haggerty's diagnosis and sad death due to mesothelioma.
The Defendant disputes liability and proceedings have been issued in the High Court in London. The preliminary issue which the Court was asked to determine was whether the Claimant could seek to apply Scots law to the claim despite the claim being brought in England. The case was listed for a 1 day trial in January 2021 to determine this issue.
If Scots law was found to apply, the Claimant could bring a claim for ‘loss of society’ under section 4 of the Damages (Scotland) Act 2011, which had the potential to substantially increase the value of her claim. It is well known that a loss of society award cannot be made under English law and that damages awarded in mesothelioma cases are generally greater under Scots law compared to English law mainly due to the way in which the loss of society award is assessed and quantified. Under English law Claimants are restricted to a statutory bereavement award. In addition, other relatives unable to claim in English law would also be able to join the action if Scots law applied.
The case involved the common-law double actionability rule and whether the 'flexible exception' to the rule could apply. The definition of the double actionability rule in English law is:
“As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be of such a character that it would have been actionable if committed in England. Secondly, the act must not have been justifiable by the law of the place of where it was done.” Phillips v Eyre (1870) L.R. 6 Q.B.
Although the rule was intended to ensure that a person should not be liable for something which is lawful in the place that it is done and secondly, to provide that a person who is given protection by the laws of one country is protected against legal proceedings in other countries, it clearly runs parallel with the right of the courts to find 'flexible exception', illustrated in Boys v Chaplin [1971] A.C. 356:
Boys arose out of a road traffic accident in Malta. The Claimant and the Defendant were both normally resident in England but at the time of the accident were stationed in Malta as members of the armed forces. Maltese law provided that general damages could not be recovered for pain, suffering and loss of amenity. The question for the House of Lords was whether or not the Claimant could recover the general damages in his claim brought in England.
The House of Lords determined that, although the Claimant’s claim would fail under the general rule of double actionability, there were clear and satisfactory grounds on which to apply the flexible exception. Lord Wilberforce particularly emphasised the fact that the parties were both normally resident in England and that no policy or interest of Malta would be adversely affected by the application of an English rule in a claim brought by one English party against another.
The difficulty with the exception is that the court in Boys did not provide a set of firm guidelines for determining when the exception could be invoked.
On behalf of Mrs Haggerty, we argued the exception rule in this claim, refuted by the Defendant, the insurer of the former ICI. The case was scheduled for a preliminary hearing in the High Court to determine the applicable law. However, shortly before the hearing, the Defendant conceded that Scots law should apply to the issue of liability and quantum in the claim.
The claim is now set down for a trial later this year to determine whether Mrs Haggerty should be awarded damages for her late husband's death due to mesothelioma and if she succeeds then the level of damages that she and other family members should be awarded under Scots law.
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