Docherty v Secretary of State

 

The recent Decision of the Court of Session in the case of Docherty v Secretary of State has potentially wide-ranging and damaging consequences in asbestos-related disease cases where the individual affected, or their family, live outwith or happen to be outwith, Scotland at the time of diagnosis of the condition.

Conversely, if an individual lives, or happens to be in Scotland at the time of their diagnosis, then there may be more beneficial consequences.

The premise of the decision is that the law applicable in a case of asbestos disease is that of the jurisdiction in which there is “concurrence of damnum and injuria”. That is to say, the place where the negligent act (injuria) and the damage caused (damnum) BOTH exist, which, according to the Judgement, is at the point of diagnosis.

The practical consequence is that if an individual has been exposed to asbestos in Scotland but is diagnosed elsewhere, then it will be the law of that other country which determines whether compensation is payable. If no compensation is payable (such as for pleural plaques in England or mesothelioma in New Zealand) then there will be no payment to the person or their family.

However, if someone has been exposed in one of those countries but is diagnosed or dies in Scotland, then the Scots law of damages will apply and they will get compensation, even though they wouldn’t in the county which exposed them. The permutations are endless.

The Appeal will be heard on the 3rd/4th July 2018.  We will keep you updated.

 

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