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A recent decision of the Inner House of the Court of Session, Scotland’s highest civil Court, has highlighted important differences between the law of Scotland and England about who can claim,

where they can claim and how much compensation they can get in cases of the loss of society of a relative from mesothelioma or fatal asbestosis. The case was Docherty’s Executors and Others v The Secretary of State for Business, Innovation and Skills (2018) CSIH 57

The Facts

Mr Docherty (D) worked in Scotland for a now defunct ship building company between 1941 and 1947, where it is believe he was exposed to asbestos. He then went to live in England. He started suffering breathing problems from about 2003 after he had moved to England until he died there in 2011. One of the questions before the Court was whether D must claim in England or whether it was open to him to claim in Scotland. Because the exposure took place before 1995 the Court decided that the law of the place of exposure applied (Scotland) and not the law of the place where D began to suffer injury, (England).

In such a case where should you sue

It is much better to sue in Scotland than England because:-

A number of relatives who cannot claim loss of society in England can claim in Scotland, including:-

  • A divorced spouse;
  • A cohabitee; and
  • An unmarried father. 

Compensation

In England the amount of compensation is limited to what is known as the Statutory Bereavement Award. The current limit is £12,980. 

In Scotland there is no fixed limit. The amount of compensation depends on the closeness and length of the relationship between the claimant and the deceased. Depending on circumstances an award can be made by a Civil Jury and these can be very high. 

Anomalies in England

There are several, including

  • (a)Married fathers can claim but unmarried fathers can’t;
  • (b)Spouses can claim but Cohabitees can’t
  • (c)If the deceased is over 18 and unmarried no one can claim. 

Accordingly if you have the choice of claiming or suing in Scotland or England it is much better to do so in Scotland.

After 1995

If the exposure happened or happens after 1995 the position is different. Now it’s the law of the place where the injury starts that applies. So in the case of D had the exposure taken place after 1995 he would have had to claim/sue in the place where he lived, i.e. England. But, there are two exceptions:- 

  • It is open to the Claimant and Opponent to agree that Scots Law can apply; and
  • If both the Claimant and Opponent live in Scotland at the time the injury occurs then Scots Law applies

If you would like to discuss loss of society claims or any personal injury matters with our team, please call 0800 988 8082.

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