The Court of Session has refused to allow the relatives of a mechanical fitter who died as a result of exposure to asbestos to amend their claim in their personal injury action for damages against the state.
A judge held that the new claim set out in the minute of amendment, which was lodged after the expiry of the three-year time limit, “radically altered” the case.
Lord Ericht heard that the first purser Louisa Docherty – widow of the late James Docherty – and 23 other relatives had brought a damages action for alleged wrongdoings that occurred in England against the Secretary of State for Business Innovation and Skills, the first defender, as successor to the rights and liabilities of Scott’s Shipbuilding and Engineering Company Limited, and Imperial Chemical Industries Limited, the second defender.
The pursuers averred that the deceased was a mechanical fitter and served an apprenticeship as a marine engineer with the first defenders from 1941 to 1947, and that in the course of that employment he was exposed to asbestos dust.
Then from about 1954 to 1979 the deceased was employed as a maintenance fitter by the second defenders at a plant in Wilton on Teesside, during which time he was exposed to further substantial quantities of asbestos dust.
It was said that as a result of these exposures he developed asbestosis and pleural plaques and died on 30 September 2011.
The action was served on 29 September 2014, the eve of the triennium, and in the case as originally pled the pursuers all sought damages from the defenders jointly and severally under the Damages (Scotland) Act 2011.
There was no dispute that the 2011 Act had no force in England, nor was there any dispute that English law would deny a remedy to the pursuers with the exception of the first pursuer.
The claim that could be sought in English law was under the the Fatal Accidents Act 1976, but the only person who would be entitled to an award of damages was the first pursuer.
The case called before Lord Boyd of Duncansby on the Procedure Roll on the second defenders’ plea that the case against them was “irrelevant” because the wrongs complained of occurred in England and so the 2011 Act could not apply.
Lord Boyd dismissed the action in so far as it was brought by the second to 24 pursuers against the second defenders and said he was minded to dismiss the action against the second defenders brought by the first pursuer, but he allowed the first pursuer to table a minute of amendment to bring a claim under the 1976 Act.
The minute deleted in its entirety the claim originally made by the first pursuers and replaced that original claim with a new English law claim for solatium and a claim for the care provided to the deceased by his family during his illness, and for the funeral costs and a claim for loss of financial support for the period up to the death of Louisa Docherty, who had died in the interim.
It also introduced an averment stating that the first pursuers’ claims as executors of Mr and Mrs Docherty were made under section 1 of the Law Reform (Miscellaneous Provisions) Act 1934 and section 2 of the Fatal Accidents Act 1976, both of which apply in England but not in Scotland.
The issues for the court were: whether amendment to bring in the pursuers new claim after the expiry of the triennium was governed by Scots law or English law; if Scots law applied, whether the court should exercise its discretion in favour of amendment; if English law applied, whether the amendment should be allowed; and whether the case against the first defenders should be dismissed.
In deciding whether or not to allow amendment in the circumstances of this case, the judge observed that the court was not applying the law of limitation.
It was exercising its “general discretion to control amendment of pleadings” and therefore section 23A of the Prescription and Limitation Act 1973 did not apply and the matters were governed by the Scots law on amendment of pleadings.
Having come to the view that the Scots law of amendment would apply, the judge refused to exercise his discretion to allow the amendment after the expiry of the triennium.
In a written opinion, Lord Ericht said: “In my opinion the proposed amendment would have the effect of radically altering the first pursuers’ case. To adopt the language used in the MacPhail v Lanarkshire Health Board 1951 SC 301, the first pursuers have not presented the old front from a new angle, but have offered a new front: they have not only made alterations to the super structure but have changed the foundation of the action.
“The foundation of the action as originally pled has been held by Lord Boyd to be irrelevant. Now, for the first time the first pursuers are seeking to introduce a new foundation by introducing a new claim based on English law provisions which do not feature in the original pleadings.
“Without the amendment, the first pursuers’ case against the second defenders would be, like that of the second to twenty-fourth pursuers, irrelevant and would fall to be dismissed.
“Furthermore, the first pursuers could have avoided the difficulty in which they now find themselves by bringing an action based on English law in England within the time limit.
“Further, were amendment to be allowed, the defenders would suffer prejudice in that the action would continue notwithstanding the decision of Lord Boyd on the original claim. In all the circumstances, I exercise my discretion against allowing amendment.”
He continued: “The consequence of that is that the first pursuers’ case against the second defenders is irrelevant for the reasons set out in the opinion of Lord Boyd. Accordingly I dismiss the action in so far as against the second defenders.”
The judge added that had he required to consider whether he would have allowed amendment had the question of amendment been governed by English law rather than Scots law, he would have appointed a preliminary proof before answer.
As to whether the case should be dismissed against the first defenders, Lord Ericht said the appropriate place for the arguments to be debated and considered would be at a further Procedure Roll hearing.