When a Claimant is first diagnosed with an asbestos-related disease and starts a legal claim, it is important that they consider all possible sources of asbestos exposure. The solicitor will meet with the Claimant to discuss their work history, and it is crucial that exposure which occurred outside of England is also considered.

If a claimant was exposed to asbestos whilst working in Scotland, they may be entitled to bring a claim under Scots law, even if they reside in England.

The assessment of damages under Scots law differs to English law. Scots law allows an award for loss of society and allows extended family members to claim for their loss. The purpose of the loss of society award is to compensate family members for the distress, anxiety, grief and sorrow caused by the wrongful death of their loved one. Under Scots law, a loss of society award can be claimed on behalf of a range of family members, which includes the deceased’s partner, parents, children, siblings, grandparents or grandchildren. The award is assessed on a case by case basis and awards an amount the court perceive to be appropriate in the circumstances of the individual case. There is no equivalent of this under English law.

Under English law, the Fatal Accident Acts allows for a bereavement award to be awarded to the spouse or civil partner of the deceased. The purpose of this award is similar to the loss of society award under Scots law, in that it is to compensate for the grief of losing a loved one. However, the pool of relatives who can claim is much smaller under the Fatal Accidents Act 1976. It is also a fixed statutory sum of £15,120. Only those under the Act can claim this award. Multiple awards cannot be made under English law.

The differences between the way the courts in England and Scotland compensate loved ones was seen recently in the case of Haggerty-Garton & Ors v Imperial Chemical Industries Ltd [2021]. The case was brought in England, but Scots law was the applicable law when assessing liability and quantum as the exposure to asbestos had taken place in Scotland. The case was brought by the late Mr Haggerty’s widow, on behalf of herself and her three sons. Mr Haggerty also had two daughters from a previous marriage. When the court considered the amount to be awarded for the widow’s loss of society award, they considered the nature of their relationship and the fact that they had built a happy life together. The court awarded his widow £115,000 for loss of society. Further awards were made for the children, and these were also assessed based on the facts of the case and paid in addition to the amount awarded to the widow.

The case of Haggerty shows a claim under Scots law should always be considered, and if appropriate, pursued. The amount the spouse was awarded for the loss of society award was significantly higher than the bereavement award under English law would have been, and in addition the use of Scots law allowed for a much wider class of relatives to claim. Under English law, there is only one sum awarded to a limited class of claimants. As was seen in Haggerty, the children were able to claim in addition to the widow.

It remains unfair that, in comparison, claims for a bereavement award under English law are significantly lower. There clearly needs to be a change in the law which brings the claim under English law more in line with the Scots law position, and a change which also allows the unique facts of each case to be considered by the court when assessing the bereavement award under English law to ensure that the loved ones of asbestos-disease sufferers are fairly compensated.