Bavaird & Ors v Sir Robert McAlpine Ltd & Ors [2013] ScotCS CSIH_98 (20 November 2013)

Bavaird & Ors v Sir Robert McAlpine Ltd & Ors [2013] ScotCS CSIH_98 (20 November 2013)

On a proper construction of the 1996 transfer order, the word 'liabilities' includes potential and contingent liabilities arising from acts done by EKDC prior to transfer, even if the actionable harm (damnum) occurred after the transfer. The statutory order expressly provides that acts done by EKDC are to be treated as done by the council, ensuring successor liability for post-transfer manifestation of industrial disease caused by pre-transfer exposure.

Citation
[2013] ScotCS CSIH_98
Parties
Pursuers and Reclaimers: Gordon David Bavaird and Others; First Defender (assoilzied): Sir Robert McAlpine Limited; Second Defender (non Participating): Watson Construction Limited; Third Defender (non Participating): James Laidlaw & Sons Limited; Fourth Defender and Respondent: South Lanarkshire Council
Jurisdiction
Scotland
Judgment Date
20 November 2013
Procedural Posture
Personal Injury (mesothelioma, Delict) / Appeal (reclaiming Motion) From Outer House to Inner House
Outcome
Reclaiming motion allowed; interlocutors of 5 and 15 October 2012 recalled; proof before answer allowed; case remitted to Lord Ordinary to proceed as accords; expenses reserved.
Legal Topics
Transfer of Liabilities on Dissolution of Statutory Bodies, Successor Liability for Industrial Disease, Construction of Statutory Instruments, Contingent and Potential Liabilities, Mesothelioma Claims, Asbestos Exposure, Local Authority Liability
Personal Injury Delict Statutory Interpretation Public Law Transfer of Liabilities on Dissolution of Statutory Bodies Successor Liability for Industrial Disease Construction of Statutory Instruments Contingent and Potential Liabilities +3 more

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Parties

Gordon David Bavaird and Others

Pursuers and Reclaimers

Sir Robert McAlpine Limited

First Defender (assoilzied)

Watson Construction Limited

Second Defender (non Participating)

James Laidlaw & Sons Limited

Third Defender (non Participating)

South Lanarkshire Council

Fourth Defender and Respondent

Procedural Posture

Personal Injury (mesothelioma, Delict) / Appeal (reclaiming Motion) From Outer House to Inner House

Legal Issues

  1. 1 Whether South Lanarkshire Council, as statutory successor to EKDC, is liable for delictual claims arising after the transfer, where the injury (mesothelioma) manifested post-transfer but the exposure occurred pre-transfer.
  2. 2 Whether the statutory transfer order encompassed potential or contingent liabilities not yet actionable at the time of transfer.

Ratio Decidendi

On a proper construction of the 1996 transfer order, the word 'liabilities' includes potential and contingent liabilities arising from acts done by EKDC prior to transfer, even if the actionable harm (damnum) occurred after the transfer. The statutory order expressly provides that acts done by EKDC are to be treated as done by the council, ensuring successor liability for post-transfer manifestation of industrial disease caused by pre-transfer exposure.

Court Disposition

Reclaiming motion allowed; interlocutors of 5 and 15 October 2012 recalled; proof before answer allowed; case remitted to Lord Ordinary to proceed as accords; expenses reserved.

Orders

  • Recall interlocutors of 5 and 15 October 2012.
  • Allow proof before answer.