Gordon David Bavaird And Others V. Sir Robert Mcalpine Limited+watson Construction Limited+james Laidlaw & Sons Limited+south Lanarkshire Council
| Jurisdiction | Scotland |
| Judge | Lord Marnoch,Lady Paton,Lord Drummond Young |
| Judgment Date | 20 November 2013 |
| Neutral Citation | [2013] CSIH 98 |
| Court | Court of Session |
| Published date | 20 November 2013 |
| Date | 20 November 2013 |
| Docket Number | PD2948/10 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| [2013] CSIH 98 | |
| Lady Paton Lord Drummond Young Lord Marnoch | PD2948/10 OPINION OF LADY PATON in the cause GORDON DAVID BAVAIRD AND OTHERS Pursuers and Reclaimers; against (FIRST) SIR ROBERT McALPINE LIMITED; (SECOND) WATSON CONSTRUCTION LIMITED; (THIRD) JAMES LAIDLAW & SONS LIMITED; (FOURTH) SOUTH LANARKSHIRE COUNCIL Defenders (Fourth Defender and Respondent) _______________ |
Pursuers and Reclaimers: Marshall, Solicitor Advocate, Christine; Thompsons
(Non-participating parties: Second and Third Defenders)
Fourth Defender and Respondent: A McLean QC, Watson, Solicitor Advocate; Simpson & Marwick WS
20 November 2013
Introduction
[1] The late Mr Bavaird was a joiner. He had several employers during his working life. In this personal injuries action at the instance of his executor and relatives, seeking damages for his death due to mesothelioma, it is averred that he was employed by East Kilbride Development Corporation (EKDC) from 1971/2 until 1973/4. It is further averred that, while working for EKDC, he -
"carried out general maintenance work on local authority housing stock. In the course of this work he required to cut and fix Asbestolox tiles to repair damaged roof soffits. He did this by cutting and adapting the tiles with a hand saw. He then drilled through the tiles and fixed [them] in place with screws [Statement 4(d)]."
That work, it is averred, exposed Mr Bavaird to asbestos negligently and in breach of statutory duty.
[2] During 1992 to 1995, EKDC was wound up. In 1995 and 1996, its assets and liabilities were transferred to South Lanarkshire Council (the fourth defenders). At that time, Mr Bavaird showed no signs of illness. It is therefore accepted that the pursuer was not, at that time, in a position to raise an action of damages for negligence against any employer, even if the thought had crossed his mind.
[3] In 2007 Mr Bavaird began to suffer illness. He was diagnosed as having contracted mesothelioma as a result of exposure to asbestos. He died on 25 March 2008.
[4] Mr Bavaird's executor and family raised the current action seeking damages from Mr Bavaird's former employers, namely the defenders designed in the instance. The fourth defenders contend that, as Mr Bavaird was not suffering from any asbestos-related illness in 1995-1996, there was no concurrence of damnum and injuria, and accordingly any delictual liability on the part of EKDC did not at that stage exist. A non-existent liability could not be transferred. Thus they contend that they have no liability for Mr Bavaird's subsequent development of mesothelioma, and they should be assoilzied from the present action. They aver:
"As at that date, there was no such right or liability relative to the pursuers or to the deceased and relative to the deceased's employment with East Kilbride Development Corporation. [Answer 2 page 13C-D of the Reclaiming Print]"
That averment is referred to again in answer 6.
[5] The pursuers' averments in response are as follows:
"... The fourth defender is the statutory successor to the property, rights and liabilities of East Kilbride Development Corporation by virtue of the New Town (East Kilbride)(Transfer of Property, Rights and Liabilities Order 1996 (SI 1996/445). Those liabilities included the contingent liability to make reparation to the pursuer by virtue of the negligent exposure to asbestos of the deceased during his employment with the development corporation as described in paragraph 4(d) of the statement of claim. With reference to the fourth defender's averments in answer, admitted the property, rights and liabilities of the development corporation vested in the fourth defender on 1 April 1996 ... [Statement 2]"
Decision in the Outer House
[6] A debate on the issue took place between the pursuers and the fourth defenders before Lord Brailsford. The second and third defenders did not participate. The first defenders had been assoilzied on 6 December 2011.
[7] In his opinion dated 5 October 2012, the Lord Ordinary concluded that no liability had been transferred to the fourth defenders, for the reasons he gives. In particular he noted the requirements for the existence of a contingent obligation; the guidance given in Dunlop v McGowans 1980 SC (HL) 73 and Rothwell v Chemical & Insulating Co Ltd and another [2008] 1 AC 28; and concluded:
"[16] ... at the date of the dissolution of EKDC in 1996 there was no obligation owed by that body to the deceased. There plainly existed a risk that the deceased would develop a condition that would give rise to an actionable right but at the critical date there existed 'a mere possibility of damnum'. It follows that, in my opinion, there was in 1996 no obligation capable of being transferred from EKDC to any successor authority.
[17] I am accordingly of the view that no contingent liability existed as at 1996 which was capable of being transferred by the 1996 order. I am therefore satisfied that the argument advanced by the fourth defenders is well founded and will dismiss the action insofar as against them."
[8] By interlocutor dated 5 October 2012 the Lord Ordinary duly dismissed the action insofar as directed against the fourth defenders, and on 15 October 2012 awarded them expenses. The pursuers reclaimed.
The statutory framework
[9] The New Towns (Scotland) Act 1968 as amended by the Enterprise and New Towns (Scotland) Act 1990 provides inter alia:
"Winding up of development corporation.
36. - (1) Where the Secretary of State is satisfied that the purposes for which a development corporation were established under this Act have been substantially achieved he may by order (a 'winding up order') provide for the winding up of the corporation ...
(3) A winding up order shall name the day on which the winding up of the corporation is to commence and the day by which it is to be completed and may -
(a) stipulate a timetable for the winding up ...
(f) contain such incidental, consequential, supplementary, transitional or ancillary provisions (including provision modifying the effect of any enactment as it relates to the corporation) as the Secretary of State thinks necessary or expedient ....
36D. - (1) At any time after a winding up order has been made the Secretary of State may by order (a "transfer order"), made by statutory instrument ... provide for the transfer or any property, rights and liabilities of a development corporation to any person, including (without prejudice to this generality) ... a local authority or a statutory undertaker.
(2) A transfer order may
(a) transfer the property, rights and liabilities on such terms (which may include transfer either with or without consideration) as the Secretary of State may provide in the order ...
(c) contain any such incidental, consequential, supplementary or ancillary provisions as the Secretary of State thinks necessary or expedient for the purposes of the order.
(3) Any property, right or liability transferred to any person by a transfer order shall vest in that person on such date as may be specified in the order ..."
[10] The New Town (East Kilbride) Winding Up Order 1992 (SI 1992/355) provided:
"3. The development corporation shall be wound up and the winding up shall - (a) commence on 1st March 1992; and (b) be completed by 31st December 1995."
[11] The New Town (East Kilbride) (Transfer of Property, Rights and Liabilities) Order 1995 (SI 1995/3068) - "the 1995 transfer order" - came into force on 31 December 1995 and provided inter alia:
"2.- (1) Subject to the provisions of this Order -
(a) the heritable property specified in the Schedule to this Order, insofar as owned by the development corporation immediately before the day on which this Order comes into force; and
(b) the development corporation's interest immediately before the day on which this Order comes into force in the standard securities, minutes of agreement, policies of assurance and other contracts and agreements specified in the Schedule to this Order, shall, together with the development corporation's rights, liabilities and obligations pertaining thereto, transfer to and vest in the council at the beginning of the day on which this Order comes into force."
[12] The New Town (East Kilbride) (Transfer of Property, Rights and Liabilities) Order 1996 (SI 1996/465) - "the 1996 transfer order" - came into force on 1 April 1996 and provided inter alia:
"Transfer of property, rights and liabilities to the council
2. Any property, rights or liabilities of the development corporation shall transfer to and vest in the council on 1st April 1996.
Incidental and supplementary provisions
3. Anything done before 1st April 1996 by, or on behalf of, or in relation to, the development corporation for the purposes of or in connection with the property, rights and liabilities transferred by article 2 of this Order shall, on and after 1st April 1996, be treated as having been done by, or on behalf of, or in relation to, the council; and, accordingly, without prejudice to that generality, on and after 1st April 1996 -
(a) any legal proceedings by, or in relation to, the development corporation, or to which the development corporation is a party, for the purposes of, or in connection with, the said property, rights and liabilities may be continued by, or in relation to, the council; and, accordingly, references to the development corporation in any process or other document issued, prepared or employed for the purposes of any such proceedings before any court, tribunal or other body shall be taken as referring to the council;
(b) every contract or agreement, whether written or not, to which the development corporation is a party for the purposes of, or in connection with, the said property, rights and liabilities shall have effect in relation to such property, rights and liabilities as if the council was the party thereto in place of the development corporation and as if...
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