The Transmission of Liability for Exposure to Asbestos: Bavaird v Sir Robert McAlpine Ltd in the Inner House
| Date | 01 May 2014 |
| Author | Martin Hogg |
| Pages | 270-274 |
| DOI | 10.3366/elr.2014.0211 |
| Published date | 01 May 2014 |
I have argued elsewhere
M Hogg, “Liabilities and obligations: two different concepts?” (2013) J of Professional Negligence 186.
that the decision at first instance was an unfortunate one. It seemed perverse that someone's right to claim damages for an asbestos-related injury should be dependent upon whether or not his employer was still in existence (in which case recovery would be undoubted), or whether its rights and liabilities had been taken over by a successor (in which case, according to the first instance judgment, there would be no transmission of liability). Holding that liabilities do not transmit to successor authorities thwarts the underlying purpose of the very legislation (the “transfer order”) transferring rights and liabilities in such cases, and it is therefore heartening to see a purposive approach to interpreting such legislation being approved of in both of the substantive judgments in the Inner House (those of Lady Paton and Lord Drummond Young)The outcome at first instance was reached on a judicial assessment of the transfer order as not applying to contingent liability which had not yet matured at the date of the transfer into actual liability to pay compensation to injured parties, and which, looked at on that date, might never so mature. This meant that those who had been exposed negligently to asbestos (this constituting the
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