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  4. Judge allows asbestos claim against employer's discharged executor

Judge allows asbestos claim against employer's discharged executor

29th August 2018 | executries , reparation

Family members of a man who died of an asbestos-related disease have been allowed to proceed with an action against the executor of his former employer, despite the defender's claim that his liability had come to an end following his discharge.

Lord Clark in the Court of Session allowed proof before answer in a case brought by Mary Forbes and others, the widow, children and grandchildren of Frederick Forbes, who died of mesothelioma in 2014.

The case was brought against Enos McLean as executor of his late father, a partner in a now dissloved firm of painters and decorators for whom Mr Forbes was said to have worked betwen 1957 and 1964, in the course of which he was exposed to asbestos.

Now in his 80s, the defender was confirmed as executor in 1994, and averred that administration of the estate was completed around March 1995 at which point his office terminated. He sought dismissal on the basis that the action was irrelevant and also lacking in specification. The pursuers sought to constitute a claim against the estate, in order to make a claim against the firm's former employers' liability insurers.

Argument centred on the effect of the decisions in Assets Co v Falla's Trustee (1894), and in Assets Co v Bain's Trustee (1904) at the different levels at which it had been heard – in particular as the Lord Ordinary, Lord Kyllachy, having given a view in the earlier case supporting the pursuers' case, concluded in the later litigation that he had been wrong. The Inner House judges had expressed differing views and it was not clear that the House of Lords had ruled on the point.

After considering the authorities Lord Clark ruled that Falla's Trustee supported the pursuers' case, albeit without very detailed reasoning, that a majority on the Inner House in Bain's Trustee had also supported that view, and that although the House of Lords had allowed the appeal and restored the decision of the Lord Ordinary, it did not appear that they had intended to overrule Falla's Trustee but had decided the case on a different basis. He was therefore bound by the two Inner House decisions.

The judge observed: "Questions remain, if the pursuers succeed, about the usefulness and effect of any decision against the defender in the present action. In particular, such a decision cannot be res judicata in a claim against the beneficiaries (the making of such a claim being in any event, I note, disavowed by the pursuers). Whether it can assist in relation to a claim against the insurers may depend on [certain points such as how the policy might be an asset of the estate]. Whether any issue arises as to the insolvency of the estate and thus about the availability of any right under the legislation dealing with third party rights against insurers also remains to be seen. I offer no view on these issues, not having been addressed on them in any detail.

"As presently advised, however, I do not consider that I can conclude that the pursuers’ case is either unnecessary or futile. Of course, if executors or trustees can be sued in that capacity many years after their roles have, as they see it, terminated, that may be viewed as an unfortunate burden facing such persons... However, all that the authorities founded upon by the pursuers concern is the question of suing for the purposes of constituting a claim against the estate and it may be that a person sued in that context would not see any need to defend the claim."

He added: "Had I not been of the view that the pursuers’ claim against the executor, even if discharged, is competent and relevant, I would have accepted the pursuers’ submission that whether there has been a discharge and its legal effect in circumstances such as the present are matters to be dealt with after proof."

Click here to view the opinion.

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