In cases involving an individual who has been exposed to asbestos in the course of their employment, quite often the employer will no longer be trading. This is usually due to the passage of time as the effects of asbestos are not usually seen until a significant number of years (usually around twenty) after the exposure.
If a company is no longer trading then we will seek to identify the employers’ liability insurers for the period of time that the individual was employed in order to bring a case against them.
It is inevitable however that there will be cases where the individual worked for a sole trader or partnership and there was no insurance in place. Given the length of time that has passed since the exposure quite often the sole trader or individuals who formed the partnership will no longer be living. This gives significant difficulties in pursuing a claim.
There have now been some developments which suggest that in the circumstances where there is no insurance and the sole trader/partners are deceased that it may be possible to sue their estate.
An action was raised by Mary Forbes, widow of the late Frederick Forbes, and their four children and three grandchildren following the death of Mr Forbes in December 2014 from mesothelioma. It was averred that the Mr Forbes had contracted mesolthelioma as a result of his exposure to asbestos dust and fibres during the course of his employment as a painter and decorator.
Mr Forbes had worked for Mr Enos McLean (Senior). Mr McLean (Senior) was a partner in a now dissolved partnership which carried on business as painters and decorators. Mr Forbes worked for the partnership from 1957 to 1964.Mr McLean (Senior) was now deceased. The case was therefore raised against Enos McLean (Junior) in his capacity as the executor of his father’s estate.
Positions of the Pursuers and Defenders
The defenders in this case argued that the action should be dismissed. It was their position that the case against Mr McLean (Junior) was irrelevant. They were also of the position that it was bound to fail as any liability on the part of Mr McLean (Senior) had ended when the estate was distributed to beneficiaries under his will. This had occurred long before the current action had been raised.
The Pursuers’ position was that the pleadings made clear that the purpose of the action was to constitute a claim against the estate of Mr McLean (Senior), who was a former partner in the firm. The Pursuers did not admit that the estate had been ingathered and distributed and that issue, and the concomitant question of implied discharge, was therefore a matter for proof, it was submitted.
The purpose was not to claim against the beneficiaries, but rather to constitute a claim against the estate so that the insurers would require to meet it.
Lord Clark observed that the central issue was whether or not Scots law recognised a remedy against an executor. He was also of the opinion that there was a “wider practical and policy question”: where an employee claims to have suffered personal injury at the time of his employment and the employer was either a partner in a partnership or was a sole trader, who has died, can the former employee (or his family members if he is also now deceased) sue the executor of the former partner or sole trader, perhaps long after the executor has ingathered and distributed the estate, as a means of seeking to cause the insurers under the employers’ liability insurance policy to meet the claim?
In considering this position, Lord Clark stated: “If the injured person was employed by a company which was later dissolved, the company can of course be restored to the Register of Companies for the purposes of proceedings being raised. It was implicit in the pursuers’ position that, where the employer was a partnership or a sole trader, the law should allow proceedings to be taken against the former executor of a deceased partner in the partnership or of the deceased sole trader, because otherwise there would be a potentially significant lacuna in the provision of means of redress under Scots law.” He therefore allowed a Proof before Answer.
The decision of Lord Clark in this case states that it is possible to raise a claim against the estate of the sole trader/partner of a business that has caused an individual to be exposed to asbestos. Whether or not the case of Mary Forbes and others will be successful has still to be determined. Jackson Boyd will be following the progression of this case and will keep you updated.
At Jackson Boyd we have a great deal of experience of dealing with asbestos cases. If you have been diagnosed with an asbestos related condition and believe that it may be due to your working conditions please contact us online by clicking here or speak to a member of our specialist team on 0333 130 6317.