Advocates Library Parliament House Edinburgh EH1 1RF
Alan McLean QC, Director of the Hastie Stable, has secured dismissal of a mesothelioma case against his clients, a local authority, in Bavaird and Others v Sir Robert McAlpine and Others  CSOH 157. The Procedure Roll debate, before Lord Brailsford, took place in January 2012 and the Opinion was issued on 5th October 2012. The case concerned a workman who had been employed by a development corporation sometime in the period 1971-4 and had, it was alleged, been exposed to asbestos during his work with them. He died of mesothelioma in 2008. However, he showed no signs or symptoms of any asbestos-related disease until about 2007. In the meantime, the development corporation had been wound up and dissolved in the mid-1990s. The issue before the Court was whether the local authority might have to pay damages to his widow and other relations. This in turn depended on whether there had been a “liability” which had been transferred from the development corporation to the council under the New Town (East Kilbride)(Transfer of Property, Rights and Liabilities) Order 1996 (SI 1996/465), paragraph 2. Lord Brailsford, accepting Alan’s argument, held that there was no such liability – in the Scottish law of negligence, no liability could emerge without there being both a wrong and a resulting injury (both injuria and damnum), and as there was no such injury here before 2007 there was no liability that could be transferred to the council in the 1990s. The claim against the council was therefore dismissed. The action can continue against other defenders.
It remains to be seen whether the decision will be reclaimed. A debate before a different judge (Lady Clark of Calton) in a case raising a very similar point was heard after the hearing in Bavaird. The judge reached in essence the opposite conclusion – see Anton and Another v South Ayrshire Council and Another  CSOH 80, 2012 GWD 18-371, 11th May 2012 (paras  to ). It seems likely that the Inner House will require to decide in due course which approach is the correct one.