Judge allows proof before answer in asbestos damages claim

The family of former tradesman Frederick Forbes who died of an asbestos-related illness have been allowed to proceed with action against executor of the estate of his former employer, despite claims from the defender that his liability had ended following his discharge.

Lord Clark has granted a proof before answer in a case brought forward by Mary Forbes, the widow and family of Frederick Forbes, in an action for damages under section 4(3)(b) of the Damages (Scotland) Act 2011. The action was made against the estate of Mr Forbes’ former employers and their liability insurers following Forbes’ death from mesothelioma in 2014.

The case was brought against Enos McLean as executor of his late father - Enos McLean (Senior) - for who Mr Forbes worked for between 1957 and 1964, during which he was exposed to asbestos.

Duties of an Executor

Confirmed as executor in 1994, the defender averred that administration of the estate was completed in 1995, at which point his liability terminated. As the termination occurred long before the action was raised, he sought dismissal on the basis it was irrelevant and lacking in specification.

The key issue for the court was whether a relevant claim could still be made against the defender in his capacity as executor of his deceased father’s estate if the estate had been ingathered and distributed, and Mr McLean subsequently discharged as executor thereafter.

After consideration of legal precedent, Lord Clark ruled that Assets Co v Falla’s Trustee (1894) and Assets Co v Bain’s Trustee (1904) supported the pursuers’ case, ruling: “In my view, no sound reasons exist for concluding that the claim in the present case, which, based on the authorities, is competent, can be said to be nonetheless irrelevant. I conclude that the pursuers’ case is competent and relevant”.

Read Lord Clark’s opinion in full here.

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