Widow of mesothelioma victim allowed to pursue damages action after judges refuse appeal

The widow of a joiner who died of an asbestos-related condition will be allowed to pursue her damages claim against her late husband’s former employers after the company’s insurers failed in an appeal.

Kenneth Ferguson, who died after contracting mesothelioma, had in the months prior to his death in tried to bring an action against J&A Lawson (Joiners) Limited, but his lawyers sued another firm with a similar name by mistake.

The Lord Ordinary, Lord Uist allowed his surviving relatives to bring the action outwith the three-year limitation period after ruling that it would be “unjust” to refuse, but the defenders challenged the decision on the question of time-bar, arguing that the Lord Ordinary “erred in law”.

However, Lady Paton, Lady Smith and Lord Bonomy in the Court of Session Inner House refused the appeal, stating that it would be “equitable to allow this action to proceed”.

The court heard that Mr Ferguson – who was employed by J&A Lawson (Joiners) Limited between 1968 and 1973 – died aged 72 of right lung mesothelioma in August 2006.

The court heard that he first instructed solicitors in June 2006 to pursue a claim for damages based on his exposure to asbestos in the course of his employment as an apprentice with the company.

But the letter of instruction sent by the firm to a solicitor advocate erroneously described the proposed defenders in the action as J & A Lawson Limited, which had “no connection whatsoever” with J & A Lawson (Joiners) Limited.

A summons was drafted against J & A Lawson Limited and served at the registered office of J & A Lawson (Joiners) Limited within three years of Mr Ferguson’s death.

The action was undefended and a decree in absence was granted against J & A Lawson Limited in July 2011.

After learning of the error, widow Betty Ferguson and other surviving relatives, raised an action for damages against the correct company, averring that he contracted the disease as a result of their negligence and breach of statutory duties.

However, as the action was not raised until May 2012, the defenders took a plea of time-bar.

The pursuers accepted that the action was time-barred under section 17 of the Prescription and Limitation (Scotland) Act 1973, but submitted that the court should allow it to be brought outwith the limitation period on the ground that it would be “equitable” to do so by virtue of section 19 of the Act.

The broad proposition for the defenders was that the claim was “stale” and of “doubtful merit”. It was submitted that the pursuers were responsible for the actings of their solicitors, the defenders would be prejudiced if the action were allowed to proceed and there was an alternative remedy against the solicitors’ firm for “professional negligence”.

However, the judge held that the fact that the first action was raised against the wrong company had not in any way prejudiced the insurers of the defenders, who were in effect the party defending the action.

On appeal, the defenders advanced 11 propositions in arguing that the Lord Ordinary had “erred in the exercise of his discretion” and that the action should be dismissed.

However, the appeal judges refused the reclaiming motion and adhered to the interlocutor of the Lord Ordinary.

Delivering the opinion of the court, Lady Paton said: “Taking into account the facts found by the Lord Ordinary, the submissions made to him, and the conclusion reached by the Lord Ordinary, we are not persuaded that the defenders have demonstrated that the Lord Ordinary made a material error of law, or made a critical finding of fact which has no basis in the evidence, or showed a demonstrable misunderstanding of relevant evidence, or displayed a demonstrable failure to consider relevant evidence, or reached a decision which cannot reasonably be explained or justified. In the result, it is our opinion that it would be equitable to allow this action to proceed.”