Scottish Court of Session Decisions

[1] I refer to my Opinion of today's date in Gilbride v Blythswood Shipbuilding Co. the motion and submissions in which were heard at the same time as in this case. This case, like that of Gilbride is one raised by relatives of a deceased former employee of the defenders who contracted mesothelioma. The death was on 3^rd November 1998. The action was raised in December 1999 and the record closed on 8^th June 2000. A proof before answer was agreed and thereafter fixed for 30^th January 2001. Because of liquidation proceedings in respect of the defenders' insurers, that diet was discharged and another diet fixed for 3^rd July 2001.

[2] The pleadings in this case are very similar to those in Gilbride, with the defence on the merits consisting of general denials and being little more than skeletal. On about 17^th May 2001, the defenders intimated a Minute of Amendment in substantially, but not identical, terms as that in Gilbride. This was answered in a similar way also. By adjustment, the defenders also added a number of matters regarding the deceased's medical condition and an admission that:

The succeeding averments include those in the original Minute of Amendment and the admission is thus essentially under reference to the defenders main point that the pursuers cannot prove which defender actually caused the mesothelioma, which, they say, results from a single fibre and not an accumulation of fibres over time.

[3] The submissions in this case were the same as those in Gilbride and it was not suggested that the result should differ between the two cases since the issues were basically identical. Although there are variations in the timings of the case and Minute and some differences in the proposed changes to the pleadings, for the same reasons which I have given in the Opinion in Gilbride, I will allow the record to be amended in terms of the Minute of Amendment and Answers as adjusted and discharge the diet of proof.