Mesothelioma date of knowledge reaffirmed by court of session

The previously-established 1965 employers’ date of knowledge in mesothelioma claims was reaffirmed by Lord Uist in a decision that was handed down by the Outer House of the Court of Session this month. Lord Uist’s examination of foreseeability, judged by the standards prevailing at the time, established that there was no breach of statutory duty or liability at common law in circumstances where exposure to asbestos dust was of a low level and took place before 1965.

Background

The circumstances behind why the claim reached the Outer House are perhaps unusual in that the living claim had previously been compromised by the defender and it was the surviving relatives’ claims that were challenged by the defender post mortem.

The deceased, James Watt, died from mesothelioma in January 2017. The deceased’s evidence was that he was one of a number of employees involved in the construction of a car park in Glasgow in 1963. He was employed by the defenders as a joiner between January and June 1963 where he alleged that he was exposed to significant quantities of asbestos dust over a period of about three or four days when cutting and fitting asbestos sheets on site. Negligence and a breach of Regulation 20 of the Construction (General Provisions) Regulations 1961 was alleged.

Regulation 20 of the 1961 Act, which came into force on 1 March 1962, states that “in connection with any grinding, cleaning, spraying or manipulation of any material there is given off any dust or fume of such character and to such an extent as to be likely to be injurious to the health of persons employed all reasonably practical measures shall be taken either by securing adequate ventilation or by the provision or use of suitable respirators or otherwise to prevent the inhalation of such dust or fume”.

Defender’s case

The defender’s case was that any exposure to asbestos during the course of the deceased’s very short period of exposure would have been secondary, intermittent and of a low level. Further, it was maintained that such exposure took place primarily outside and would not have given rise to a foreseeable risk of asbestos disease at the time, the estimated exposure being no higher than between 0.3 fibre/ml years to 8 fibre/ml years and therefore significantly lower than the Helsinki Criteria and the published research work at that time.

Both parties had obtained expert evidence to consider the relevant state of knowledge of the defender at the time of employment/exposure but it was the defender’s evidence that the court considered to be more compelling.

The defender’s expert maintained that his assessment of the levels of exposure arising from the deceased’s work would not have alerted employers to the risks of an asbestos-related disease at that time and that he would not expect a company that was not engaged in asbestos manufacturing work to have knowledge of the effects of (in his view) secondary, intermittent and low level exposure to asbestos at a time before world leading medical research experts did.

Decision

It was accepted by Lord Uist that the level of exposure to asbestos that the pursuer would have been subject to was low level and over a very short period. Following the approach of the court in Abraham v Ireson & Sons [2009] Lord Uist concluded that the defenders would not have appreciated that the deceased’s exposure was “likely to be injurious” at the time and therefore it followed that if the defenders did not know of the risks at the time then they could not have been expected to have taken steps to protect the deceased from such exposure. Lord Uist held that it was not until 1965 at the earliest that the risk of mesothelioma was more widely known with the publication of the Newhouse & Thompson report, reaffirming the accepted date of knowledge in mesothelioma claims.

Impact of the claim

Whilst the circumstances behind why only the fatal claim came before the Outer House is unusual, the question of foreseeability and its interpretation in the context of asbestos-related claims is not. The more recent case law in the UK relating to low level or intermittent exposure has been decided more in favour of pursuers/claimants rather than defenders. However, this case demonstrates that there is seemingly a distinction that the courts are prepared to make as to the absence of foreseeability on the part of defenders in relation to low level, pre-1965 exposure claims.