The issue of predictability: (the absence of) liability of employers for primary but low-level exposure to asbestos before 1965

The judgment of the Outer Chamber of the Court of Session in Nicola Steven Watt or Murray and Others v Lend Lease Construction (Europe) Limited [2022] CSOH 23 further clarifies foreseeability or ‘date of knowledge’ in Scottish personal injury cases relating to primary asbestos exposure.

The background

Mr Watt, a former carpenter, died of mesothelioma in 2017. The action was brought by his surviving relatives on the grounds that his condition was caused by his negligent exposure to asbestos by the defender during his employment with them. The medical evidence indicated that, on a balance of probabilities, Mr. Watt’s death was caused by his occupational exposure to asbestos.

The case against the defender was based on a breach of Regulation 20 of the Building (General Provisions) Regulations 1961. Regulation 20 created an obligation for the employer to provide adequate ventilation and suitable respirator or alternative protection, when dust or fumes were emitted. when grinding, spraying cleaning or handling materials that may be harmful to health. It has been alleged that Mr Watt was exposed to asbestos while cutting asbestos sheets to line an area approximately 20 by 25 feet of a car park ceiling in Argyle Street, Glasgow in 1963.

It is not disputed that Mr. Watt was exposed to asbestos for 3 or 4 days during his 6 months of employment with the defender. The court was satisfied that the defender had taken no steps to prevent injuries resulting from Mr. Watt’s exposure to asbestos. The issue to be determined was whether the defender was, or should have been, aware when Mr Watt was employed by them, that exposure to asbestos at the levels to which he was subjected posed a risk of injury.

decision

The question of whether liability for negligence had been established at common law or by breach of the 1961 Regulations centered on the question of foreseeability. To achieve this, the prosecutors had to establish that in 1963, the defendant should have reasonably foreseen that the asbestos exposure to which Mr. Watt was subjected gave rise to a known risk of asbestos-related injury.

The court noted that the medical publications mentioned were those most often found in cases of secondary exposure (for example, when a child was exposed to asbestos from his father’s work clothes ).

The prosecutors’ occupational hygienist testified that in 1960 there was a known link between exposure to small amounts of asbestos and the development of mesothelioma in light of the article published by Wagner in the British Journal of Industrial Medicine at that time. The court, however, did not consider Wagner’s article to have fixed the defendant with knowledge of the foreseeability of an asbestos-related injury from low exposure, given that it was a research article in a specialized medical publication. The defender’s expert view aligned with this. He said it was unreasonable to expect a company not directly engaged in asbestos-related manufacturing to have known of the risks at the time. It was important to remember that Mr. Watt was not an asbestos worker and that his exposure was intermittent and low level. The defender relied on the publication of Newhouse and Thompson in 1965. This publication was summarized in an article by Dr Alfred Byrne in the Sunday Times of October 31, 1965. This date is often referred to as the ‘watershedtime for the widespread understanding that there was no safe level of exposure to asbestos.

There ‘watershed‘ date has already been approved in Scotland by Lady Carmichael in Gibson v Babcock International Limited [2018] CSOH 78, however, was a case of “secondary exposure”, specifically exposure to asbestos by the wife of an asbestos worker because he had brought in dust on his clothes at home.

The defender’s lawyer also relied on the English case Abraham v G Ireson & Son (Properties) Ltd and another [2009] EWHC 1958 (QB). In this case, the plaintiff had been exposed to asbestos in the course of his employment before 1965 and the court found that the exposure with the first defendant was slight; and the second, modest and infrequent. The case fell through against both defenders when the predictability of the injury was taken into account. Ultimately, the court in that case was satisfied that the defender would not have known that exposure to asbestos dust was “likely to be injurious” to Mr Watt. The defendant would therefore not be expected to have taken steps to protect Mr. Watt from risk and his failure to do so cannot be negligent. The prosecutors’ case failed.

What does this mean for low level asbestos exposure cases in the future?

The impact of the case is to extend the “watersheddate of October 31, 1965 beyond cases of secondary exposure in some cases – at least in Scotland. The crucial question will always be “What should the particular defender know at the relevant time?”.