The date of knowledge argument in asbestos cases: still going strong
Nicola Steven Watt or Murray and Others v Lend Lease Construction (Europe) Limited [03.03.22]
The recent Court of Session (Outer House) decision in this case highlights the difficulty a claimant faces in establishing foreseeability of asbestos related injury in circumstances where the claimant’s exposure to asbestos has been low level and took place prior to 1965.
The family of the deceased, James Watt, sought damages arising from the deceased’s death from mesothelioma, which they alleged he contracted in the course of his employment with the defender, formally known as Bovis Construction Limited. The deceased’s evidence was provided by way of a written statement.
The deceased was employed as a joiner for a six month period between January 1963 and June 1963, working on the construction of shop premises including a basement car park in Argyle Street, Glasgow. He had undertaken one task during his employment where he came into contact with asbestos when he was responsible for fitting asbestos ceiling tiles within the car park. He was required to cut through asbestos sheeting, hand plane the edges, then fix the tiles within a timber frame, which involved drilling holes into the board for screws to be fitted. The work was carried out above head height, resulting in asbestos dust raining down on him. This work was carried out constantly over a period of three to four days without any provision of personal protective equipment, nor was any training or warnings given about the dangers of asbestos dust.
The family maintained a claim at both common law and in terms of Regulation 20 of the Construction (General Provisions) Regulations 1961 (the Regulations).
The Regulations imposed a duty on employers to take all reasonably practicable measures, by securing adequate ventilation or by the provision and use of suitable respirators, to prevent the inhalation of dust or fumes which was likely to be injurious to the health of persons when engaged in activities including grinding, cleaning, spraying or manipulation of any material.
The issue to be determined was whether the defender was or ought to have been aware that the level of asbestos exposure to which the deceased was exposed in the course of his employment gave rise to a foreseeable risk of injury, given the standards applicable at the time.
The defender emphasised that the exposure to asbestos dust would only have been secondary and not as a result of the deceased’s principal employment as a joiner. Further, his exposure was limited to a three to four day period out of a total employment of six months and the asbestos work did not take place on a daily basis. Finally, the work took place outside and was therefore intermittent and of a low level.
The defender’s expert estimated the claimant’s maximum exposure as being between 0.3fibre/ml and 8fibre/ml depending on the job function and the asbestos material used.
It was argued that secondary and intermittent exposure to airborne asbestos fibres was not considered by the best academic research available at the time to be injurious to health. Further, the view that limited exposure to asbestos was not dangerous prevailed until the publication of the Newhouse & Thompson paper entitled
“Mesothelioma of the Pleura and Peritoneum Following Exposure to Asbestos in the London area” in the British Journal of Industrial Medicine, which set out that after small, even environmental, exposure to asbestos dust or fibres could result in the development of mesothelioma. Shortly thereafter, in 1965, Dr Alfred Byrne published an article in the Sunday Times which summarised the work of Newhouse & Thompson, and arguably put the work and the knowledge into the public domain.
The defender argued that it would be unreasonable to expect a company to have worked to standards which were more stringent than the accepted standards of the day, and which had not yet even been formulated as standards by UK medical researchers, health & safety practitioners or government health & safety regulators. In addition, such exposure levels at that time would not have engaged enforcement by Her Majesty’s Factory Inspectorate.
Lord Uist accepted the arguments advanced on behalf of the defender, accepting that the requisite foreseeability to demonstrate liability had not been established on the facts of this case. As the defender’s expert described the exposure as secondary, intermittent and low level, the judge considered it unnecessary that he should make a finding in terms of the degree of exposure in terms of fibres/ml.
Lord Uist reached the conclusion that it was not until after the publication of the Newhouse & Thompson paper in 1965, at the earliest, that employers could have been aware that asbestos exposure at the level to which the deceased was subjected gave rise to a risk of injury. It therefore followed that the defenders did not know and could not reasonably have been expected to have known of the risk arising from the deceased’s exposure to asbestos dust, nor would it have been reasonable and practicable for them to take any steps to protect him from such an unknown risk.
This case serves as a helpful reminder that a date of knowledge argument may be available where exposure to asbestos dust occurs pre-1965, or indeed slightly later, where the level of exposure to asbestos has been low level. Each case, however, requires to be reviewed on its on facts.