Background

James Watt died of mesothelioma in January 2017.  His relatives raised an action against the deceased's former employers, for whom he worked as a joiner for a four-day period between January and June 1963.  The pursuers asserted that that the deceased's mesothelioma was caused by negligent exposure to asbestos during his period of employment with the defenders.  Quantum was agreed so the question at proof was whether it was reasonably foreseeable to the defenders in 1963 that the level of exposure to asbestos gave rise to risk of asbestos related injury. 

Two expert witnesses, Mr Robin Howie, occupational hygienist, for the pursuers and Professor Roger Willey, occupational health and safety consultant, for the defender, provided their assessments of the deceased's cumulative exposure to asbestos.  Howie accepted that the exposure was "not heavy" and was "of short duration".   Willey described the deceased's exposure as "secondary, intermittent and low level."  In considering the authorities on foreseeability, the Lord Ordinary followed the reasoning of Swift J in Abraham v G Ireson & Son (Properties) Ltd and another [2009] EWHC 1958 (QB) which was a case where the level of exposure to asbestos had been modest and infrequent.  Swift J made findings based on the evidence led in Abraham.  With regards to the state of knowledge at the relevant time, it was found that the defenders could have been aware that the levels of exposure gave rise to risk of injury.  On that basis, the defender's failure to take precautions against such a risk of injury could not be negligent.  Given that the levels of exposure in the deceased's case were not higher than the exposure in Abraham, the Lord Ordinary found that in 1963, the defenders could not have been expected to have appreciated that the low level of exposure during his employment with the defenders involved a risk of asbestos-related injury.  The pursuers appealed.

Grounds of appeal

The pursuers appealed on the grounds that the Lord Ordinary had erred in law in his treatment of Abraham.  The pursuers submitted that the Lord Ordinary had simply adopted the evidence and reasoning in Abraham.  The defenders refuted this.

The appeal was refused.  The Inner House were satisfied that the Lord Ordinary had reached his decision based on the evidence led before him and had not in any way adopted the factual determinations in Abraham.  Furthermore, the Inner House stated that the Lord Ordinary had correctly endorsed the approach in Abraham of assessing the evidence relating to the degree of exposure and the knowledge of any risks arising from them at the time of exposure.  The Lord Ordinary had concluded that "it was not until after the publication of the Newhouse and Thomson paper in 1965 at the earliest that employers could have been aware that asbestos exposure at the level to which Mr Watt was subjected gave rise to the risk of injury".

Comment

This decision provides a useful discussion of how the court will approach the assessment of reasonable foreseeability of risk arising from exposure in asbestos cases.  It is dependent on the evidence in each individual case.  The defender's level of knowledge at the relevant date was determinative in this case and highlights the difficulties pursuers will face in making claims when the exposure was pre-1965 and at a low level.