The decision can be found here. The claimants were the surviving family members of Adrienne Sweeney. She succumbed to mesothelioma. She had been exposed when washing her husband's work clothes whilst he was employed by a Babcock company between 1962 and 1971 which made boilers insulated with asbestos at the premises where he worked.
The case was concerned mainly with the question of breach of duty. First of all, Lady Carmichael held that from 31 October 1965 major industrial concerns like the defenders ought to have reasonably foreseen there was a risk of injury to persons like Mrs Sweeney through exposure to asbestos dust which their employees transported home on their clothing. The basis for this was a medical paper by Newhouse and Thompson from 1965 which highlighted the dangers faced by those sharing a household with persons who worked with asbestos and noted that a very brief exposure to asbestos can prove lethal.
Her Ladyship then went on to consider whether she was required to make a finding as to the precise level of exposure from 31 October 1965 until 1971. She concluded she did not have to do so for either the deceased or her husband. Relying on the Newhouse and Thompson paper's finding that a very brief exposure to asbestos can prove lethal, she held instead that in order to succeed the claimants would first need to prove that the deceased's husband was exposed to sufficient asbestos at work that the defenders must have known it would have caused him to take fibres home on his clothes. In the event this hurdle was overcome, Lady Carmichael held the claimants would need to show that the defenders failed to reduce the risk to the deceased to the greatest extent possible. The claimants overcame both hurdles. Her Ladyship accepted that a precaution of washing the deceased's husbands work clothes at his workplace which was introduced after 1971 could have been taken earlier.
Comparatively little was said about causation. Lady Carmichael observed the claimants would need to prove that the exposure materially increased the risk of the deceased developing mesothelioma with "materially" meaning more than minimal. She also observed that an estimate of exposure is of some use in establishing whether there has been such a material increase in risk. However, her Ladyship was satisfied that the deceased's weekly washing of her husband's dusty work clothes materially increased this risk. In the event there is an appeal against this decision, we suspect that causation is what the defenders will focus on.
The case also illustrates the problems inherent in dealing with cases where the negligence is said to have taken place decades ago. Here the deceased's husband passed away many years before she was diagnosed with mesothelioma and one of his colleagues who had spoken with the claimant's agent also passed away before the notes of this conversation could be set out in a statement and signed. The deceased also died before her evidence could be taken on commission. The paralegal who noted the statement from her, which the latter signed, required to give evidence about this. Lady Carmichael observed that in cases like this involving relatively elderly witnesses there might be some merit in the early preparation of detailed affidavits if not early consideration of taking evidence on commission.
At Morton Fraser, we regularly advise clients on asbestos litigation. In recent years, we have seen an increase in the number of claims which arise in similar situations to that of Adrienne Sweeney - where the exposure to asbestos occurs not during someone's employment, but instead it occurs when they are cleaning clothes or premises of others who worked with asbestos. This case provides some useful guidance on when these sorts of claims are likely to be successful.