The family of a man who died of mesothelioma and claimed his condition was caused by exposure to asbestos have lost an appeal to the Inner House of the Court of Session in Edinburgh against a ruling that his former employer was not responsible for his condition.
Nicola Watt and other prosecutors alleged that Lend Lease Construction Ltd, which previously employed the late James Watt between January and June 1963, breached the Construction (General Provisions) Regulations 1961. Quantum was agreed between the parties, the only matter for the Lord Ordinary to determine was liability.
The appeal was heard by Lord Justice Clerk, Lady Dorrian, along with Lord Malcolm and Lady Wise, our sister publication Scottish Legal News reports.
Permissible concentrations
The deceased was exposed to asbestos for three to four days while working for defense attorneys between January and June 1963. He had previously been exposed to asbestos while working for his own company, James Watt and Son, between 1957 and 1960. It was agreed that the deceased developed pleural plaque disease as a result of occupational exposure to asbestos and that he contracted and died from mesothelioma.
Expert opinions were conducted by two witnesses, Mr Howie for the prosecutors and Professor Willey for the defenders. On the basis of testimony given by Mr Watt to the court, Mr Howie had accepted that the exposure was non-serious and short-lived. Professor Willey’s description of the exposure as secondary, intermittent and low level was not challenged under cross-examination.
Favoring expert evidence on behalf of defense counsel, the Lord Ordinary ruled that Mr Watt’s employers in 1963 could not have expected that the low level of exposure during those few days posed a risk of asbestos-related injuries. He noted that the discovery was similar to that in the English case Abraham v G. Ireson & Son Ltd (2009), in which Swift J. came to a similar conclusion regarding knowledge.
Prosecutors were told that the Lord Ordinary had erred in his interpretation of case authority from England and in his assessment of the experts. By simply adopting Abraham’s reasoning, he had fallen into the same error as Swift J when he treated evidence for maximum allowable asbestos concentrations referred to in a 1960 health and safety brochure as if he were the support the conclusion that there was no risk.
evidentiary basis
Lady Dorrian, who delivered the judgment of the court, first observed: “We are satisfied that the Lord Ordinary did not fall into the errors attributed to him. [In] In his report, he summarized the statements of the experts in detail. He correctly states: “In order to succeed, prosecutors must demonstrate that it was or should have been reasonably foreseeable by defense counsel at the material time that the exposure to asbestos to which Mr Watt was exposed would result in the risk of an asbestos-related risk injuries’.”
He continued: “It is clear that he based this on the undisputed evidence presented to him by Prof. Willey and not in any way considering the evidence presented in Abraham. He in no way adopted the factual findings in Abraham, merely citing them to present the factual basis that led Swift J to its conclusions of negligence and breach of statutory duty.”
Addressing Abraham in more detail, the Lord Justice Clerk added: “It was accepted that the Lord Ordinary was entitled to make the determination which he had made as to the nature of the exposure of the deceased. It is difficult to reconcile this admission with the argument that he made a mistake in equating the disclosure with that obtained with Abraham, but in any case he did not do any such thing. He clearly made the assessment on the basis of the evidence presented. The same is true of the Lord Ordinary’s final conclusion on the subject of knowledge.”
She concluded: “He has clearly ruled the case on the evidence in his possession, particularly with reference to his preference for that of Professor Willey on the key issues. We see no reasonable basis to criticize his decision in this regard. Whether Swift J. made a factual error in Abraham is immaterial: the Lord Ordinary, who did not fall into the trap of accepting the factual basis of this case, cannot be said to have made an error in this case.”
The request for reimbursement was therefore rejected.
