Inner House refuses appeal absolving former employer of man’s asbestos-related death

About this case:

• Citation:
  [2023] CSIH 19
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lady Dorrian

Nicola Watt and other pursuers averred that Lend Lease Construction Ltd, which previously employed the late James Watt between January and June 1963, was in breach of the Construction (General Provisions) Regulations 1961. Quantum having been agreed between the parties, the only matter for the Lord Ordinary to determine was the issue of liability.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, together with Lord Malcolm and Lady Wise. Brodie KC and Shields, solicitor advocate, appeared for the pursuers and reclaimers and Ellis KC and MacGregor, advocate, for the defenders.

Permissible concentrations

The deceased was exposed to asbestos during a three to four day period when he worked for the defenders between January and June 1963. He had previously been exposed to asbestos during his employment with his own company, James Watt and Son, between 1957 and 1960. It was a matter of agreement that the deceased developed pleural plaque disease as a result of occupational exposure to asbestos, and that he developed, and died of, mesothelioma.

Expert evidence was led from two witnesses, Mr Howie for the pursuers and Professor Willey for the defenders. On the basis of a statement from Mr Watt that was provided to the court, Mr Howie had accepted that the exposure was not heavy and was of short duration. Professor Willey’s description of the exposure as secondary, intermittent and low level was not challenged in cross-examination.

Preferring the expert evidence led on behalf of the defenders, the Lord Ordinary held that in 1963 Mr Watt’s employers could not be expected to have appreciated that the low level of exposure during those few days involved a risk of asbestos-related injury. He noted that the exposure was similar to that in the English case of Abraham v G Ireson & Son Ltd (2009), in which Swift J came to a similar conclusion regarding knowledge.

It was submitted for the pursuers that the Lord Ordinary had erred in his interpretation of the case authority from England, and in his assessment of the expert witnesses. By simply adopting the reasoning in Abraham, he had fallen into the same error as Swift J in treating evidence regarding maximum permissible asbestos concentrations referred to in a 1960 health and safety booklet as supporting a conclusion that there was no risk.

Basis of evidence

Lady Dorrian, delivering the opinion of the court, began by observing: “We are satisfied that the Lord Ordinary did not fall into the errors attributed to him. [In] his opinion he summarised in some detail the evidence given by the expert witnesses. He correctly notes that ‘In order to succeed the pursuers require to prove that it was or ought to have been reasonably foreseeable to the defenders at the material time that the exposure to asbestos to which Mr Watt was subjected gave rise to the risk of asbestos-related injury’.”

He continued: “It is clear that he based this on the unchallenged evidence led before him from Prof Willey and not to any extent on consideration of the evidence led in Abraham. He did not in any way adopt the factual determinations in Abraham, and referred to them only to set out the factual basis which led Swift J to her conclusions on negligence and breach of statutory duty.”

Addressing Abraham in further detail, the Lord Justice Clerk added: “It was accepted that the Lord Ordinary had been entitled to make the finding that he did in relation to the nature of the deceased’s exposure. It is difficult to square that concession with the argument that he erred in equiparating the exposure with that which obtained in Abraham, but in any event he did no such thing. He clearly made the assessment on the basis of the evidence led. The same applies to the Lord Ordinary’s ultimate conclusion on knowledge.”

She concluded: “He plainly decided the case according to the evidence before him, and in particular by reference to his preference for that of Professor Willey on the key issues. We see no proper basis to fault his decision in this regard. Whether Swift J made any error of fact in Abraham is beside the point: the Lord Ordinary not having fallen into the trap of adopting the factual basis of that case cannot be said to have adopted any error in this case.”

The reclaiming motion was therefore refused.