Scottish mesothelioma claimants must have sufficient evidence of asbestos exposure

The Court of Session in Scotland issued a salient reminder to mesothelioma claimants last week that it must have sufficient evidence of asbestos exposure in order to determine whether there was a breach of duty.In Prescott v The University of St Andrews, Lord Pentland held that the claimant had failed to prove that he was exposed to dangerous levels of asbestos dust during renovation of the Old Library at the University in the late 1970s.

The claimant led evidence from a former colleague and an engineer witness in support of his claim.Lord Pentland expressed reservations on both the reliability of the claimant and the former colleague's recollections.The claimant's evidence was described variously as indefinite, varying, uncertain and vague.In terms of the engineering evidence, the witness was of no assistance to the court in that she could only give evidence on the maximum potential exposure. Lord Pentland stated that an occupational hygienist or suitably qualified engineer would normally give evidence on the critical issue of the actual level of exposure.

The Court adopted the analysis of Lord Justice Aikens in the Court of Appeal in Williams v University of Birmingham and confirmed that the following evidence is required to establish breach of duty:

1. the actual level of asbestos fibres to which the claimant was exposed;
2. what knowledge the defenders should have had at the time about the risks posed by that level of exposure;
3. whether, with that knowledge, it should have been reasonably foreseeable to the defenders that such an exposure level was likely to cause asbestos-related injury;
4. what steps the defenders should have taken in the light of the claimant's exposure to asbestos;and
5. whether the defenders negligently failed to take those steps.

Lord Pentland held that the claimant's evidence did not allow him to move beyond the first point above.The decision provides useful guidance for insurers and businesses in determining the sufficiency of evidence in asbestos claims.

For more information please get in touch with your usual Brodies contact, or one of the individuals listed below.