The judgment by the Outer House of the Court of Session in Nicola Steven Watt or Murray and Others v Lend Lease Construction (Europe) Limited  CSOH 23 provides further clarity on foreseeability or "date of knowledge" in Scottish personal injury cases relating to primary exposure to asbestos.
Mr Watt, a former joiner, died of mesothelioma in 2017. The action was brought by his surviving relatives on the basis that his condition had been caused by his negligent exposure to asbestos by the defender during his employment with them. Medical evidence indicated that, on the balance of probabilities, Mr Watt's death had been caused by his occupational exposure to asbestos.
The case against the defender was based on a breach of Regulation 20 of the Construction (General Provisions) Regulations 1961. Regulation 20 created a duty on an employer to provide adequate ventilation and a respirator or alternative suitable protection, when dust or fumes were given off in the grinding, cleaning spraying or manipulation of material that might be injurious to health. It was alleged Mr Watt was exposed to asbestos while cutting asbestos sheets to line an area of about 20 by 25 feet of a car park ceiling in Argyle Street, Glasgow in 1963.
It was uncontentious that Mr Watt was exposed to asbestos for 3 or 4 days during his 6 months employment with the defender. The court was satisfied the defender took no steps to prevent injury arising out of Mr Watt's exposure to asbestos. The issue to be determined was whether the defender was, or ought to have been, aware when Mr Watt was employed by them, that asbestos exposure at the levels to which he was subjected gave rise to a risk of injury.
The question of whether liability for negligence had been established at common law or by breach of the 1961 Regulations centred on the question of foreseeability. To succeed, the pursuers required to establish that, in 1963, the defender ought to have reasonably foreseen that the exposure to asbestos to which Mr Watt was subjected gave rise to a known risk of asbestos-related injury.
It was noted by the court that the medical publications referred to were those more often seen in cases involving instances of secondary exposure (e.g. where a child was exposed to asbestos from their father's work clothes).
The pursuers' occupational hygienist gave evidence that in 1960 there was a known link between exposure to small amounts of asbestos and the development of mesothelioma in light of the paper published by Wagner in the British Journal of Industrial Medicine at that time. The court, however, did not consider the Wagner paper fixed the defender with knowledge of the foreseeability of an asbestos related injury from low level exposure, given it was a research paper in a specialist medical publication. The defender's expert's view was aligned to this. He said that it was unreasonable to expect a company not directly engaged in asbestos related manufacturing to have had knowledge of the risks at the time. It was important to remember, Mr Watt was not an asbestos worker, and his exposure was intermittent and low level. The defender relied on the publication by Newhouse and Thompson in 1965. This publication was summarised in an article by Dr Alfred Byrne in the Sunday Times on 31 October 1965. That date is often referred to as the 'watershed' moment for the widespread understanding that there was no safe level of exposure to asbestos.
The 'watershed' date has already been endorsed in Scotland by Lady Carmichael in Gibson v Babcock International Limited  CSOH 78, however the case was one of 'secondary exposure', specifically exposure to asbestos by the wife of an asbestos worker because he brought dust home on his clothing.
The defender's Counsel's also relied on the English case Abraham v G Ireson & Son (Properties) Ltd and another  EWHC 1958 (QB). In that case the claimant was exposed to asbestos in his employment before 1965 and the court found exposure with the first defender to be light; and the second, modest and infrequent. The case failed against both defenders when the foreseeability of injury was considered. Ultimately, the court in this case was satisfied that the defender would not have known that exposure to asbestos dust was 'likely to be injurious' to Mr Watt. The defender would not therefore have been expected to have taken any steps to protect Mr Watt from the risk and its failure to do so could not be negligent. The pursuers' case failed.
What does this mean for cases of low-level asbestos exposure in the future?
The impact of the case is to extend the "watershed" date of 31 October 1965 beyond secondary exposure cases in some instances - at least in Scotland. The crucial question will always be "What would the particular defender be expected to know at the relevant time?".