Scotland: A clear judgment considering the foreseeability of asbestos exposure in 1963

The Inner House of the Court of Session have refused an appeal against a successfully defended proof at first instance.

Background

The late Mr Watt was said to have been exposed to asbestos in early 1963 when working as a joiner for a construction company and had developed mesothelioma. He was said to have been exposed to asbestos for a 3-to-4-day period between January and June 1963 when cutting 15 to 20 asbestos sheets into tiles using a handsaw outdoors, producing “a lot of dust”. The tiles were bevelled then fitted, producing more dust. 

First Instance

At the first instance proof in the Court of Session before Lord Uist, the pursuers’ expert accepted the exposure was not heavy and was of short duration. The defenders’ expert’s description of the exposure being secondary, intermittent and of short duration was not challenged. 

The Appeal

The pursuers lodged numerous grounds of appeal seeking to suggest that the judge at first instance had erred in his decision and therefore the appeal court could reach a new decision. It appeared to be argued that the first instance judge had erred in law when considering the case of Abraham by adopting both the evidence and reasoning in that case to the present case. In addition, the case of Abraham was said to have been incorrectly decided. 

Decision

The appeal court took the view that the judge had appropriately considered the evidence led and applied the law to the evidence led correctly.

He was entirely correct to make the factual determination that the exposure was secondary, intermittent and low level given the unchallenged evidence led and did not seek to import the factual evidence in Abraham but rather simply noted the factual basis of that case.

The appeal court thought that the judge at first instance was correct to “assess the evidence relating to the degree of exposure and the knowledge of any risks arising therefrom at the time of the exposure.”

In addition, the appeal court found that the judge had correctly concluded that in relation to knowledge “it was not until after the publication of the Newhouse and Thomson paper in 1965 at the earliest that employers could have been aware that asbestos exposure at the level to which Mr Watt was subjected gave rise to the risk of injury”.

No fault was found with the decision at first instance and the appeal was therefore refused.

Impact

It is significant that we now have a Scottish appeal court judgment regarding pre-1965 low, intermittent and secondary exposure to asbestos, particularly in relation to the lack of foreseeability of an employer to the risks arising in 1963. The defenders could not have been aware that the exposure was “likely to be injurious” and it was not reasonably practicable for them to take steps to protect against it. 

This case forthrightly illustrates that the court in Scotland should focus on the evidence led, not what a party might have hoped to have been led. It also makes clear that the judge at first instance had carefully considered the evidence led regarding the categorisation of the exposure and noted the lack of contradiction to that evidence. 

The attempt to argue that the judge at first instance had erred in several ways was robustly rejected.  Whether the pursuers will seek an appeal to the Supreme Court remains to be seen but given the judgment that appears to be unlikely.

Andrew Gilmour, partner in Clyde & Co’s Glasgow office, acted for the defenders on the instruction of BAI Claims Services .  

The Inner House judgment

The First Instance decision