Elle Duckenfield and Michael Rawlinson QC considers the Scottish judgment of Lord Uist in the case of Watt v Lend Lease Construction (Europe) Ltd [2022] CSOH 23.
On 3 March 2022 the Outer House of the Court of Session gave judgment in this fatal Scottish mesothelioma case. The judgment can be read here.
Background
The late Mr Watt was employed by the defenders, formerly known as Bovis Construction Limited (“Bovis”), as a joiner between January and June 1963.
Mr Watt died from mesothelioma in January 2017. Mr Watt’s widow, Nicola Watt, brought an action against his former employer for negligence and breach of Regulation 20 of the Construction (General Provisions) Regulations 1961 (“the 1961 Regulations”). Regulation 20 (since repealed) held that:
“where in connection with any grinding, cleaning, spraying or manipulation of any material, there is given off any dust or fume of such a character and to such extent as to be likely to be injurious to the health of persons employed all reasonably practicable measures shall be taken either by securing adequate ventilation or by the provision and use of suitable respirators or otherwise to prevent inhalation of such dust or fume.”
Prior to his death, Mr Watt provided a statement describing significant exposure to asbestos dust during his period of employment with Bovis. Bovis disputed this and argued that Mr Watt had experienced secondary, intermittent and low-level exposure for 3 or 4 days only. Damages were agreed last minute, subject to the finding on liability.
The main issue in this case was foreseeability; whether Bovis were or ought to have been aware that Mr Watt was exposed to asbestos levels giving rise to a risk of asbestos-related injury whilst in their employment.
To establish the date of knowledge of the dangers of asbestos as 1960-63, the pursuer relied upon Wagner’s 1961 paper, the mid-1950’s Annual Report of the Chief Inspectors of Factories and the HM Factory Inspectorate guidance on working with asbestos. The Defenders greatly relied on Swift J’s judgment in Abraham v G Ireson and Sons (Properties) Ltd [2009] EWHC 1958 (QB), in which Her Ladyship held that the earliest date for which employers can be fixed with foreseeable knowledge is the 1965 Newhouse and Thomson paper.
The Judgment
Lord Uist commented that it was not necessary for him to reach a decision on the degree of Mr Watt’s exposure to asbestos in terms of fibres/ml. The judge did however accept the broad brush description of Mr Watt’s asbestos exposure provided by Professor Willey, the defenders’ occupational safety and health consultant, as “secondary, intermittent and low level over a period of 3 or 4 days” [16].
Lord Uist held that Wagner’s 1961 paper was not sufficient to prove that Bovis ought to have reasonably foreseen a risk of injury to Mr Watt. Adopting the approach of Swift J in Abraham, Lord Uist upheld the 1965 Newhouse and Tomson paper as marking the point at which employers could, or ought to, have knowledge that lower-level exposure to asbestos gave rise to the risk of injury.
Therefore, Lord Uist found that it was not reasonably foreseeable for Bovis to have known that Mr Watt was exposed to the risk of asbestos-related injury. Their failure to take steps to protect Mr Watt against exposure was not negligent. For the purposes of the 1961 Regulations, it followed that Bovis could not have been aware that the asbestos exposure was “likely to be injurious” to Mr Watt. As such, it was not reasonably practicable for Bovis to take steps to protect Mr Watt from it.
Comment
This is a reminder of the significance of the level of exposure when determining the date of knowledge for breach. The key document that continues to be heavily relied upon by judges is the Newhouse and Tomson’s 1965 paper. It appears that claimants will continue to encounter an uphill challenge in establishing knowledge in low-level exposure cases prior to 1965. There is no doubting the importance of this document: it was described by HHJ Hickinbottom (as he then was) in Jones v Metal Box as a ‘watershed’. It has become a trope of mesothelioma litigation that almost every employer from that date onwards is stuck with the constructive knowledge that there was no safe level of exposure to asbestos and that even trivial exposures could cause that disease. What perhaps is less well known is that the paper published in 1965 was given a prior airing at the 1964 WHO Symposium on the “Biological Effects of Asbestos’ held in New York. Morris Greenberg has written of the Symposium
“Contributors to the report, with its 705 pages of text ,constituted a contemporary International Who’s Who of academics, industry experts, and civil servants involved in the fields of research and control of asbestos and its effects. Its contributions varied qualitatively and quantitatively, but overall it constituted an excellent compendium of the state of knowledge of the physical and health aspects of exposure to dusts containing asbestos”[1]
It must raise the question (since the UK was present via members of its civil service) whether UK bodies under public ownership at the time of 1964 can be taken to have acquired their ‘watershed’ constructive knowledge qua employers in 1964 rather 1965. Such an argument against a public body has not yet been run at trial to the best of our knowledge.
Additionally the case raises issues on causation of how to establish that exposure represents a material increase in risk and whether a detailed quantitative finding is necessary. Lord Uist’s comment that a detailed quantitative finding on exposure was not required is an interesting point. On its face this is inconsistent with Geoffrey Tattersall QC’s approach in Bannister v Freemans [2020] EWHC 1256 (QB) where the latter concluded that he should “make findings as to the deceased’s actual level of exposure to asbestos” [157]. Despite this specific comment, Tattersall QC went on to accept that this quantitative finding may be imprecise. This leads to the question of whether an imprecise quantitative finding is adequate for a detailed quantitative finding or whether it is simply a qualitative finding masquerading as one. On balance, it would seem relatively clear that Lord Uist’s approach more closely reflects the orthodox and authoritative guidance provided by Maurice Kay LJ in Cox v Rolls Royce of India @ [21]; by Sedley LJ in Willmore (CA) @ [7-12]; by Lord Phillips in Sienkiewicz(@ [108] and (by implication) by Underhill LJ in Bussey @ [62] namely that only qualitative findings as to dose should be made. With respect, Mr Tattersall QC’s approach now appears to be the outlier.
[1] Biological Effects of Asbestos: New York Academy of Sciences 1964 (AMERICAN JOURNAL OF INDUSTRIAL MEDICINE 43:543–552 (2003)
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