December 11, 2018

Scotland: Mesothelioma reasonably foreseeable despite no direct evidence of exposure

John Samuel Thacker & Ors v. North British Steel Group plc [2018] CSOH73

Mrs Thacker died of mesothelioma in 2014. She had been employed in the office at the Atlas Steel Foundry in the mid to late 1960s. She had met her husband, an engineer, whilst working at the foundry. 

The case was taken to proof because the view was taken by the defender that there was insufficient evidence that Mrs Thacker was exposed negligently to asbestos in the course of her office duties. Mrs Thacker's statement was never provided to the defender. Her husband's statement, taken in connection with a claim brought by another former employee at the foundry, had been provided, but of course this did not deal with Mrs Thacker's employment or the manner in which she alleged she was exposed to asbestos. Two months prior to proof, an updated statement from Mr Thacker was provided, giving his version of events in relation to his wife's alleged exposure.

The defender had no factual witnesses of their own, but there was a note in Mrs Thacker's medical records to the effect that, when advised of her diagnosis of mesothelioma, she could not recall any asbestos exposure.

At proof, Mr Thacker gave evidence that within the foundry, asbestos blankets were used to keep steel casings warm. He said that the asbestos blankets were "all burst". The dressing shop, where the blankets were used, was "right dusty". He and other workers knew there was asbestos in the blankets but were given no warnings or advice about this. They never wore masks but some workers tied handkerchiefs round their mouths because of the dust. There was no ventilation. His wife came into the dressing shop on most days of the week.  She delivered memos and there was a "clock-in" device within the premises that she was required to check.

Mrs Thacker's evidence came from a Thompsons paralegal who had taken her statement. Her notes were to the effect that Mrs Thacker had to go into the dressing shop with messages for the boss. She would speak to her father and uncle who also worked there. Asbestos blankets were flung all over the place and were lying on the floor. Her father was a dresser and came home with his boiler suit on.

A factual witness for the pursuer, Mr Hendry, gave evidence about the asbestos blankets and the amount of dust that came off them. He recalled Mrs Thacker coming into the dressing shop and said this would be more than once per week, perhaps three or four times each week.

Robin Howie, Occupational Hygienist, gave evidence for the pursuers. He gave general evidence about foundries being very dusty places to work. In his view Mrs Thacker would likely have been in the factory for several minutes at a time. By the time she was working there, the 1961 Factories Act was in force and a reasonable employer would have known about the harmful nature of asbestos dust. Guidance as to permissible concentrations of asbestos dust was available. A reasonable employer would have been aware of this guidance and would have ensured that it was complied with. The asbestos blankets were likely to be amosite felt or chrysotile webbing. Mr Howie provided likely exposure levels from working with the blankets of between 10 to 30 fibres/ml. Mrs Thacker's exposure would be less. On the basis she was 5 to 10 yards from those working with the asbestos blankets her likely exposure would be between 1 and 3 fibres/ml.

In cross-examination Mr Howie confirmed likely exposure of 10 to 15 minutes on several occasions each week would amount to an average daily exposure of 0.1 fibre/ml per day. As a consequence of this very low figure the defenders chose not to lead their expert witness as the evidence could not be improved upon. 

In submissions, defenders counsel argued that Mr Howie's evidence should be given no weight for three reasons:

  1. He ought not to be treated as a witness to fact as he had no factual experience of the defender's foundry;
  2. He had assumed the role of the pursuer's advocate in a manner which would exclude him from giving independent skilled evidence;
  3. He did not have sufficient facts on which to properly base his opinion evidence.

All three submissions were rejected by the Judge, Lady Wise, who accepted Mr Howie as a skilled witness, entitled to give the opinions he had.

Lady Wise accepted:

  1. That asbestos dust was emitted into the atmosphere of the dressing shop which mixed with the steel dust which arose from the operations of the foundry;
  2. That the use of asbestos blankets gave rise to substantial quantities of asbestos dust;
  3. That, at the point of release, the level of dust was substantial in terms of the second limb of s63(1) of the Factories Act 1961 (and was in any event above the hygiene standard). 

Despite the defender arguing that any exposure would have been at a level which did not create any foreseeable risk of injury, Lady Wise found that dust levels would have exceeded acceptable limits and that Mrs Thacker was exposed to substantial dust. Such exposure was likely to contain asbestos dust above the maximum permissible levels of the time, at least at the point of release. The presence of substantial dust, irrespective of the extent to which it contained asbestos, triggered section 63 of the Factories Act 1961.

By the standards of the day, a cumulative exposure of 0.1f/ml (which Robin Howie accepted) was unlikely to have been reasonably foreseeable as injurious in terms of the common law case. However, Lady Wise held that “the defender knew or ought to have known that any exposure to asbestos was likely to be injurious to Mrs Thacker” after 1965.

Having decided that the level of dust from asbestos blankets was substantial, the defenders were in breach of duty of the 1961 Act. Further, having found as a matter of fact that there was asbestos in the air generally (and thus Mrs Thacker breathed it in as a matter of fact), there was a material increase in risk.

Following McDonald v. National Grid, the finding that Mrs Thacker was exposed to substantial dust of any nature, shifted the burden to the defender to show that practicable measures were taken to avoid injury. The defender was unable to show that any such measures were taken, and breach of duty was established, as was foreseeability.

Kay Gibson & Ors v. Babcock International Ltd [2018] CSOH78

The Gibson case concerned the issue of whether the deceased, a Mrs Sweeney, was exposed negligently to asbestos from her late husband's work clothes. Mrs Sweeney died in 2015, her late husband having passed away in 2008. 

As with the Thacker case, there was no direct evidence of exposure. The pursuers again led the evidence of the paralegal at Thompsons who had taken a statement from the deceased prior to her death. That evidence was that her husband had worked as an engineer fitter with Babcocks from the early 1960s for around 30 years and worked on construction of boilers. Mrs Sweeney knew that her husband came home with asbestos dust on his clothes. She lived with her husband from 1963 and for around 10 years washed her husband's work clothes regularly. She would shake them out at the back door and then wash them in her twin tub. At some point after 1973 Babcock started to wash her husband's overalls and provide him with clean ones.

Thompsons' paralegal also spoke to a former colleague of Mr Sweeney's, Danny Watson, and again gave his evidence at proof, as he had died between giving his statement and proof. Mr Watson confirmed that Mr Sweeney would have been exposed to asbestos from gaskets, rope and lagging. He didn't work directly with Mr Sweeney although he was in the same department.

Another witness, James Brennan, another of Thompsons' clients, who did not know Mr Sweeney, gave evidence about the use of asbestos at the defenders premises. 

Robin Howie again gave evidence for the pursuers. His report was predicated on the statement of Danny Watson, which was not before the Court, albeit Thompsons' paralegal had given his evidence with reference to his preparatory notes from taking that statement. Mr Howie had been given access to Mr Watson's statement.

From the statements of Mr Watson and Mr Brennan, Robin Howie assessed exposure levels for those working in the vicinity of lagging operations of 240 fibres/ml for the preparation of monkey dung, 30 fibres/ml for its application, and 30 to 40 fibres/ml from cutting and handling freeform sections of asbestos. Mr Howie's view was that by 1960 an employer of the size of the defender, should have been aware of the dangers of asbestos exposure at those levels. Precautions should have been taken, including washing work clothes at the work place. That precaution was taken, at a later date.

Mr Howie assumed that the deceased would have shaken out her husband's clothing two or three times each week, for between 5 and 15 seconds at a time. He had assumed that any dust would have contained amosite, as the "lesser evil", when compared to crocidolite. His view was that Mrs Sweeney's exposure from 1965 and then up to the early 1970s increased her risk of contracting mesothelioma 40 fold when compared with the idiopathic risk to her.

In submissions, Counsel for the pursuers stated that the Court had to do its best with the material before it. In his submission the Court could be satisfied on balance that significant quantities of dust containing asbestos were generated during the period of Mr Sweeney's employment with the defender and that as a result of his proximity to the dust, it would have got onto his clothing. Mr Howie's estimates of exposure were of assistance, but they were not really necessary. Even if the only evidence was that asbestos was used in Mr Sweeney's work place to a significant extent, the Court's role was to take a view on whether or not a reasonable employer should have taken precautions. There was no evidence that any precautions had been taken until the early 1970s when the defenders began keeping their employees overalls within the work place. Again with reference to McDonald v. National Grid, a duty under the Factories Acts arose whenever a considerable quantity of dust was given off. It was not necessary to show that the quantity was considerable at the point of inhalation.

For the defender it was submitted that the evidence demonstrated no more than a possibility that Mr Sweeney had worked with or near asbestos, and that he had brought asbestos home with him as a result. The evidence was so poor in quality that the Court was being invited to speculate as to where in the factory he worked; as to the likely level of any exposure to asbestos; how often he worked with or near asbestos; and whether he had been exposed to asbestos after 1965. It was likely that his clothes were dirty simply because he worked in heavy industry. Mr Howie was partisan. He was not a witness to fact, and could not speak to conditions in the defenders factory at the relevant time. Certain levels of asbestos had been accepted as tolerable in the past. The modern, zero tolerance approach to risk was a relatively recent development. Defender's Counsel emphasised the need for Courts to avoid any relaxation of the normal requirements of evidence in proof.

Whilst the Judge, Lady Carmichael, criticised Thompsons for the lateness of the production of their evidence, she nevertheless ultimately found for the pursuers. Robin Howie had only been instructed less than 2 weeks prior to proof. Lady Carmichael regarded that as astonishing. She recognised the difficulties of proof in cases where industrial exposure took place a long time ago. However, Thompsons could have taken more detailed statements from the available witnesses. No attempts were made by Thompsons to seek to recover documentation or evidence from the defender. There should be considerable numbers of actions where there is no real dispute as to the likelihood of asbestos exposure, but Lady Carmichael recognised that not every case falls into that category. She advised that parties should be alert to identify cases which are likely to involve real dispute. She indicated that this required co-operation and candour on the part of those representing insurers. She stated that it would be unfortunate if disproportionate resources were required to be expended to prepare cases where there should be no real dispute.

Lady Carmichael was satisfied that the risk of injury to the deceased was reasonably foreseeable to the defender. She was satisfied that Mr Sweeney would have worked in significant quantities of dust and that it would have got on to his clothing. In order to establish negligence, the pursuers would also have to prove that the defender failed to reduce the risk to the deceased to the greatest extent possible. The presence or absence of evidence about the actual level of exposure was of no particular significance in considering negligence. Lady Carmichael was satisfied that the defender failed to reduce the risk to the deceased. There was no safe known level of exposure. Against that background, the employer's duty was to reduce the risks to the lowest level practicable. No precautions were taken so far as Mr Sweeney was concerned, and no precautions were taken to protect the deceased until the early 1970s. The defenders should have introduced precautions shortly after the end of 1965.

What can we learn?

  • These cases were heard within a period of a few weeks of each other, albeit by separate Judges. Inevitably the Judges must have conferred as to their decisions, which indicate that the standard of proof required in mesothelioma cases is very low. Much of the evidence was presented by the paralegals who took the initial witness statements. Commission evidence was not available. Affidavits were not available. The Courts were prepared to join the dots, albeit there were considerable gaps in the evidence.
  • These decisions indicate that Robin Howie is regarded by the court as a reliable and persuasive witness.
  • The importance of ensuring that all historical factual evidence is retained and indexed is essential. The only way to challenge cases where there is limited factual evidence provided by pursuers is by being in a position to lead contradictory factual evidence. Insurers/defender law firms have, in some cases, been able to access appropriate information from prior claims.
  • Finally, insurers should be cautious to challenge these cases on the basis of patchy evidence. Defenders are rarely provided with witness statements in Scotland. Efforts have been made over the years to encourage early and full disclosure of evidence, but these decisions do not support the insurers' plight in this regard. Insurers have been warned that they should only expend resources on cases which are likely to involve a real dispute as to exposure or liability.