Scotland: Reasonable foreseeability in low level asbestos claims considered

The recent judgment in Murray v Lend Lease Construction is an important decision for defenders and insurers in low level exposure asbestos claims.

Murray v Lend Lease Construction (Europe) Limited [2022] CSOH 33

Handing down judgment in the Court of Session, Lord Uist noted that "it all comes down to foreseeability" in determining whether liability for negligence at common law or breach of Regulation 20 of the 1961 Regulations has been established.

The Court accepted that at the time of employment (1963) the defender did not know, and could not have reasonably known, that exposure to asbestos dust at the level sustained by the deceased was likely to be injurious to their employees' health. Given they did not know of any risk arising, it was not reasonably practicable for them to take any steps to protect employees from that risk.

Background

The action was raised in the Court of Session by the deceased's family. The deceased had died of mesothelioma in 2017 after his own claim had been settled on a compromise basis. The family had presumably assumed that their claims would also be met, but the defender challenged the claims and took the family to proof.

The deceased had been employed by the defender as a joiner between January and June 1963. It was alleged by the pursuers that during his employment he worked on the construction of shop premises including a basement car park in Argyle Street, Glasgow and that he was exposed to asbestos dust whilst cutting and fitting asbestos sheets to an area of the car park ceiling. 

The pursuers argued that the deceased's mesothelioma was caused by his negligent exposure to asbestos by the defender at common law and under Regulation 20 of the Construction (General Provisions) Regulations 1961 (the Regulation).

The Regulation provides that where in connection with any grinding, cleaning, spraying or manipulation of any material there is given off any dust or fume of such character and to such an extent as to be likely to be injurious to the health of persons employed all reasonably practical measures shall be taken either by securing adequate ventilation or by the provision or use of suitable respirators or otherwise to prevent the inhalation of such dust or fume. The Regulation came into force on 1 March 1962.

It was argued for the defender that any exposure to asbestos during the deceased's employment would have been secondary, intermittent and of a low level for 3 or 4 days only.  Any exposure to asbestos would have occurred outdoors and would have fallen significantly below the Helsinki criteria.  At the relevant time it would not have been reasonably foreseeable to the defender that the deceased would be exposed to the risk of developing an asbestos-related condition. Had such a level of exposure occurred in 1971 the Factory Inspectorate would have taken no enforcement action.

Decision

The Court agreed with the defender. It was not until after publication of the Newhouse and Thomson paper in 1965 at the earliest that the defender could have been aware that asbestos exposure at the levels sustained by the deceased gave risk to a risk of injury.

It followed that the defender could not have been aware that the deceased's exposure was "likely to be injurious", they could not reasonably be expected to have known of the risk of injury and therefore it was not reasonably practicable for them to take any steps to protect him from it.

The defender was therefore not in breach of their common law or statutory duties.

Impact

It is unusual for an action to be raised in a family claim for mesothelioma if the live claim has been settled. Normally, parties are prepared to settle these claims on production of the relevant evidence, given it would be assumed that breach had been dealt with in the "live" claim.

Here, however, whereas the defender's occupational hygienist evidence had only been used to negotiate a compromise settlement in the live claim, it was founded on in full defence of the family claims.

The defence, however, was well founded. The reality of the situation was that the alleged exposure was very light, over a few days only, and in 1963 when knowledge of the risks of such exposure simply were not known and could not have been foreseen.

The full judgment can be found here.