Asbestos: Mesothelioma - Breach of Duty and Apportionment

This case provides an indication of the Court’s approach to historic asbestos exposure evidence in living mesothelioma claims. The Court was asked to determine whether the Pursuer had been exposed to asbestos during employment with either Defender and, if so, how responsibility should be apportioned between them.

The judgment confirms that imperfect recollection, inconsistency in detail, or the passage of many years will not necessarily defeat a pursuer’s claim where the core account remains plausible and is supported by the wider evidence. It also highlights that apportionment will not always be determined by a simple time-on-risk calculation; where evidence permits an assessment of relative exposure intensity, the Court may prefer a dose-based approach

The Facts 

The case concerned a living mesothelioma claim in which the proof was restricted to liability, specifically whether the Pursuer had been exposed to asbestos during employment with either Defender and, if so, how responsibility should be apportioned between them. 

The Pursuer alleged that whilst working for the First Defender he was required to remove corrugated asbestos roof panels. With the Second Defender the Pursuer said that he was required to clear asbestos dust and debris following the removal of wall panels at various domestic premises. The Court heard oral evidence from the Pursuer and other lay witnesses. The Second Defender also led lay witness evidence. Expert engineering evidence was presented.

Approach to Evidence 

The Pursuer’s evidence was challenged on the basis of being contradictory and inconsistent as to the nature, duration and extent of the exposure. The Court noted that just because the exposure had been many years ago that did not render the Pursuer’s evidence unreliable. The Court had benefited from hearing the Pursuer’s oral evidence and the Pursuer had been cross examined by defence counsel.  

The Court was not necessarily looking for the exact account of exposure that took place decades ago but whether, taken as a whole, the Pursuer gave a plausible account on the whole of the source of the exposure. 

“…for the purposes of this litigation what mattered was the nature of the work carried  out and for whom he carried it out.” 

The Court was mindful of the decision in Gestmin and the warning regarding witness recollections.  The Court said that there was 

“…no doubt that the pursuer would struggle to recall every last piece of asbestos he removed to a skip, or every last job in which he and his colleagues had been engaged.”  

However, the Court’s approach, referring to Gestmin to the value of oral evidence, tested in cross examination was:

“to gauge the personality, motivations, and working practices of a witness, rather than testimony of whatthe witness recalls of particular conversations or events”. 

The question is whether, looking at the evidence as a whole, the pursuer gives a plausible and reliable account of the nature of the work carried out, the employer for whom it was carried out, and the source of the alleged asbestos exposure.

The Court noted the Second Defender’s evidence but did not consider that much weight should be applied to the same as the witness was office based and did not work on the sites where the Pursuer was present. 

With the above in mind and in light of the engineering evidence confirming the likelihood that the material encountered by the Pursuer with both Defenders the Court found that the Pursuer was exposed to asbestos with both Defenders

Apportionment 

The Court then moved on to consider apportionment and declined to adopt a simple time-on-risk apportionment. Instead, because there was evidence available about relative exposure levels during the two periods of employment, it adopted a dose-based approach. 

In many disease claims, apportionment is approached by reference to time on risk, particularly where there is little reliable evidence about the intensity of exposure. However, this case demonstrates that where the Court has evidence on which it can assess relative exposure intensity, a simple duration-based calculation may be inappropriate.

Conclusion

The case confirms that the Court will not necessarily reject historic exposure evidence simply because memories are imperfect or because accounts vary in detail over time. What matters is whether the core account is plausible, coherent and supported by the wider evidence, including expert evidence where available.

For defenders, the decision underlines the importance of obtaining detailed and focused evidence on the nature, intensity and duration of alleged exposure. It is not enough simply to attack a pursuer’s recollection in the abstract. Where there is expert evidence, supporting the likelihood of asbestos exposure, and where contrary lay evidence is not specific, the Court may still be prepared to accept the pursuer’s account even if imperfect.

This case reinforces that the Court will take a realistic approach to historic recollection, particularly where the work took place decades ago, but will still subject the evidence to careful scrutiny. It also demonstrates that apportionment between defenders may turn not simply on the length of each employment but on the relative dose of asbestos exposure attributable to each period.