The Significance of 1965 When Determining Foreseeability of Asbestos-Related Injury in Mesothelioma Claims: Watt v Lend Lease Construction (Europe) Ltd [2022] CSOH 23

Earlier this month, Philip Turton, of Ropewalk Chambers, reported on the Scottish mesothelioma case of Watt v Lend Lease Construction (Europe) Ltd [2022] CSOH 23, in which pre-1965 exposure to asbestos was alleged.[i]

The allegation was made on behalf of Mr. Watt, who died of mesothelioma in 2017, aged 75.

Mr. Watt was employed by the defenders (formerly Bovis Construction Limited) as a joiner, from January 1963 to June 1963.

His written statement, produced antemortem, described a three-to-four-day period of work building a car park for commercial premises, during which he was ‘constantly’ exposed to asbestos dust. 

Injurious dust was supposedly generated through work with 5/8-inch-thick asbestos ceiling tiles constructed from 15-20 asbestos sheets, measuring 8ft x 2ft. The task of fitting these tiles with a colleague (the deceased could not recall his name) involved cutting each asbestos sheet into four square panels, measuring 2ft x 2ft, and then fixing them to a timber-framed ceiling.

Cutting with handsaws ‘caused a lot of dust’ and because work was undertaken outside, dust and debris was ‘blowing about the place’. Similarly, planing the edges of cut sheets with a hand-held device and putting a small bevel into both sides of each tile ‘caused further dust’. What is more, the power of the electric drill used to bore holes through the sheets for the fixing screws ‘caused a lot of dust to be blown about’ and because the fixing work was done above his head, the dust would ‘fall down’ his face. ‘Substantial quantities’ of dust propelled into the atmosphere would also settle on surfaces, only to be further disturbed, e.g. when sweeping up the floor, or when removing clothes.

No mask was provided by the defenders, nor were any asbestos warnings given.

As such, Mr. Watt’s widow and other surviving relatives advanced a claim against his former employer, with it having conceded taking no steps to measure or protect against asbestos exposure.

At trial, Lord Uist recognised that the principal issue in question for determining liability in negligence either at common law, or under Regulation 20 of the Construction (General Provisions) Regulations 1961,[ii] was that of ‘foreseeability’ of harm. More specifically, whether it ‘was or ought to have been reasonably foreseeable to the defenders at the material time that the exposure to asbestos to which Mr Watt was subjected gave rise to the risk of asbestos-related injury’.

It was necessary to consider the nature of the deceased’s exposure and Occupational Hygienist, Mr. Robin Howie (for the pursuer), opined that his exposure had not been heavy or prolonged, but nor had it been intermittent. Asbestos insulation board (AIB) used would have contained ‘about 15-25% amosite or a mixture of amosite and chrysotile’. In terms of quantities, mean exposure to amosite (brown) asbestos was calculated at 25-35 fibres/ml, with cumulative exposure at 0.3-0.6 fibres/ml.years.

By contrast, Occupational Health and Safety Consultant with special expertise in asbestos, Professor Roger Willey (for the defenders), interpreted the deceased’s exposure as secondary to his employment and regarded it as intermittent. The range given for exposure levels was ‘no higher than 0.3 fibre/ml to 8 fibre/ml’. In essence, this was low level exposure that fell ‘significantly below’ the Helsinki criteria and the published research work of Parkes.

Although there was some discernible difference in opinion between the experts, Lord Uist reduced all disparity into insignificance by finding that the defenders ‘would not at the material time have been aware of the level of exposure in terms of f/ml’. All that was relevant from the deceased’s statement was that his exposure to asbestos was light and occurred across a very narrow time frame.

Moving on to delve into industrial knowledge and the defenders’ ‘foreseeability’ of harm, Mr. Howie believed that by the mid-1950s, a ‘reasonable employer’ would have been fully aware from the Annual Reports of the Chief Inspectors of Factories that uncontrolled exposures to asbestos brought with it a risk of asbestosis, asbestos with tuberculosis and asbestosis with lung cancer. He went on to posit, under cross-examination, that the defenders should have been aware of the link between exposure to small amounts of asbestos and mesothelioma, since this had been examined in the British Journal of Industrial Medicine, by Wagner et al (1960).[iii] The scientific paper, which had been published in the ‘premier medical publication in the industrial health area for medical professionals and anyone in the health and safety field’, reported to have identified 33 cases of diffuse pleural mesothelioma, where all but one case had a probable link to crocidolite (blue) asbestos exposure. Enlightened by Wagner, a ‘reasonable’ employer’, according to the pursuer’s expert, would have, by 1963:

‘… fully complied with all relevant legislation, regulations and guidance, would have warned their employees of the dangers from asbestos, would have provided suitable control measures / working methods to minimise emissions of airborne asbestos fibres; would have provided suitable Approved (sic) respirators and protective clothing; and would have applied the guidance given in the technical literature and in the relevant British Standard Specification for Respirators’.

However, Professor Willey put forward the counter-argument that in 1963, it was not considered by the ‘best academic researchers’ that the type of exposure experienced by the pursuer was injurious to health – only long-term exposure to high dust concentrations was. As a consequence of this, the defenders, not constituting a company directly engaged in asbestos-related manufacturing works, were not deemed to have had knowledge of the effects of such limited exposures. Whilst Mr. Howie had spoken of the 1960 paper, Professor Willey submitted that ‘even Wagner was not sure what he had discovered in 1959 [in South Africa]. This was why, at turn of the decade, the ‘best authorities in occupational lung disease research’ were not monitoring mesothelioma as a ‘major occupational risk’.

The status quo began to shift, the Professor reasoned, in October 1964, when Dr. Irving Selikoff organised a ‘major conference’ at the New York Academy of Sciences, called ‘Biological Effects of Asbestos’ – see the schedule of the event, here.[iv] At the end of the conference, a report summarising the state of modern clinical knowledge explained that tumours ‘could develop in the absence of asbestosis in the lungs and sometimes after a small exposure but always with a long or very long delay’. Shortly after this came another British Journal of Industrial Medicine article, by Newhouse and Thompson (1965),[v] which detailed the first epidemiological study to ‘clearly link’ three categories of asbestos fibre inhalation to the ‘new disease’ of mesothelioma:

  1. Occupational exposure;
  2. Secondary exposure via asbestos worker relatives; and
  3. Environmental exposure due to living in close proximity to an asbestos factory.

It even supported evidence of disease development after minimal exposures.

Thanks to the Newhouse and Thompson paper, the Chief Inspector of Factories assembled a committee to urgently review all evidence on the medical problems associated with asbestos exposure and the ensuing review prompted the enactment of The Asbestos Regulations 1969.

Attracting the attention Dr. Alfred Byrne, at The Sunday Times, Professor Willey thought it conceivable that the 1965 newspaper editorial précising Newhouse and Thompson, entitled: ‘Scientists track down a killer dust disease’,[vi] was responsible for pushing up-to-date knowledge into the public domain. Hence, it was branded ‘unreasonable’ to expect the defenders to work to such stringent standards in 1963, pre-dating the 1965 paper, especially as asbestos user industry guidance was not delivered until 1970-71.

Having digested expert debate surrounding the chronology of mesothelioma awareness, Lord Uist preferred Professor Willey’s analysis, doubting that the defenders would have read or been aware of the earlier Wagner paper located in a specialist medical publication. The judge found it ‘curious’ that Mr. Howie failed to mention the 1960 journal article until trial, i.e. it did not feature in any part of his report.

Relying on case law for supplementary insight on ‘foreseeability’, the pursuer cited multiple authorities, including Shell Tankers UK Ltd v Jeromson [2001] EWCA Civ 101; Maguire v Harland & Wolff Plc & Anor [2005] EWCA Civ 1; Bussey v 00654701 Ltd [2018] EWCA Civ 243; Gibson & Ors v Babcock International Ltd [2018] CSOH 78; Owen v IMI Yorkshire Copper Tube (Unreported, 15 June 1995); Gunn v Wallsend Slipway and Engineering Company Ltd (Unreported, 7 November 1988); and Gregson v Hick Hargreaves & Co Ltd [1955] 1 WLR 1252.

Whereas, the defenders primarily relied on The Hon. Mrs. Justice Swift DBE’s ruling, in Abraham v G. Ireson & Son (Properties) Ltd & Anor [2009] EWHC 1958 (QB), in which the defendants were found not to be in breach of the statutory duties owed, as:

‘… 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 levels to which the claimant was subjected gave rise to a risk of injury’.

Up until this ‘watershed’ year of 1965, Swift J could not accept that the defendants ‘should have appreciated that the claimant was at risk of asbestos-related injury and that their failure to do so and to take appropriate precautions for his safety was negligent’. It followed that the defendants could not have been ‘aware that the asbestos dust was “likely to be injurious” to the claimant’. Thus, they did not know and could not reasonably have been expected to comprehend ‘the risk of injury arising from the claimant’s exposure to the dust’ and it could not have been ‘reasonably practicable for them to take any steps to protect him from it’.

Ultimately, Lord Uist was persuaded that the rationale in Abraham was correct and adopted it in the extant case, because the expert evidence as a whole consistently conveyed that the ‘degree of exposure to asbestos dust in … [Watt] … was certainly no more than the degrees of exposure in the case of Abraham’.

With the Newhouse and Thompson paper post-dating the deceased’s employment, for the identical reasoning espoused by Swift J, in Abraham, the defenders were not held in breach of their duties owed as an employer, under common law or statute.

Full text judgment can be accessed here.

Sharing his observations on the case of Watt, Mr. Turton stated that, although ‘dependent on its facts’, the decision ‘serves to emphasise the importance of the 1965 watershed and the difficulty Claimants face in relation to low exposure prior to that date’, when the risk of mesothelioma was not widely known.

Ultimately, case authorities will turn on their own facts, but in this instance, an employer such as the defenders would not have been aware of the earliest medical literature (circa 1960) which theorised over the prospect of asbestos-induced mesothelioma.

 

[i] Philip Turton, ‘1965 is the Watershed: Watt v Lend Lease Construction (Europe) Ltd’ (8 March 2022 Ropewalk Chambers) <https://www.ropewalk.co.uk/knowledge-sharing/blog/disease/1877/1965-is-the-watershed-watt-v-lend-lease-construction-europe-ltd> accessed 18 March 2022.

[ii] ‘… 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 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’, per Lord Uist, at [2].

[iii] Wagner JC et al., Diffuse Pleural Mesothelioma and Asbestos Exposure in the North Western Cape Province. Br J Ind Med. 1960 Oct; 17(4): 260–271. <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1038078/pdf/brjindmed00208-0014.pdf> accessed 25 March 2022.  

[iv] Selikoff IJ et al., Biological Effects of Asbestos. Annals of the New York Academy of Sciences. v. 132, art. 1, p. 1-765. <https://nyaspubs.onlinelibrary.wiley.com/toc/17496632/1965/132/1> accessed 25 March 2022.  

[v] Newhouse ML and Thompson H, MESOTHELIOMA OF PLEURA AND PERITONEUM FOLLOWING EXPOSURE TO ASBESTOS IN THE LONDON AREA. Br J Ind Med. 1965 Oct; 22(4): 261–269. <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1069377/pdf/brjindmed00128-0015.pdf> accessed 25 March 2022.  

[vi] Dr Alfred Byrne, ‘Scientists track down a killer dust disease’ (31st October 1965 The Sunday Times).