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3 September, 2018
Kay Gibson and Others v Babcock International Limited  CSOH 78 – Secondary Exposure and Secondary Evidence
Three features in particular in this opinion from Lady Carmichael are worthy of note. For the first time a Scottish Court has been required to decide a case involving secondary exposure to asbestos. Second, there is a positive finding of the date [31 October 1965] from when an employer ought reasonably to have foreseen a risk of injury by reason of secondary exposure. Third, there is guidance as to how courts balance the need for pragmatism in the face of the inevitable evidential difficulties where exposure occurred decades ago while at the same time maintaining the requirement of proof of the essential elements.
The relatives of a woman who died of mesothelioma on 30 August 2015 sought to prove she contracted the disease from her husband’s contaminated working clothes. They alleged that throughout his period of employment he came home covered in asbestos dust. From 1962 until 1971 he was an engineer fitter in a boiler manufacturing plant at Renfrew. In its day this establishment was “the largest boiler-making works in the world”. It was a major supplier of boilers to the shipbuilding and power generation industries. Asbestos was a ubiquitous heat insulation material in the manufacture of boilers during that era.
The husband died of unrelated natural causes in 2008. Other than an idiopathic risk, secondary exposure was the wife’s only known contact to asbestos dust. Although the employers raised the possibility she might have had some exposure to asbestos while working as a secretary in a garage in the late 1970s this was easily dismissed as speculation.
The claimants contended that it was not necessary to establish the precise level of exposure to asbestos sustained by the husband in his employment – it was enough that significant quantities of dust were generated and that as a result of proximity to the dust it would have got on to his clothing. On behalf of the employers and under reference to the decision of the Court of Appeal in Williams v University of Birmingham  EWCA Civ 1242 it was submitted that fault required that any exposure was beyond the level regarded as acceptable at the relevant time.
The problem with Williams as a persuasive authority is that important cases such as Maguire v Harland and Wolff plc  EWCA Civ 01and Jeromson v Shell Tankers (UK) Ltd  ICR 1223 were not cited or referred to by the Court. The Court of Appeal has recently revisited Williams and explained its reasoning in Bussey v 00654701 Ltd (formerly Anglia Heating Ltd) 2018 [ICR] 1242. Lady Carmichael rejected the argument for the employer based on Williams. She held that in order to establish negligence the claimants had to prove that
(a) The husband employee was exposed to asbestos dust to such an extent such that the employer must have known he would take dust containing asbestos fibres home on his clothes and
(b) The employer failed to reduce the risk to the wife to the greatest extent possible
Date of knowledge
Lady Carmichael considered the publication of the paper Mesothelioma of Pleura and Peritoneum following exposure to Asbestos in the London Area (Newhouse and Thompson) published in the British Journal of Industrial Medicine in 1965 and commentary on it in an article on 31 October 1965 by Dr Byrne in the Sunday Times. She held that this marks the point from which an employer should have been alive to the risk of secondary exposure.
Significantly, the Court rejected the contention made on behalf of the employers that the 1965 articles only put an employer on notice where there was heavy exposure. As the 1965 paper and article make clear there were a variety of circumstances apart from direct or heavy industrial exposure in which contact with asbestos might cause mesothelioma. It has been accepted by the Court that from 1965 it was known that a very brief exposure to asbestos could prove lethal. Whether or not employers in fact faced up to the implications of Newhouse and Thompson Lady Carmichael held that “the implications were clearly there, and in my view gave rise to an obligation to take reasonable care to avoid exposing family members to asbestos from workers’ clothing”
Under reference to the dissent of Mance LJ (as he then was) in Maguire (cit. supra) an attempt was made to argue that the date of knowledge should be earlier. The claimants’ expert occupational hygienist had suggested 1960 under reference to earlier papers and material. Lady Carmichael was not prepared to place reliance on this earlier material. It had not been referred to directly in evidence. A more considered, comprehensive and detailed examination of the literature might just possibly permit an earlier date to be accepted in a future case. The potential for making such an argument will depreciate over time as exposure before 1965 becomes less of an issue.
Evidence of Exposure
The evidence led on behalf of the claimants was not contradicted or seriously challenged. Against a background of a heavy industrial process using asbestos insulating materials in the 1960s it is perhaps not surprising that the court found that there was exposure to quantities of asbestos dust in the application of asbestos rope, cloth and gaskets to boilers. Although there was no direct evidence of proximity to laggers the Court was satisfied that “this exposure would have been known to [the employers] and that the quantities of dust produced by the operations, particularly those involving the production and use of asbestos paste, should have alerted them to the risk that dust would be carried home on clothing”.
Nor did the court require detailed evidence as to the level of secondary exposure of asbestos dust. It will be impossible to produce more than informed speculation as to the level. The material increase in risk of contracting the disease from dust generated through shaking the clothing was established. The employer took no precautions of any kind before 1971. From then the employer required work clothes to be left at work and cleaned there. Such a relatively simple protective measure would have reduced the risk to the wife. Liability was thus established.
The Pursuer was represented by Simon Di Rollo QC instructed by Thompsons.
The full Opinion of Lady Carmichael is available here.