Dave Berry | Partner

Asbestos Secondary Exposure

The case of Kay Gibson and others v Babcock International is ground breaking. It was the first case in Scotland where a Proof proceeded dealing with secondary exposure.

The pursuers of the court action were the children, siblings and grandchildren of the late Adrienne Sweeney who unfortunately died of mesothelioma on 30 August 2015.

What sets this case apart from the “usual” mesothelioma/asbestos cases is that the late Mrs Sweeney’s exposure to asbestos was through contact with her late husband’s work clothes upon his return from work.

Mr Sweeney worked at Babcock where he was exposed to asbestos from 1964 to 1970. He would return home from work in his work clothes. The clothes would often be covered in dust. Mrs Sweeney would wash his clothes. She would shake the clothes out to remove excess dust. The closes were normally so dirty and covered in dust they required washed separately from the rest of the family’s clothes. It was during this task that Mrs Sweeney was exposed to asbestos fibres.

The case highlights the usual difficulties with asbestos claims in that conditions such as mesothelioma have a very long latent period. As a result, due to the time elapsed and the fact both Mr and Mrs Sweeney had died, there was no direct evidence as to the nature and extent of the exposure of Mr or Mrs Sweeney to asbestos dust. The case also provides a useful reminder of the admissibility of hearsay evidence.

In this case owing to time elapsed those witnesses who could speak to levels of exposure had since died. The case provides a timely reminder as to the significance of taking early evidence either on commission or by way of affidavit.

The only matters that weren’t in dispute were that Mr Sweeney was employed by the defenders between 1962 and 1971 and that Mrs Sweeney died of mesothelioma.

The court began by ruling out likelihood of the Pursuer been exposed to asbestos in her own employment. Thereafter the court moved on to the question of when the risk of injury to a secondary victim was reasonably foreseeable to the Defenders.

Lady Carmichael determined that from 31 October 1965 at the latest, the defenders ought reasonably to have foreseen that a risk of injury arose to persons in the position of Mrs Sweeney by reason of secondary exposure. The basis for this determination was an article produced in the Sunday Times by Dr Burns on that date referencing a paper by Newhouse and Thompson of 22 October 1965 (which dealt with risks of familial exposure). Thereafter that article precipitated a government memorandum in 1967. It was of note that Babcock at that time was the largest boiler manufacturer in the world. Their boilers were insulated with asbestos. Their size created a presumption that they should be on the front foot when considering risks posed by asbestos. They were under a duty to concern themselves with contemporary knowledge in the field of occupational disease. The risk posed by asbestos had been known for some time. The Sunday Times article, brought the subject of secondary exposure into general public discourse. The defenders ought to have been alive to the reported risks. The reasonable and prudent employer ought to have appreciated the significance of the risk, and implemented changes rapidly.

Having established that the risk created by secondary exposure was known, the following required determined:

  1. Mr Sweeney was exposed to asbestos to an extent such that the defenders must have known he would take dust containing asbestos fibres home in his clothes,
  2. That the defenders failed to reduce that risk to the greatest extent possible.
  3. That the least exposure to asbestos from Mr Sweeney’s work clothes materially increased the risk of developing mesothelioma. Material in that context meaning more than minimal.

Level of Exposure

There was no evidence of any particular level of occupational exposure to the employee (Mr Sweeney) that ought to have alerted an employer of the risk to a person such as Mrs Sweeney. The evidence in relation to exposure was built wholly on hearsay evidence. Lady Carmichael identified that assessing the actual level of exposure to an employee in a historical case was fraught with uncertainty. Against that background, she accepted that it was relevant to ask whether the work that Mr Sweeney was engaged in or the work of those to whom he worked closely generated significant quantities of dust containing asbestos fibres. The Court required to do the best that it could with the material before it.

There must be knowledge on the part of the employer that the employee is being exposed to asbestos to such an extent as to create a risk that he will take asbestos home with him before there becomes a duty on the part of the employer to take precautions In other words, Mr Sweeney would have had to have come under significant exposure to asbestos and this was a pre-requisite to a finding of liability. Lady Carmichael was of the view that when considering the word “significant” she required to consider that there was no established safe level of asbestos exposure and there existed knowledge that secondary exposure to people who lived with asbestos workers carried with it a risk of fatal injury.

In the present case the Court was satisfied that on balance of probabilities, significant quantities of dust containing asbestos were generated during Mr Sweeney’s employment and that as a result of his proximity to that dust it would have got onto his clothing.

Therefore, significant quantities of asbestos were generated, this was held on Mr Sweeney’s clothing, and it was reasonably foreseeable that this would cause harm to someone such as Mrs Sweeney. This created the duty on the reasonable employer, exercising reasonable care to take reasonable precautions to protect Mrs Sweeney from this risk.

Failure to Reduce the Risk

Ultimately an employer in November 1965 would not have known exactly what level of exposure to Mr Sweeney would have given rise to the risk of injury.

However, it was beginning to become appreciated that there was no safe permissible level of exposure direct or indirect to asbestos dust. Lady Carmichael was of the opinion that the defender’s realisation of this would have been swift and thereafter subject to swift action.

In determining the standard of care required of someone upon whom a duty of care is imposed, the court ought to have regard to the probability of harm caused as a result of that breach of duty and probable seriousness of harm.

Against that background what an employer required to do as far as an employee was concerned was to reduce the risk to the lowest level practical. Once it was appreciated from late 1965 that there was a risk to persons in the position of the deceased, the duty was again to reduce that risk to the lowest level practical.

However, the evidence was that no precautions were taken by the Defender at all until following 1970. The simple precaution would have been for workers to change at the factory into and from their work clothing. As there was no safe known level of exposure, the Defender failed to reduce the risk to Mrs Sweeney to the lowest level practicable

Lady Carmichael determined that she did not require to make a very fine judgement as to precisely when the defender should have introduced precautions as she previously detailed, the defenders were a large industrial concern, they were aware of the risk in late 1965. In her view, they should have acted promptly within a period of months of October 1965. For these reasons, Lady Carmichael was satisfied that the defenders negligently exposed the Mrs Sweeney to asbestos and materially increased the risk she would develop mesothelioma.

Exposure Materially Increased Risk of Mesothelioma

In relation to the question of causation, Lady Carmichael advised that the court requires to consider whether the exposure materially increased the risk of developing mesothelioma. She came to the conclusion that even if the increase in risk were even a small fraction of that described by Mr Howie (who described a figure of at least 40 fold increase in risk each year), she would regard it as material. She came to the view that if Mrs Sweeney shook out and washed clothes visibly contaminated with dust at least once a week over a period of years, if that dust contained asbestos fibres then it seemed to her that on the balance of probabilities her risk of developing mesothelioma would be materially increased.

For these reasons, the Pursuers were successful at Proof.

As detailed above, this case is a legal first in Scotland being the first successful secondary exposure Proof. The case also provides an extremely useful overview of the law that sits behind claims for asbestos exposure.

At Jackson Boyd we have a great deal of experience of dealing with asbestos cases. If you have been diagnosed with an asbestos related condition and believe that it may be due to your working conditions please contact us online by clicking here or speak to a member of our specialist team on 0333 222 1855.

Dave Berry

Dave Berry

Personal Injury Team

“It may be something of a cliché but I enjoy helping my clients and guiding them through what can often be the daunting prospect of being involved in a personal injury court action, whilst also ensuring I obtain the best possible result for them.”

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