UK: Court Of Session Confirms The Standard Of Evidence Required In Mesothelioma Claims

Last Updated: 15 January 2016
Article by Toni Ashby

Robert Prescott v. The University of St Andrews [2016] CSOH 3

The case

The pursuer, Dr Robert Prescott, was a lecturer in psychology at St Andrews in the mid to late 1970s. From 1977 there was a substantial renovation of the Old Library in St Mary's Quad for the purpose of converting the building for use by the psychology department. Work took place over the course of around two and a half years.

After developing peritoneal mesothelioma in July 2012, Dr Prescott raised an action against the university alleging exposure to negligent quantities of asbestos dust during the renovation process. He had been involved in that process to the extent of advising on the layout of a new animal laboratory. He gave evidence to the effect that he visited the building site on 12 to 14 occasions during the construction phase and had been present when stripping out of the building was taking place. It was a building site, and dusty.

The University disputed that Dr Prescott had been present during stripping out. In cross-examination Dr Prescott confirmed that he had no responsibility for the workmen on site and would not have been there on a day to day basis. He agreed that one would normally expect stripping out to take place at the early stages of a project, but did not accept that it had taken place by the time he had been in the building. He had no explanation for why he had not confirmed this alleged asbestos exposure to his treating doctor at the time of his diagnosis, or in his benefits application completed shortly after his diagnosis.

John Reid, a ceiling fixer who had put in a suspended ceiling at the University gave evidence for Dr Prescott. He described the process of ripping out and replacing ceilings. He did not know Dr Prescott and had responded to an article about the case in The Sunday Post.

The evidence of an engineer, Karen McNeil of Cadogans, was also heard, in relation to knowledge of the dangers of asbestos in the late 1970s, and the extent of Dr Prescott's asbestos exposure. Mrs McNeill's opinion was that by that time there was no known safe level of exposure to asbestos dust. However, she was unable to quantify the pursuer's cumulative level of exposure. She could only give potential maximum levels, taken from the literature.

For the defender, Dr Moore-Gillon, an eminent consultant respiratory physician, explained that it was necessary to know the actual and cumulative levels of exposure. It is only once such an estimate has been made that it becomes possible to assess whether any exposure materially increased an individual's risk of developing asbestos related disease.

The decision

Dr Prescott failed to establish liability on the part of the university. The Lord Ordinary's strong impression was that, while he did not find Dr Prescott to be dishonest, his recollection of events was unreliable. Agreeing with the observations of Leggatt J in Gestmin SGPS S.A. v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), he stated:

"The process of attempting to remember events in the distant past is an inherently fallible one; it is a process that is highly susceptible to error and inaccuracy.  Our efforts to think back many years to recollect the details of past events are liable to be affected by numerous external influences; involvement in civil litigation can in itself operate as a significant influence.  All remembering of events many years ago involves processes of a reconstructive nature;  these processes are largely unconscious with the result, as Leggat J said, that the strength, vividness and apparent authenticity of memories are often not reliable markers of their truth."

The Lord Ordinary found it improbable that Dr Prescott would have been present in the building when asbestos was being stripped out. His recollection as to what his role in the renovation had been was unclear. It was much more likely that his visits would have taken place at a later stage, when stripping was completed, and floors in place. He had no recollection of being exposed to asbestos materials. The evidence overall was sparse and it was significant that none of the allegations forming the basis of the case had been mentioned at the initial meeting with the oncologist, or in the benefits application.

Whilst not strictly relevant to his decision, the Lord Ordinary also made it clear that in order for a pursuer to establish negligence against a defender in a low exposure case such as this, he must prove the actual level of asbestos dust to which he was exposed. It was not enough simply to show the maximum potential levels, as set out in the literature.

The impact

This decision makes it very clear that the rules of evidence will not be relaxed simply because a claimant is suffering from a hideous and terminal disease such as mesothelioma.

Whilst the decision turns on its own facts, potentially there are wider consequences. Over time, the nature of mesothelioma claims is changing, from the traditional shipyard or construction claims involving indisputably heavy exposure, to more ambiguous cases of low or transitory exposure. This decision will encourage claimant firms to look very carefully at the exposure evidence in these difficult claims before embarking upon a litigation. They will also ensure that they utilise appropriate experts, who are able to assist the court in evaluating actual and cumulative levels of exposure.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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