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

This case importantly highlights that detailed, reliable pursuers evidence combined with hard factual expert evidence is necessary when claims for asbestos exposure are at a lower exposure level. It also shows the importance of defenders obtaining expert evidence to speak to and highlight this necessity.

The pursuer alleged he was exposed to asbestos during the course of his employment with the defenders.  As a result of that exposure, he developed a peritoneal malignant mesothelioma.  Quantum was agreed during the course of the proof diet in the sum of £180,000.  The focus of the judgment was on the factual evidence led to support the pursuer’s allegations of negligent exposure. 

The facts

The pursuer was employed by the defenders as a lecturer in their school of psychology since around 1974.  It was claimed by the pursuer that he was exposed to asbestos during the course of renovations and reconstruction of the defender’s Old Library.

The factual evidence focused on the pursuer’s recollection of the renovation works carried out at the old library.  Crucially, the pursuer was unaware of the type of materials being removed from the Old Library during his visits.  The pursuer’s recollection of events was held to be vague, inconsistent and fragmented. He could not state whether he was present when any asbestos materials were being stripped out and he had no recollection of having been exposed to any asbestos materials.

Lord Pentland agreed with the observations of Leggat J in Gestmin SGPS S.A. v Credit Suisse (UK) Ltd [2013] EWHC 3560:

“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”

His Lordship concluded that the evidence was insufficient for him to make a finding of fact that the pursuer had been exposed to dangerous quantities of asbestos dust and his action must fail.

Expert evidence

Lord Pentland discussed the expert witness evidence.  The pursuer’s expert, Ms Karen McNeil of Cadogan Consultants was unable to give any indication as to the actual levels of asbestos to which the pursuer may have been exposed. In the absence of any evidence as to the actual levels of exposure, his Lordship stated:

It would involve unacceptable speculation for the court to attempt to derive from Mrs McNeill’s evidence about potential maximum exposure levels a factual finding as to the pursuer’s actual level of exposure to asbestos.

The defenders led evidence from Dr John Moore-Gillon, Consultant Respiratory Physician who emphasised the importance of establishing the actual and cumulative levels of exposure, which was necessary to determine whether exposure would be considered de minimis.

The court held that the pursuer failed to establish he was exposed to dangerous levels of asbestos dust and further, that he was unable to establish the actual and cumulative levels of exposure, his claim could not have succeeded and the defenders were assoilzied.  

Comment

The trend of mesothelioma claims is changing from the traditional source of heavy exposure within the shipyards where negligent exposure was generally accepted, to claims of low level or secondary exposure as with the current case. Defenders and Defendant insurers must be aware that pursuers must satisfy the court that sufficient evidence of exposure and appropriate expert opinion will be forthcoming.  If this is not provided defender must surely seek to defend these claims in and out of court.