Dr Robert Prescott, a former lecturer at the University of St Andrews, sought damages from his employer after developing mesothelioma. Dr Prescott claimed his exposure arose from involvement in renovation works at the Old University Library. However, his claim was dismissed because he failed to prove that he had been negligently exposed to dangerous levels of asbestos dust and fibres.
The effect of passage of time
Hearing the case in the Outer House of the Court of Session, Lord Pentland highlighted the difficulties inherent in giving evidence about events that took place in the 1970s. He indicated that he did not intend to imply any criticism of Dr Prescott's honesty or integrity. However, Lord Pentland agreed with the observations of Leggatt J in Gestmin SGPS S.A. v Credit Suisse (UK) Ltd  EWHC 3560 (Comm), saying:
"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."
Lord Pentland decided that he must evaluate the reliability of Dr Prescott's claimed recollections with caution. He found it “improbable” that Dr Prescott would have been on the construction site when asbestos was being stripped out and whilst dust and fibres were being released in significant quantities into the atmosphere. Dr Prescott had no knowledge of the technical issues that might have arisen during the work of that nature. It was much more likely that any visits made to the site would have been at a later stage, after the stripping out and dirty work had been completed and any asbestos had been taken out.
Lord Pentland also considered Dr Prescott’s previous statements about his history of asbestos exposure. Information recorded by his consultant oncologist noted that there was no definite history of asbestos exposure, but that his University work had been in relation to marine biology and he had, therefore, spent a lot of time on ships which may have contained asbestos. This cast doubt on his subsequent contention that he was exposed to asbestos in the Old Library. Dr Prescott had also provided information about his history of asbestos exposure when he attended Asbestos Action (Tayside) in order to complete an application for industrial injuries disablement benefit. It was, significant, said Lord Pentland, that there was no mention anywhere in the form of possible exposure in the Old Library.
Lord Pentland concluded that the evidence was not sufficiently reliable to enable a finding that Dr Prescott was exposed to dangerous quantities of asbestos dust during the renovation works in the Old Library. The action could not, therefore, succeed.
This case is a reminder that the court requires evidence of exposure to be positively proved by the Pursuer. Only then will the court consider evidence as to whether the exposure was negligent.
Read the full judgment here.