Introduction

The case of Nicola Steven Watt and others against Lend Lease Construction (Europe) Limited ([2022] ScotCS CSOH_23) was adjudicated in the Scottish Court of Session on March 3, 2022. The plaintiffs, representing the surviving relatives of the late James Watt (Mr. Watt), brought a lawsuit against the defendants, Lend Lease Construction (formerly Bovis Construction Limited), alleging negligence. The central claim was that Mr. Watt developed mesothelioma due to negligent exposure to asbestos during his employment as a joiner between January and June 1963. Additionally, the plaintiffs contended that the defendants breached Regulation 20 of the Construction (General Provisions) Regulations 1961, which mandated safety measures to prevent harmful inhalation of dust or fumes in construction settings.

Summary of the Judgment

Lord Uist presided over the case and ultimately ruled in favor of the defendants, absolving them from liability. The court concluded that the defendants were not negligent as they were not aware, nor could they reasonably have been aware at the time of Mr. Watt's employment, that the asbestos exposure he experienced posed a significant risk of developing mesothelioma. The judgment emphasized the concept of foreseeability, determining that the medical understanding in 1963 did not support the notion that such low-level, intermittent asbestos exposure could lead to mesothelioma. Consequently, the defendants were found not to have breached Regulation 20 of the 1961 Regulations.

Analysis

Precedents Cited

In his judgment, Lord Uist referenced several pivotal cases to contextualize the principle of foreseeability in negligence claims:

• Shell Tankers v Jeromson [2001] EWCA Civ 101;
• Maguire v Harland & Wolff plc [2005] EWCA Civ 01;
• Bussey v 00654701 Ltd [2018] EWCA Civ 243;
• Gibson v Babcock International Ltd [2018] CSOH 78;
• Owen v IMI Yorkshire Copper Tube (unreported, 15 June 1995);
• Gunn v Wallsend Slipway and Engineering Company Ltd (unreported, 7 November 1988);
• Gregson v Hick Hargreaves & Co Ltd [1955] 1 WLR 1252.

These cases collectively addressed the foreseeability of injury, a cornerstone in establishing negligence. They underscored that what constitutes a foreseeable risk is inherently tied to the specific facts and knowledge available to the defendant at the time of the incident.

Legal Reasoning

The crux of the judgment hinged on the concept of foreseeability. To establish negligence, the plaintiffs needed to demonstrate that the defendants should have reasonably anticipated the risk of asbestos-induced injury during Mr. Watt's employment. Lord Uist scrutinized the scientific and regulatory understanding of asbestos risks prevalent in 1963. At that time, medical research did not conclusively link low-level asbestos exposure to mesothelioma, and regulatory frameworks were not stringent regarding secondary, intermittent exposures.

Expert testimonies from Dr. Peter Semple and occupational hygienist Robin Howie were pivotal. They attested that Mr. Watt's exposure was minimal and occurred over a brief period, aligning with the medical consensus of the era that such exposure levels were not significantly injurious. Furthermore, the defendants were found not to have had access to the emerging scientific evidence linking asbestos to mesothelioma, particularly since major research culminating in the 1965 Newhouse and Thompson study was not widely disseminated prior to then.

Impact

This judgment reinforces the legal standard that negligence, particularly concerning foreseeability, is heavily dependent on the contemporary state of knowledge and regulatory standards. It serves as a precedent in future occupational health cases, emphasizing that employers are not liable for risks that were not reasonably foreseeable based on the scientific and regulatory context of their time. Consequently, employers are encouraged to adhere to the prevailing safety standards and remain vigilant about emerging risks as scientific understanding evolves.

Complex Concepts Simplified

Foreseeability

Foreseeability refers to whether a reasonable person in the defendant's position could have anticipated the risk of harm resulting from their actions or omissions. In legal terms, it's a threshold concept in negligence, determining if the defendant owed a duty of care to the plaintiff.

Regulation 20 of the 1961 Regulations

Regulation 20 of the Construction (General Provisions) Regulations 1961 mandated that employers must implement all reasonably practical measures to prevent the inhalation of injurious dust or fumes during construction activities. This could include ensuring adequate ventilation or providing suitable respirators to employees.

Cumulative Exposure

Cumulative exposure quantifies the total exposure to a hazardous substance over a period. It is calculated by multiplying the average concentration of the substance in the air by the duration of exposure. For instance, exposure to 1 fiber/ml for 10 years results in a cumulative exposure of 10 fiber/ml.years.

Conclusion

The judgment in Nicola Steven Watt v. Lend Lease Construction (Europe) Limited underscores the paramount importance of foreseeability in negligence claims. By delineating the boundaries of employer liability based on the scientific and regulatory knowledge of the time, the court reinforced that liability is not static but evolves with advancements in understanding and societal standards. This decision serves as a guiding principle for future cases, emphasizing that employers must align their safety practices with contemporary knowledge and regulatory requirements to uphold their duty of care.