APPEAL BY NICOLA STEVEN WATT OR MURRAY AND OTHERS AGAINST LEND LEASE CONSTRUCTION LTD

Factual and Procedural Background

The late deceased, born in 1941 and deceased in 2017 from mesothelioma, was employed as a joiner by the Defendant, then known as Company B, during a period in 1963. The Plaintiff, representing the deceased's surviving relatives, brought an action alleging that the Defendant negligently exposed the deceased to asbestos during his employment, breaching statutory duties under regulation 20 of the Construction (General Provisions) Regulations 1961. The deceased had also been exposed to asbestos prior to this employment. The central issue at trial was whether it was reasonably foreseeable to the Defendant in 1963 that the exposure level posed a risk of asbestos-related injury. The Lord Ordinary initially found that the Defendant could not have reasonably foreseen such a risk given the low level and short duration of exposure, resulting in a dismissal of the claim. The Plaintiffs appealed this decision.

Legal Issues Presented

1. Whether the Defendant, in 1963, ought reasonably to have foreseen that the deceased's low-level, short-duration exposure to asbestos posed a risk of asbestos-related injury.
2. Whether the Lord Ordinary erred in law or fact in his assessment of expert evidence and his application of precedent cases concerning foreseeability and negligence.
3. Whether the Lord Ordinary improperly relied on findings from the case of Abraham v G Ireson & Son (Properties) Ltd in his reasoning.

Arguments of the Parties

Appellant's Arguments

• The Lord Ordinary erred in his interpretation of key Court of Appeal cases (Jeromson, Maguire, Bussey), suggesting those cases' factual findings should apply to the present circumstances.
• The Lord Ordinary improperly adopted the reasoning and evidence from Abraham, contrary to principles outlined in Y C v Secretary of State for the Home Department (2019 SC 285), thereby committing errors of law.
• The Lord Ordinary erred in equating the deceased's exposure with that in Abraham despite the presence of visible dust, and that the judge in Abraham made factual errors concerning risk assessment based on 1960 safety literature.
• Consequently, the matter should be reopened for this court to reassess the evidence favorably to the Plaintiffs.

Respondent's Arguments

• The Lord Ordinary made independent factual findings based on the evidence before him and did not adopt factual findings from Abraham.
• The Lord Ordinary correctly applied the foreseeability test as set out in Jeromson and subsequent authorities, assessing whether a reasonable employer should have identified a risk given the degree of exposure and knowledge at the time.
• The reasoning in Abraham was appropriately referenced only to illustrate the legal principles and not as a basis for factual findings.
• The Lord Ordinary's conclusions on exposure level and knowledge of risk were supported by unchallenged expert evidence and are entitled to deference.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the evidence, particularly the expert testimony, and found that the deceased's exposure to asbestos was secondary, intermittent, low-level, and of very short duration (three to four days). The Lord Ordinary's factual findings were based on unchallenged expert evidence, notably from the Defendant’s occupational safety specialist. The court emphasized that the Lord Ordinary did not improperly adopt factual findings from Abraham but referred to that case solely to explain the legal framework regarding foreseeability and statutory duty.

The court reaffirmed the correct legal test for foreseeability as articulated in Jeromson, which requires assessing whether a reasonable employer at the time would have identified a risk given the degree of exposure and the contemporaneous knowledge of asbestos hazards. The Lord Ordinary concluded that such knowledge did not exist in 1963 at the level of exposure experienced by the deceased, with awareness arising only after publication of relevant scientific papers in 1965.

The court rejected the appellant’s contention that the Lord Ordinary erred in law or fact, concluding that the appeal grounds largely misunderstood the role of precedent and the nature of the factual findings. The appeal was thus dismissed.

Holding and Implications

The court REFUSED THE APPEAL, upholding the Lord Ordinary’s decision that the Defendant was not negligent in 1963 because it was not reasonably foreseeable that the deceased’s low-level asbestos exposure presented a risk of injury.

This decision directly affects the parties by affirming the dismissal of the claim. No new legal precedent was established, as the court applied existing principles of foreseeability and evidential assessment consistent with prior case law.