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Kay Gibson & Others -v- Babcock International Limited [2018] CSOH 78

Adrienne Sweeney died from mesothelioma in 2015.  Her late husband had worked for the defenders between 1962 and 1971 and was exposed to asbestos.  He routinely returned from work in clothing which was covered  with asbestos dust.  Mrs Sweeney brushed down the overalls each day, and washed them around 2 or 3 times a week.  Her relatives claimed damages arising from her death. 

This was the first secondary exposure asbestos case which had been heard in Scotland.  The pursuer assumed a burden of proof of showing:-

  1. That Edward Sweeney had been exposed to harmful quantities of asbestos dust;
  2. That his employers knew that such exposure was harmful during his period of employment;
  3. That Adrienne Sweeney had been exposed to asbestos dust from his clothing;
  4. That between 1962 and 1971, the defenders should have been aware of the risk.

These were significant hurdles.  In the past few years, defenders in Scotland and England had been greatly encouraged by the case of Williams -v- The University of Birmingham [2012] PIQR P4, which seemed the suggest that the court should take a rigorous and wholly unrealistic  post factual  attitude to the quantity of asbestos exposure, and separately, the date of knowledge of what harmful exposure consisted in.

In Gibson the pursuer succeeded on all issues.  Mr Sweeney had been negligently exposed to asbestos dust during his employment, although it was impossible to state with precision what was the exact  measure of exposure.  The duty was to reduce exposure to the lowest level reasonably practicable.  The Sunday Times had printed an article on the dangers to spouses of secondary exposure in 1965, and that was taken as the date of knowledge. 

In a lengthy,  detailed and indeed luminous judgement, Lady Carmichael effectively consigned the  Williams approach to the legal dustbin.  A few weeks later, the High Court in England in  case of Carey -v- Vauxhall,  did much the same, citing Gibson with approval.

But for the writer, perhaps the most poignant fact contained in the judgement is the ongoing frequency of mesothelioma victims. This is a disease which is invariably fatal,  with the agents in the Gibson case stating that they received around 3 sets of new mesothelioma  instructions every week. 

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