A damages claim has been won by the family of a woman who did not work in an asbestos environment but whose husband regularly came home covered in asbestos dust, after she died from the cancer mesothelioma which they alleged was caused by her exposure to asbestos.
In she believed to be the first case of its kind to go to proof (others are reported to have been settled), Lady Carmichael in the Court of Session awarded agreed damages to Kay Gibson and others, children and other relatives of Adrienne Sweeney, who died of mesothelioma on 30 August 2015. The case was brought against Babcock International Ltd, as employers from 1962 to 1971 of Mrs Sweeney's late husband William, who died in 2008.
The pursuers led evidence that Mr Sweeney used to return from work covered with asbestos on his clothing, greeting his wife with a "cuddle", and that she was regularly washing his work clothes because they were always covered in dust.
Lady Carmichael held that the risk from asbestos was sufficiently known by 1965, but the company failed to take any precautions in relation to relatives of employees, such as by having work clothes washed at its factory, until after 1971. It had therefore negligently exposed Mrs Sweeney to asbestos, and materially increased the risk that she would develop mesothelioma.
She recognised the "acute" difficulties of proof in this case, though noted the late stage at which the pursuers' agents appeared to have focused on the need for proof.
In considering liability, the judge commented: "It therefore seems to me that if I were considering the matter as between employer and employee, I would not be looking at foreseeability of harm or breach of duty by reference to any particular level of asbestos in the environment. Rather, I would be considering whether the employer had reduced exposure to asbestos to the greatest extent possible and considering the consequences of any failure to do so...
"I accept that the deceased shook out and washed Mr Sweeney’s work clothes in the manner described in her statement. Her statement is imprecise as to the frequency with which she did so, but I infer from what she said that this was a regular occurrence, carried out throughout the different seasons, and, on the balance of probabilities, at least weekly. I infer that the defenders knew or ought to have known that work clothes would be cleaned at home, given that they did not provide clean clothing themselves...
"It is very much more likely that she developed mesothelioma because she was exposed to asbestos. That might be in the environment generally, or it might be by some other means. That she developed mesothelioma does not lead to an inference that she was exposed to any particular degree; her exposure may have been slight, as Dr Semple said. I am satisfied that the source of the asbestos was more likely than not to have been asbestos on Mr Sweeney’s clothes, as I am satisfied that he was exposed to asbestos in the course of his work and that he brought home dusty clothes. I am not satisfied that there is evidence of any competing, or even additional, potential source of exposure so far as the deceased is concerned."