Former lecturer who contracted mesothelioma fails in damages action against university over asbestos exposure

A judge in the Court of Session assoilzied the defenders after ruling that the pursuer had “failed to prove that he was exposed to dangerous levels of asbestos dust”.

Lord Pentland heard that in July 2012 the pursuer Dr Robert Prescott was diagnosed as suffering from a localised peritoneal malignant mesothelioma and sought damages from the defenders, the University of St Andrews, for the injury and loss he has suffered as a result of having developed that disease.

The pursuer alleged that he contracted the disease due to asbestos exposure while working as a lecturer in the school of psychology at the university.

He claimed that the exposure occurred when he visited the Old University Library in St Andrews while renovation works were taking place there between about 1976 and 1979.

Quantum of damages was agreed between the parties, but liability was contested.

The court was told that between 1964 and 1966 the Cambridge University natural sciences graduate was a NATO research fellow in the psychology department in Yale University, before returning to Cambridge where he was a senior research assistant until 1974.

He then took up a post as a lecturer in the school of psychology at St Andrews University and was promoted to senior lecturer, before retiring in 2003.

Dr Prescott, 77, who became an honorary senior lecturer at the university from 2004 until 2015, contended he was exposed to asbestos during renovation works at the Old Library building in St Mary’s Quad in the 1970s.

The purpose of the work, which began in around the late spring of 1977 and lasted until about 1979, was to convert and modernise the building for use by the psychology department, which was to be relocated from its existing premises at St Katharine’s Lodge.

The pursuer claimed that, in the course of his employment with the defenders, he required to visit the Old Library during the renovations and that during these visits he was “negligently exposed to dangerous levels of asbestos dust and fibres generated by the building works”.

Dr Prescott said he had been asked to help with the planning and layout of facilities for a new laboratory at the top of the building and said he had visited the Old Library around 12 to 14 times during construction.

He maintained that it was the inhalation of these poisonous substances that caused him to develop peritoneal mesothelioma many years later.

Counsel for the pursuer accepted in order for Dr Prescott to establish liability against the defenders it was essential that the court had to accept the material parts of his evidence as being both “credible and reliable” - otherwise, his claim would fail.

The pursuer had to prove, as the starting point for a successful claim, that he had been negligently exposed to dangerous levels of asbestos dust and fibres during visits to the Old Library, but the judge said that throughout the pursuer’s evidence, particularly in cross-examination, he had formed the “strong impression” that his recollection of events at the time of the renovation project in the Old Library in the 1970s was “unreliable”.

Lord Pentland said: “It appeared to me that the pursuer’s memory from that era was at best fragmentary and that he has now been left with no clear or reliable recollection of any pertinent details.”

He added that in making these findings about the lack of reliability in the pursuer’s evidence he was not intending to imply any criticism of the former academic’s honesty or integrity.

The judge continued: “It seemed to me to be significant that the pursuer was unable to offer any convincing explanation as to why he would have been on the construction site in the Old Library at a time in the project when asbestos was being stripped out and removed from the building and whilst dust and fibres were being released in significant quantities into the atmosphere.

“It is improbable that he would have been there whilst such work was being carried out; he had no knowledge of any of the technical issues that might have arisen during work of that nature; there would have been no practical or other contribution he could usefully have made at that time and he would probably have been in the way.

“It is much more likely that any visits the pursuer 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.”

He added: “In his evidence the pursuer had no recollection of having been exposed to any material containing asbestos. He did not know the type of material that was being removed when he visited the Old Library. He could not say that he had been there whilst asbestos sheets and boards or any other asbestos products were being taken out. Overall, the pursuer’s evidence regarding his possible contact with asbestos dust was sparse.”

In a written opinion, Lord Pentland said: “I have concluded that the pursuer (Dr Prescott) has failed to prove that he was exposed to dangerous levels of asbestos dust in the Old Library as he avers.”