Family of asbestos victim awarded £360,000 damages 

The family of an office worker who died from a cancer caused by exposure to asbestos are to be awarded more than £360,000 in damages.

 

The relatives of Winifred Thacker sued her former employer North British Steel Group PLC after she passed away aged 67 from “metastatic mesothelioma” in September 2014.

 

A judge in the Court of Session ruled that the defender was liable to the pursuers after concluding that Mrs Thacker was exposed to “substantial” levels of the deadly dust while working in the dressing shops in the company’s foundry in Armadale, West Lothian, during the 1960s.

 

 

Lady Wise heard that the first pursuer John Thacker, the widower and executor of the late Mrs Thacker, raised an action along with the deceased’s daughter, granddaughter and sister against the defender, which was formerly known as the Atlas Steel Foundry and Engineering Company Limited and operated the foundry premises from about 1913 until about 1989.  

 

Mrs Thacker’s family maintained that she was exposed to high levels of asbestos dust in the course of her employment, which caused her to fall seriously ill in later life and ultimately led to her death.

 

It was agreed that, in the event that it was established that Mrs Thacker was exposed to asbestos dust as a result of the negligence and/or breach of statutory duty on the part of the defender, that exposure caused her mesothelioma. 

 

Accordingly, the central contentious issue at proof was whether the late Mrs Thacker was exposed to substantial quantities of dust, including asbestos dust in the course of her employment.  

 

If she was so exposed, it would then have been for the defenders to take all practicable measures to protect her against inhalation of that dust.   

 

The court heard that during the 1960s, businesses had knowledge that being exposed to asbestos was harmful to people.

 

 

The first issue of fact that was arguably contentious related to the period of time during which Mrs Thacker had worked at the foundry, but the judge accepted the evidence of the deceased’s husband and said she had “no hesitation” in finding that Mrs Thacker was employed by the defender for the five-year period between 1963 and 1968.

 

The second issue on which there was some dispute was the frequency with which Mrs Thacker was present in the dressing shops of the foundry in the course of her employment, but having heard evidence from another former employee who remembered the deceased, the judge found that she would have been present in the dressing shops “up to three, four or five times a week”.

 

The central issue in dispute was the extent to which asbestos dust was emitted into the atmosphere into the dressing shops in question, and a related question was whether the pursuers had proved that the deceased herself was exposed to any such asbestos dust - which defender argued they had failed to do. 

 

However, Lady Wise concluded that asbestos dust was being emitted into dressing shops and that “Mrs Thacker was being exposed to these substantial quantities of dust, including asbestos dust, regularly and routinely when she attended both dressing shops”.

 

She added: “Turning to the level of dust, including asbestos dust, to which Mrs Thacker was exposed, I have found that it was substantial. The defender contends that the exposure was at a level below that which a reasonably prudent employer would have foreseen a risk of injury to her. There was, however, evidence at proof that at the point of release the level of asbestos dust in the environment was beyond the maximum acceptable level at the time.”

 

Having found that the deceased was exposed to asbestos dust, the next issue was whether the defender took all practicable steps to protect their employees, including Mrs Thacker, against injury, but there was “no evidence about any measures at all being taken”.

 

The pursuers’ primary case was that the defender was in breach of its obligations under section 63(1) of the Factories Act 1961, which provides that “all practical measures” should be taken to protect employees from dust or fumes that are likely to cause injury.

 

 

The judge ruled that the pursuers had established liability both in terms of the statute and at common law.

 

In a written opinion, Lady Wise said: “I have already made the finding that Mrs Thacker was exposed to a substantial quantity of dust, including asbestos dust, and that such exposure was likely to have been above the maximum acceptable level at the time at least at the point of release. I have also found that the defender did not take steps of any kind to protect the deceased. Accordingly, I am satisfied that the pursuers have met the test in limb (ii) of section 63(1) and that the defender breached the relevant statutory duty. Causation clearly follows from the agreement that, if it is established that the deceased was exposed to asbestos dust as a result of the breach of statutory duty on the part of the defender the exposure caused the deceased’s mesothelioma.”

 

The judge also found that the pursuers had led sufficient evidence to prove the common law case and the first limb of section 63(1) of the 1961 Act.

 

She added: “It was known by the 1960s that asbestos dust would be likely to cause injury…In the present case, I have found that the deceased was directly exposed to significant quantities of dust, including asbestos dust, until she ceased employment by the defender in 1968. Accordingly, between about the end of 1965 and the termination of her employment with the defender in 1968, the defender knew or ought to have known that any exposure to asbestos dust was likely to be injurious to Mrs Thacker and that there was no need for the previous requirement of ‘heavy and prolonged exposure’ before any duty could arise. I conclude that the defender breached the duty to the deceased during that period by failing to take any steps to reduce or negate her exposure.”

 

At the outset of the proof parties had agreed that in the event that the defender was found liable damages should be set at a total of £360,000, with £295,000 to be awarded to Mrs Thacker’s husband, £35,000 to her daughter, £15,000 to her granddaughter and £15,000 to her sister.

 

But interest will require to be added and the judge fixed a by order hearing to consider the precise sums to be awarded and any question of expenses.