Legal first as family of mesothelioma victim awarded £250,000 damages over death from ‘secondary exposure’ to asbestos

Relatives of a woman who died after contracting mesothelioma as a result of exposure to asbestos dust from washing her husband’s work clothes have been awarded nearly £250,000 in damages in a landmark Scottish legal ruling.

 

A judge in the Court of Session ruled that the children, siblings and grandchildren of the late Adrienne Sweeney should be awarded compensation, having held that her now deceased husband William Sweeney’s former employers Babcock International Ltd were “negligent” because they failed to “reduce the risk” of “secondary exposure”.

 

The pursuers, Kay Gibson, Jan Sweeney and William Sweeney, raised the action following Mrs Sweeney’s death in August 2015.

 

 

It was the first case of its kind in Scotland in which a proof had taken place on the issue of secondary exposure, ie exposure to someone in the home of an employee, alleged to have caused mesothelioma in a “secondary victim”. 

 

Lady Carmichael heard that the deceased mother-of-three had never smoked, but her late husband used to return home from work with his overalls and underclothes “covered” in asbestos dust while employed as an engineer at the Babcock and Wilcox boiler factory in Renfrew from 1962 to 1971.

 

Prior to her death, aged 75, Mrs Sweeney told a paralegal that her husband would “greet me with a cuddle while he still had his work clothes on”, adding that she had to wash his work clothes regularly because “they were always covered in dust and manky”.

 

As their father had died, aged 71, in 2008, the family relied on evidence from some of his former colleagues at the factory, one of whom also died before the hearing.

 

The court also heard that the dangers of secondary exposure to were first flagged up in a paper published in the British Journal of Industrial Medicine in 1965, which highlighted cases of women falling ill who had “washed her husband’s dungarees or work clothes”.

 

 

The judge found that was clear evidence from 1965 that people were at risk of developing mesothelioma through secondary exposure to asbestos, and that the company failed to take any precautions to protect relatives of its employees, such as having work clothes washed at the factory, until after 1971.

 

Accordingly, she ruled that the defenders had “negligently exposed” the deceased to asbestos, and “materially increased the risk that she would develop mesothelioma”.

  

In a written opinion, Lady Carmichael said: “I accept that it is more likely than not that the deceased developed mesothelioma as a result of being exposed to asbestos…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.

 

“Given the duration of Mr Sweeney’s employment as a fitter…I am satisfied that he would over a substantial number of years have been exposed to varying quantities of asbestos dust, and that he took dust containing asbestos fibres home with him on his clothes. I am satisfied…that this exposure would have been known to the defenders, and that the quantities of dust produced by the operations, particularly those involving the production and use of asbestos paste, should have alerted them to the risk that dust would be carried home on clothing.”

 

She added: “I do not regard the presence or absence of evidence about the actual level of exposure of the deceased as of particular significance in considering negligence. As I have said, it will be impossible to produce more than informed speculation as to the level, and I do not regard a finding as crucial to establishing liability.  

 

“In relation to causation, an estimate of exposure is of some use, in that, in relation to causation, the court requires to consider whether the exposure materially increased the risk of developing mesothelioma…If the deceased shook out and washed clothes visibly contaminated with dust, at least once of week, over a period of years, and that dust contained asbestos fibres, then it seems to me that, on the balance of probabilities, her risk of developing mesothelioma would be materially increased.  

 

“I am satisfied that the defenders failed to reduce the risk to the deceased. There was no safe, known level of exposure. Against that background, what an employer required to do, so far as an employee was concerned, was to reduce the risk to the lowest level practicable…They were aware of the risk in late 1965. They should have acted promptly, within a period of months of October 1965.”