Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 3

 

PD1798/14

OPINION OF LORD PENTLAND

In the cause

ROBERT PRESCOTT

Pursuer;

against

THE UNIVERSITY OF ST ANDREWS

Defenders:

Pursuer:  Grahame QC, Hastie;  Digby Brown LLP

Defender:  MacKenzie;  Clyde & Co

13 January 2016

Introduction

[1]        In July 2012 the pursuer was diagnosed as suffering from a rare form of cancer known as a localised peritoneal malignant mesothelioma.  In this action he seeks damages from the defenders, the University of St Andrews ("the University"), for the injury and loss he has suffered as a result of having developed that disease.  The pursuer alleges that he contracted the disease due to asbestos exposure in the course of his employment with the defenders as a lecturer in the school of psychology at the University.  In his written pleadings the pursuer claims that the exposure occurred when he visited the Old University Library in St Andrews ("the Old Library") whilst renovation works were taking place there between about 1976 and 1979 and after he had moved into his office in the building in about 1978 or 1979.  In her closing submissions on behalf of the pursuer, Miss Grahame QC abandoned the claim insofar as based on negligent exposure after the pursuer moved into his office. 

[2]        The action came before me for proof on liability and quantum of damages.  In the course of the hearing parties agreed damages in the sum of £180,000, inclusive of interest to the date of proof (joint minute paragraph 73, number 27 of process). 

[3]        At the proof the pursuer gave evidence in support of his case.  He led evidence from:  John Reid, a suspended ceilings tradesman;  Karen McNeill, an engineer;  Dr Peter Reid, a consultant respiratory physician;  and Dr Lloyd Carson, the pursuer’s wife. 

[4]        For the defenders, evidence was led from Professor Arthur Milner, a retired member of the academic staff in the defenders’ psychology department;  and Dr John Moore-Gillon, a consultant respiratory physician.

 

The pursuer
[5]        The pursuer was born on 9 December 1938.  Having graduated in natural sciences from Cambridge University in 1961, he went on to obtain a PhD there in 1964 on brain function and reinforcement regimes.  Between 1964 and 1966 he 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.  Subsequently, he was promoted to senior lecturer.  In about 1983 the pursuer was appointed as the inaugural director of the Scottish Institute of Maritime Studies in the school of history at the University.  Following that appointment, the pursuer divided his time between the two departments until his retirement from employment with the University in 2003.  Between 2002 and 2004 the pursuer held a research fellowship at the National Maritime Museum in Greenwich.  He was an honorary senior lecturer at the University from 2004 until 2015.

 

The renovation project at the Old Library
[6]        In or about 1976 the defenders decided to carry out substantial renovation and internal reconstruction of the Old Library in St Mary’s Quad at the University.  The project was too large to be handled exclusively by the defenders’ internal works’ department so external contractors were engaged.  They included Dobie‑Johnston Limited from Glasgow, who specialised in the installation of suspended ceilings.  The architects were Messrs Walker & Pride of St Andrews. 

[7]        The Old Library was a substantial building on several floors.  It incorporated a number of large open areas.  The purpose of the renovation works was essentially 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.  Work began in around the late spring of 1977 and lasted until about 1979. 

[8]        The pursuer claims 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.  He maintains that it was the inhalation of these poisonous substances that caused him to develop peritoneal mesothelioma many years later.  

 

The factual evidence

The pursuer
[9]        The pursuer said that he had been asked, probably by the head of the psychology department Professor Malcolm Jeeves, to assist with the planning and layout of the facilities for the new animal laboratory on the top floor of the building;  this was level E.  This would have been in about September 1976.  According to the pursuer, the reason for his involvement in this aspect of the project was his experience at other universities which had behavioural science laboratories.  The pursuer thought that his first visit to the Old Library would have been in 1976.  At another point in his evidence-in- chief the pursuer said, in answer to a question I asked, that he had been asked by Professor Jeeves to assist with the design and execution of various aspects of the programme; this was because he had carried out similar work in other universities. 

[10]      The pursuer recalled that between about the spring and summer of 1977 he attended meetings on site with the architects and Mr McAlinden, the defenders’ master of works; he thought that such meetings might have taken place on two or three occasions.  As I understood the pursuer’s evidence, these meetings were at the planning stage;  there was no suggestion of asbestos exposure at them. 

[11]      The pursuer said that after work started on the project he visited the Old Library between 12 and 14 times during the construction phase;  these visits lasted between around 30 and 90 minutes each.   

[12]      The pursuer referred to a copy of a plan of the Old Library (6/76 of process) on which he had marked certain parts of the building he visited on level D.  He pointed out that he had to walk up a staircase and along corridors.  He said that he went into cubicles intended to be used as research and teaching spaces and he inspected other rooms, including those which were to become his offices.  The cubicles shown on the plan were formed by the breaking up of what had been large open areas to form smaller spaces.  The pursuer said that during the construction project he would follow various routes which he had marked on the plan.  He would also have gone up to level E by way of a large staircase at the rear of the building.  The pursuer referred to the installation of a mezzanine floor in the arts reading room.  A new lecture theatre was built on the lower level and a new library above it.  The pursuer thought that he would have visited the mezzanine floor three or four times at least and the cubicles on a couple of occasions.  He said that there had been a lot of dust coming through the ceiling in the cubicles from the old air conditioning system.  The pursuer stated that he required to explain to the contractors how the psychology department proposed to use the space.  At other points in his evidence the pursuer said that he remembered his office in the Old Library being dusty;  he described dust coming through a vent in the ceiling.  The pursuer said that the dusty conditions continued until about 1979. 

[13]      The pursuer described two main types of renovation work.  First, large spaces were subdivided into smaller ones by the erection of dividing walls and the installation of necessary services.  Secondly, ceilings were lowered by the creation of suspended ceilings with services installed above them.  The pursuer said that he recalled seeing electricians, plumbers and builders during his visits to the site.  He said that he saw tradesmen hammering and banging;  they were destroying the old features of the building and putting in new ones.  This destruction work involved the old heating and ventilation systems. 

[14]      The pursuer recalled there being cladding;  he thought it was used to insulate the pipes and boilers.  He was not able to say what the cladding was made from.  The men were using heavy hammers to break up the cladding because it was difficult to remove.  He saw this taking place when the workmen were lowering the ceilings in the corridors.  The corridors were about 10 feet wide;  there was just enough room for two persons to pass.  The men were working on stepladders with their heads in the ceiling space.  He would speak to them as he went past. 

[15]      The pursuer thought that the heaviest work had taken place in the latter half of 1977 and into 1978;  this was when there had been the most dust pollution.  He was never given any warning by the University or anyone else not to go into the Old Library.

[16]      The pursuer explained that he had not been exposed to asbestos whilst at Cambridge University.  He had worked on some old ships (including HMS Beagle) in pursuance of his interest in maritime history, but these vessels pre-dated the use of asbestos.  He had a step‑brother who worked in the naval dockyards during the Second World War;  he died of an asbestos-related disease.  The pursuer explained that his step-brother was much older than him;  they had not lived in the same house for long and had never shared a bedroom.  They had not lived under the same roof since the 1950s. 

[17]      In cross-examination, the pursuer accepted that he had continued with his normal teaching and academic duties throughout the construction project.  He said that Professor Jeeves wanted him to help with the design and build of the behavioural science laboratory on level E;  this was because of the pursuer's experience at other universities.  That had been the main focus of the pursuer's involvement in the renovation project.  He said that he had also helped to set up the teaching spaces.  Professor Jeeves had appointed a committee to deal with the fitting out and furnishing of the new department, but the pursuer had not been a member of it.  He accepted that his meetings with the architects would have been at the design stage.  The earliest of those meetings would have been in about September 1976 before work had begun in the Old Library. 

[18]      The pursuer was asked to consider a plan dated May 1974 (7/6/42 of process) showing sections of the Old Library conversion.  This showed a mezzanine floor adjacent to the science reading room.  It also showed other subdivided rooms.  The pursuer said that he would be surprised if the rooms had been subdivided before 1976.  He went on to say that he could not remember seeing the rooms shown as subdivided on the plan before the renovation works started.  Asked further about his meetings with the architects and Mr McAlinden, the pursuer's recollection was notably vague.  At another point in cross-examination the pursuer suggested that the plan on which he had marked the areas he visited (6/76) might be inaccurate because the cubicles shown on it might not, in fact, have been built.  He said this when it was drawn to his attention that the cubicles had been built on a mezzanine floor.  The pursuer suggested that the plan might be half-way between an as-designed and an as-built drawing.  I did not find the pursuer's evidence on these matters easy to follow.

[19]      The pursuer acknowledged that one would normally expect stripping out works to be done in the early stages of the project.  He was shown a programme and progress chart for the project (7/5/1 of process) dated July 1977, which confirmed this.  In particular, the document showed that the stripping out of electrical, heating, lift and plumbing services was scheduled to be done in May 1977;  the stripping out of fitments and ceilings was also planned for that month;  and the demolition of floors on levels C and D/E was due to be done in May 1977.  The pursuer's position, on being shown these entries in the chart, was that he could not accept that the floors had been stripped out completely by the end of May 1977.  It was pointed out to the pursuer that the chart showed that some of the floors on levels C and D were due to have been shuttered and concreted in May and June 1977.  He said that he could not accept that this would have happened by then. 

[20]      The pursuer confirmed that he had no rôle in advising on demolition, engineering or structural matters.  He had not been involved in instructing workmen on demolition or stripping out work or in deciding where flooring should be put down.  He accepted that he would not have been on site on a day to day basis.  He would not have been involved in deciding where suspended ceilings should be installed.  As the pursuer put it, he was an academic, not a member of the works department.  Pressed on the details of when he had visited the Old Library, the pursuer accepted that his first visit after the renovation works had begun was when at least some flooring had been put in.  He thought that the heaviest work would have been done in late 1977 or early 1978;  at that time the men had been working feverishly (as the pursuer put it).  He could not say if he had seen joiners.  He had probably seen electricians.  He had not seen labourers at an early stage.  Later on he saw plasterers.  The pursuer said that on his first visit there had been activities going on;  the site was being prepared for its future development.  

[21]      The pursuer explained that at an appointment on 27 July 2012 at Ninewells Hospital in Dundee, Dr Angela Scott, a consultant medical oncologist, informed him for the first time of the diagnosis of peritoneal mesothelioma.  The pursuer was asked in cross-examination about a reference in Dr Scott's detailed notes where she recorded certain information under the sub‑heading of “social history”.  The notes state that there was no definite history of asbestos exposure, but the pursuer's university work had been in relation to marine biology and he had, therefore, spent a lot of time on ships, which may have had asbestos.  The pursuer did not dispute that he must have provided the information in Dr Scott's notes, although his recollection was that she had not asked him about his asbestos history.  He observed that both he and his wife (who accompanied him at the appointment) had been upset at the time due to having just received the diagnosis that the pursuer had a terminal disease.

[22]      The pursuer was also cross-examined about an application form for industrial injuries disablement benefit, which he signed on 1 August 2012.  The information in the form was completed by a Macmillian lung cancer nurse working with Asbestos Action (Tayside) in Dundee.  In answer to a question as to what type of work the pursuer thought caused his disease the following was filled in on the form: 

“Working in a building where my office had asbestos dust from pipes, ceiling tiles and walls.  I continued to work in the building when it was being refurbished and the asbestos was sealed/removed.  The office I was in was in the basement and used to be in the boiler room.” 

 

[23]      At a later point under the heading “other information” the following appears in the form: 

“As well as being exposed to asbestos dust in St Andrews University buildings, I used to visit several dock yards during my employment with them as a specialist in maritime studies.  I may have been exposed to further asbestos dust during these visits but mainly from 1984 onwards.” 

 

[24]      The pursuer explained that in the 1980s he had again worked in St Katherine's Lodge;  he thought that this must have been the period he had in mind when addressing the section of the form headed "other information". 

[25]      In re-examination, the pursuer was again shown the programme chart for the project.  He agreed that it showed that joinery and stripping out of the roof in level E was due to be done in May, June, July and August 1977.  Demolition of the existing plant room and removal of the open court floor in level E was shown as being planned for July and September 1977.

[26]      I shall come back to deal with my conclusions on the credibility and reliability of the pursuer's evidence later in this opinion.

 

John Reid
[27]      The pursuer led evidence from John Reid, a foreman shop fitter and time-served joiner.  He explained that he had read an article in The Sunday Post newspaper about 18 months ago concerning the case.  On reading the article, Mr Reid thought that he had been involved in the ripping out part of the job in the building referred to in the article.  He had then decided to make contact with the pursuer's solicitors. 

[28]      Mr Reid gave evidence that he remembered having worked in what he said was a large and impressive Victorian building in the centre of St Andrews in about 1978 as a suspended ceiling fixer employed by Dobie‑Johnston Limited.  He did not know the name of the building, but described it as being architecturally attractive with wood carvings.  It had large rectangular windows.  He remembered his daughter as having been about 15 to 18 months old at the time.  She was born on 13 June 1977, meaning that he would have been working on the St Andrews job in the latter half of 1978.  Mr Reid was unable to recognise the front elevation of the Old Library from a plan he was shown in re-examination (7/6/40 of process).  He thought that there was a monument outside and to the left of it. 

[29]      Mr Reid described carrying out renovations on a building which had an old library and animal or science laboratories.  There were a number of floors and he worked on each level.  Entry to the building was through an archway.  Mr Reid said that he would have been engaged in stripping out the building and in lowering ceilings and installing new systems above them.  This work would have been done at an early stage in the project. 

[30]      Mr Reid described ripping out the old ceilings in a lot of rooms and installing suspended ceilings throughout the building.  He said that he and a colleague would have worked from a timber scaffold in order to pull down the ceiling tiles and the metal grid system.  One of the products used was likely to have been Asbestolux ceiling tiles.  Slate asbestos boards would have been used for the purposes of fire proofing above suspended ceilings and near windows.  There would also have been asbestos boarding used to box in cables and for fire proofing in the corners of various rooms.  Mr Reid described there being asbestos boards used as cladding around H section steel beams in the roof.  His recollection was that asbestos products had to be physically removed; to do this the men would have used tools such as claw hammers, saws, and crowbars.  He said that there were asbestos soffits and down stands at the windows and doors. He vaguely remembered a van and skips being used to get rid of the materials that had been stripped out. 

[31]      According to Mr Reid’s recollection, during the stripping out works the dust generated by the works would have been bad.  It would be cleaned up merely by using a brush and shovel.  He said that he would have gone home black at night because of the dust.  He recollected dust being in his throat, in his eyes and all over his body. 

[32]      Mr Reid said that he worked in the basement of the building, in corridors, in the main library and on the upper floors.  He mentioned science laboratories on the second floor.  He described conditions on site as being messy and really bad.  The dust was never properly vacuumed out.  They were working on a price and there was pressure to make progress as rapidly as possible.  They would simply strip out one room and then move on to the next room. 

[33]      Mr Reid said that there was no prohibition against anyone from entering the site while the stripping out work was taking place.  Anyone was able to walk in at any time and people were free to wander where they liked.  He said that he recollected a couple of men in suits being close to where he was working.  They would speak to Mr Reid and his colleague and would be around 10 to 12 feet away from him.  Mr Reid might have been up a ladder at a door when these people would walk through the doorway.  The stripping out and installation of new suspended ceilings continued for a period of about three months.  The purpose was to take the building back to its shell.

[34]      Mr Reid was a confident witness, who appeared keen to assist the court.  He had a good knowledge of suspended ceiling work and of the manner in which asbestos products were handled during such work in the days before modern precautions.  On listening to his evidence, I had the impression that much of what Mr Reid said that he was able to remember on points of detail seemed to be based more on his general recollection derived from extensive experience on numerous construction sites than on specific recall of conditions in the Old Library.  To that extent, I have reservations as to the reliability of his detailed recollection of conditions in the Old Library. 

 

Dr Lloyd Carson
[35]      Dr Carson, the pursuer's wife, was a research student in the psychology department at the University from 1977.  She remembered being a member of a group of students who were taken round the Old Library to see what renovation works were being carried out.  On one occasion Professor Jeeves escorted her round and they visited the arts reading room.  On other occasions she was invited to visit by Dr Brian Rodgers, a member of the academic staff.  He had asked her to become involved in choosing the carpets and fabrics.  Dr Carson said that she was inside the Old Library at a time when the renovation works seemed to be at a fairly elementary stage.  The project had not been completed.  It had the ambience of a building in which quite radical refurbishments were going on.  She did not recall any warnings being given about entering the building.

[36]      Dr Carson gave evidence that one entered the Old Library through an arch.  She described the building as an old Victorian one in the centre of St Andrews.

[37]      I found Dr Carson to be a credible witness;  her recollection of events at the material time was understandably limited, however.  Her evidence was not of assistance in resolving the critical factual issues in the case. 

 

Professor Arthur David Milner
[38]      Professor Milner was called as a witness to fact on behalf of the defenders.  He had been a member of the academic staff in the psychology department at the University in the 1970s.  He remembered (albeit vaguely) the move from St Katherine's Lodge to the Old Library.  He thought that Professor Jeeves had organised the project on fairly democratic lines so that all the academic staff could have some involvement.  All members of the academic staff would have taken part in discussions about the allocation of space in the Old Library.  Professor Milner had been on a committee dealing with furnishings;  they had looked at plans in about 1977.  He thought that he had probably visited the Old Library in about 1979.  He had a vague memory of floor coverings being put down at the time, perhaps in the summer of 1979.  He did not remember seeing work involving the destruction of the building's old features. 

[39]      Professor Milner explained that the pursuer would have had a special interest in the setting up of his research facilities.  That might have involved him visiting the Old Library.  He did not recall there being any prohibition against visits by the academic staff during the stripping out phase of the renovation works.  Professor Milner confirmed that his recall of events at the time was not good.

[40]      Professor Milner was a credible witness, but in view of his limited recollection of events his evidence was of little assistance.

 

Conclusions on the factual evidence
[41]      Miss Grahame accepted (rightly in my view) that in order for the pursuer to establish liability against the defenders it was essential that I should accept the material parts of his evidence as being both credible and reliable.  Otherwise, his claim must fail.  In particular, counsel accepted (again correctly) that 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.  

[42]      Throughout the pursuer's evidence (particularly in cross-examination) I 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.  Whilst the pursuer provided some details in the course of his evidence, he seemed to me often to do so in a vague and hesitant manner.  I also thought that the pursuer was at times striving unsuccessfully to remember what he had said on previous occasions about the events of the 1970s.  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.  That weakness of recall applies to important matters such as the nature and extent of his involvement in the project, when and why he might have visited the building during the renovations and what the conditions during any such visit actually were.  On a number of occasions I thought that the pursuer was not really able to provide an answer to a question asking for his recollection on some point of detail;  despite this, he had a tendency to try to construct a version of what he now thinks must have happened.  In making these findings about the lack of reliability in the pursuer's evidence, I do not intend to imply any criticism of the pursuer's honesty or integrity.  Nor should I be taken as suggesting that the pursuer was seeking deliberately to mislead the court or consciously to give false evidence.  There are many possible explanations for why the pursuer has convinced himself and has come to believe that he was exposed to asbestos dust in the Old Library;  it would be wrong for me to speculate about such matters.  In this connection, I do though agree with the observations of Leggatt J in Gestmin SGPS S.A. v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) at paragraphs 15 to 23.  The process of attempting to remember events in the distant past is an inherently fallible one; it is a process that is highly susceptible to error and inaccuracy.  Our efforts to think back many years to recollect the details of past events are liable to be affected by numerous external influences; involvement in civil litigation can in itself operate as a significant influence.  All remembering of events many years ago involves processes of a reconstructive nature;  these processes are largely unconscious with the result, as Leggat J said, that the strength, vividness and apparent authenticity of memories are often not reliable markers of their truth.  Having seen and heard the pursuer give evidence, I have come to the view that I must evaluate the reliability of his claimed recollections with caution.  I have, wherever possible, tested his evidence against other evidence in the case and have considered objectively where the probabilities lie.  

[43]      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;  decisions about the allocation and use of space by the psychology department would have fallen to be taken at a later stage in the project.  It would have been, as Mr Reid was at pains to stress, a dusty, dirty and unpleasant environment.  More generally, I did not find it convincing that the pursuer claimed to be able to recall so many years later that he had made between 12 and 14 visits to the Old Library;  he was not able to explain why he was now able to be so precise.

[44]      It seemed to me that the pursuer's recollection in his evidence as to what his exact rôle in the project had been was indefinite and varying.  At one point the pursuer appeared to be saying that his main interest lay in the animal laboratory on level E.  Later he seemed to suggest that he had been given more wide-ranging responsibility in relation to design and execution of various aspects of the programme;  but he was not able to be more precise or to explain why he would have been asked to become involved in matters of design and execution extending beyond the animal laboratory.  As the pursuer accepted in cross-examination, he possessed no expertise in or knowledge of construction or engineering matters.  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.  It is understandable that the pursuer would have wished to see his new accommodation and to look round the renovated building, but it is likely that he would have done so after the work of removing asbestos was finished.  In this connection, it is significant that in cross-examination the pursuer accepted that on his first visit to the Old Library during the construction works at least some flooring had been put down.  That points to the stripping out phase having been completed. 

[45]      Particularly during cross-examination the pursuer's recall of matters seemed to me to be uncertain and vague; at times his recollection became difficult to follow.  The plan (7/6/42) and the programme and progress chart (7/5/1) contained details that were difficult to reconcile with the pursuer's recollection;  he did not, to my mind, have a convincing response to either document when asked about them in cross-examination.  His evidence about the cubicles shown on the plan (6/76) was confused. 

[46]      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. 

[47]      With some hesitation, I am willing to accept that John Reid described working in a building that was probably the Old Library.  Beyond that, I do not consider that his evidence lends any material support to the pursuer's account.  As I have already said, I had the impression that Mr Reid's recollections seemed to be based on his general experience of working on suspended ceilings in the 1970s.  I was not convinced that he had reliable memories of the particular conditions at the Old Library.  More importantly, he could not say that the pursuer was ever present when asbestos was being removed from the Old Library.  He did mention men in suits coming on site, but it is more probable that such persons were architects, engineers or from the works department than a member of the academic staff, such as the pursuer.  For what it is worth, I noted that in his evidence the pursuer said that he did not dress smartly when he visited the renovation works. 

[48]      Mr Reid's evidence on timings does not fit with that of the pursuer.  He was quite definite that he had been working in St Andrews at a time when his daughter was between 15 and 18 months old.  That means that he would have been there between about September and December 1978.  According to the pursuer, however, the heavy stripping out work when the dust was at its worst was in late 1977 or early 1978.   

[49]      In evaluating the accuracy of the pursuer's recollection in his evidence, I consider it helpful to examine what he has stated on earlier occasions when asked to address the same issues.  There are two such previous statements.  The first is the information recorded in the Ninewells Hospital Oncology Department records by the pursuer's consultant oncologist, Dr Scott.  It is clear that Dr Scott must have asked the pursuer about his history of asbestos exposure, although in his evidence the pursuer appeared somewhat reluctant to accept that she had done so.  The information which Dr Scott must have obtained from the pursuer is detailed and specific, as one would expect in the case of notes prepared by a consultant oncologist.  She recorded in the notes that there was no definite history of asbestos exposure, but the pursuer's University work had been in relation to marine biology and he had, therefore, spent a lot of time on ships which may have had asbestos.  The pursuer's position in evidence was that he had not been exposed to asbestos on ships.  In my view, the fact that the pursuer made no mention to Dr Scott of any other possible source of exposure to asbestos in the course of his university work casts doubt on his subsequent contention that he was exposed to asbestos in the Old Library.  It is surprising that the pursuer did not even mention this as a possibility to his oncologist when she was questioning him on the matter, particularly as he did specifically refer to a different aspect of his university work. 

[50]      Five days after his consultation with Dr Scott, the pursuer had a further opportunity to provide information about his history of asbestos exposure when he attended Asbestos Action (Tayside) in order to complete an application for industrial injuries disablement benefit.  The information recorded on the application form indicates that the pursuer again gave a specific and detailed account of his history of asbestos exposure.  This time he referred to having been exposed to asbestos dust while working in his office in a building which was being refurbished.  He said that his office was in the basement and used to be in the boiler room.  I note that in his evidence the pursuer said that the two offices he occupied in the Old Library were on level D.  In a different section of the application form there is reference to asbestos exposure in what the pursuer accepted in his evidence was the building known as St Katherine's Lodge.  Mention is also made of possible asbestos exposure at several dockyards.  In my opinion, it is significant that there is no mention anywhere in the form of possible exposure in the Old Library. 

[51]      The inconsistencies between the pursuer's account in his evidence and the two earlier accounts I have just summarised amount, in my view, to further reasons to doubt the reliability of his evidence that he was exposed to asbestos dust during the renovation works in the Old Library.  Given that the pursuer did not remember that he had been exposed to asbestos dust in the Old Library when he was questioned about his history of asbestos exposure by Dr Scott and Tayside Action on Asbestos, it is difficult to understand how he came to be able to remember these matters by the time of the proof.  The pursuer did not offer any explanation for this. 

[52]      Neither the evidence of Dr Carson nor that of Professor Milner lent any support to the allegation that the pursuer was exposed to asbestos during the renovation works in the Old Library.

[53]      I have come to the conclusion that the evidence is not sufficiently reliable to entitle me to find as a fact that the pursuer was exposed to dangerous quantities of asbestos dust during the renovation works in the Old Library.  His action cannot, therefore, succeed.

 

Engineering and medical evidence
[54]      The rest of the evidence given at the proof came from an engineer, Mrs Karen McNeill and from two respiratory physicians, Dr Peter Reid and Dr John Moore-Gillon.  In view of my conclusion that the pursuer has not proved that he was exposed to dangerous levels of asbestos, it is strictly unnecessary for me to deal with the expert engineering and medical evidence, but for the sake of completeness I shall briefly do so.

[55]      Mrs McNeill was called as an expert witness on behalf of the pursuer to provide opinion evidence on what the defenders should have known about the dangers of asbestos by the time of the renovation project at the Old Library and as to the likely level of asbestos dust to which the pursuer would have been exposed. 

[56]      Mrs McNeill holds an honours degree in environmental engineering and a diploma from the National Examination Board in Occupational Safety and Health.  She is a graduate member of the Institution of Occupational Safety and Health.  Mrs McNeill is employed as a senior engineer by Cadogans in Glasgow.  She explained that she had prepared between 40 and 50 expert witness reports in asbestos claims;  she acknowledged that all had been instructed by Messrs Digby Brown on behalf of claimants.  She had not given evidence in court previously. 

[57]      Mrs McNeill explained that, for the purposes of her expert witness work, she has carried out some research into the history of asbestos use and has studied the relevant literature;  it was clear from the evidence she gave at the proof that she has attained a degree of knowledge about these matters.  She said that she had visited sites where asbestos had been used in the 1970s and had spoken to people who were involved in working with it.  She has advised clients about asbestos issues.

[58]      The defenders challenged Mrs McNeill's qualifications as an expert witness for the purposes of providing opinion evidence on the issues to which she spoke in the present case.  I accept that Mrs McNeill is not qualified as an occupational hygienist and that such qualifications as she does hold are not at an advanced level.  Nonetheless, I am prepared to treat her as having sufficient experience and competence to assist the court in respect of the matters she covered in her report and oral evidence.  It is important to note, however, that Mrs McNeill's evidence was subject to significant limitations, to which I will shortly turn. 

[59]      Mrs McNeill spoke to her report (6/67 of process).  She had listened to the evidence given by the pursuer and John Reid at the proof.  Mrs McNeill explained the developing level of knowledge about the dangers of asbestos exposure under reference to a lengthy series of well-known reports and papers from the mid 1920s onwards.  The documents included annual reports by the Chief Inspector of Factories and Workshops starting in the 1930s, scientific papers and articles in newspapers.  In particular, Mrs McNeill gave evidence that, following research by Newhouse and Thomson of the London School of Hygiene and Tropical Medicine published in the British Journal of Industrial Medicine in 1965, it became widely known that secondary or indirect exposure to low levels of asbestos dust could cause mesothelioma.  The Chief Inspector of Factories and Workshops recognised this danger in his annual report in 1967. 

[60]      Mrs McNeill went on to explain that in Technical Data Note 42 (“'TDN 42”) published in 1976 the Health and Safety Executive provided guidance to the construction industry on probable asbestos dust concentrations in construction processes.  The note explained that the concentrations had, in the main, been determined by collecting dust on membrane filters by the use of personal samplers and then evaluating the dust by optical microscopy.  The note stated that the figures it contained should be considered only as a rough guide and that results were inevitably affected by the individual circumstances of each case.  The note gave a series of representative figures for dust concentrations generated by various construction activities, including de-lagging, machine and hand sawing of asbestos sheets and tasks involved in the use of asbestos insulation boards.  The representative figures are expressed in terms of fibres per millilitre of air (fibres/ml).  In TDN 42 they are given in ranges such as 1 to 5 fibres/ml for de-lagging work carried out with thorough soaking;  over 20 fibres/ml for such work if carried out dry; and 5 to 12 fibres/ml in the case of hand sawing asbestos insulation board. 

[61]      In her evidence-in-chief, Mrs McNeill said that, in her opinion, a reasonably prudent employer in the 1970s should have appreciated that there was no known safe level of exposure to asbestos dust and that exposure should, therefore, have been eliminated or at least minimised.  Measurements of airborne dust levels should have been taken to ensure that levels did not exceed the hygiene standards given in Technical Data Note 13(Rev) produced by HM Factory Inspectorate in 1970 and in the Guidance Note published by the Health and Safety Executive in 1976, known as EH10.  In cross-examination, Mrs McNeill accepted that in the late 1970s a reasonably prudent employer should have consulted TDN 42 to see the levels of asbestos dust thought likely to be generated by particular activities.  Having done so, such an employer would then have been in a position to reach a view, having regard to the hygiene standards, as to whether its employees should be permitted to work in the vicinity of particular types of asbestos-related work. 

[62]      Under reference to TDN 42 and similar data contained in Health and Safety Guidance Note 189 (“HSG 189/1”), Mrs McNeill was asked in examination-in-chief to say what, in her opinion, the level of the pursuer's exposure to asbestos dust would have been on the basis of a number of factual hypotheses put to her in evidence.  The hypotheses were intended to reflect various factual scenarios based on differing possible interpretations of the pursuer's evidence.  In addressing the hypotheses, Mrs McNeill explained that because there are no measurements available of the concentrations of asbestos dust which would actually have been in the air at any time during the renovation works at the Old Library, the only approach that she was prepared to take was to estimate the maximum potential levels of exposure by looking at the guidance on concentration levels available at the material time.  It is important to understand that Mrs McNeill accepted that she was not able to express any view (even on a balance of probabilities) as to what the pursuer's actual level of exposure to asbestos dust was likely to have been on any of the factual hypotheses she was asked to consider.  She said that she was only in a position to provide estimates of the potential maximum levels of exposure.  Depending on which of the factual scenarios applied and the particular tasks involved, Mrs McNeill considered that the potential maximum level of the pursuer's exposure would have been between 5 and 20 fibres/ml.  Mrs McNeill was careful to confine her evidence to the potential maximum levels of exposure.  She also made clear that she could not express any opinion as to what the cumulative level of the pursuer's exposure to asbestos would have been on the assumption that his factual evidence was accepted.  She explained that it was not her practice to calculate or attempt to calculate cumulative exposure levels because minimal exposure was, in her view, sufficient to cause harm.

[63]      In that state of the evidence, Miss Grahame was faced with an insurmountable difficulty when she came to make her closing submissions; she was not in a position to identify the factual finding the court should make on the actual level of asbestos dust to which the pursuer had probably been exposed – there was no evidence to allow such a finding to be made.  Miss Grahame submitted that the court should make its own interpretation of the data given in TDN 42 and HSG 189/1 in the light of the descriptions of the renovation works given by the pursuer and John Reid.  She relied on Mrs McNeill's evidence that a prudent employer should have taken measurements of asbestos dust;  there was no suggestion that the defenders had complied with that duty.  Counsel argued that, in the circumstances, it did not lie in the mouth of the defenders now to assert that the levels of asbestos were not in fact excessive (Keefe v The Isle of Man Steam Packet Co Ltd [2010] EWCA Civ 683 per Longmore LJ at paragraphs 18 and 19).  Miss Grahame submitted that based on the data given for the various construction activities in TDN 42 and HSG 189/1, I should hold that the pursuer was exposed to asbestos dust at a level of up to 20 fibres/ml.

[64]      In my opinion, the approach to the evidence proposed by Miss Grahame is misconceived;  I would have rejected it, had it been necessary for me to reach a view on the point.  In order for the pursuer to succeed in establishing negligence against the defenders he must establish, on the balance of probabilities, the actual level of asbestos dust to which he was exposed.  It is essential for the actual level of exposure to be proved because otherwise the court cannot decide whether the exposure was more than de minimis, in which case liability could not arise.  In Sienkiewicz v Greif (UK) Ltd [2011] 2 AC 229 the Supreme Court held that the claimant must prove that the acts or omissions of a particular defendant had materially increased the risk of contracting mesothelioma.  The Supreme Court went on to explain that a material increase in risk means a degree of risk that is more than minimal;  it is for the trial judge to determine, on the facts of each case, whether the increase in risk was material in this sense.  Assuming that the exposure was more than de minimis, the court must address whether, given the level of actual exposure, the defenders ought reasonably to have foreseen that as a result the pursuer was at risk of contracting mesothelioma.  To paraphrase what Aikens LJ said in Williams v University of Birmingham [2012] PIQR P4 at paragraph 41, to determine that question the court has to make findings about (1) the actual level of asbestos fibres to which the pursuer was exposed;  (2) what knowledge the defenders should have had at the time about the risks posed by that level of exposure;  (3) whether, with that knowledge, it should have been reasonably foreseeable to the defenders that such an exposure level was likely to cause asbestos-related injury;  (4) what steps the defenders should have taken in the light of the pursuer's exposure to asbestos;  and (5) whether the defenders negligently failed to take those steps.  It follows from this analysis that the central issue in the present case, had I accepted the pursuer as a reliable witness, would have been the likely level of his actual exposure to asbestos.  Without knowing the actual level of asbestos exposure, it is impossible to reach any view as to what the defenders should have known, what they should have foreseen, what steps they should have taken and whether they were negligent.  Mrs McNeill was clear in her evidence that she was not in a position to say what the pursuer's likely level of exposure to asbestos was; she could only provide an estimate of the potential maximum level of exposure on the basis of different factual scenarios.  In my opinion, it would involve unacceptable speculation for the court to attempt to derive from Mrs McNeill’s evidence about potential maximum exposure levels a factual finding as to the pursuer’s actual level of exposure to asbestos.  In the absence of expert evidence on the point, there is no basis on which the court could do this.  In the circumstances, even if I had accepted the pursuer's factual evidence as being reliable, his case would still have failed. 

[65]      I should add that I do not consider that the case of Keefe v The Isle of Man Steam Packet Co Ltd assists the pursuer.  I accept that where the pursuer has been denied the opportunity to lead evidence due to the defender's negligence, the court may be justified, in some circumstances, in drawing inferences from the totality of the evidence that are more favourable to the pursuer than to the defender;  as Longmore LJ put it, to judge the claimant's evidence benevolently and the defendant's critically.  The present case does not, however, turn on the drawing of inferences that are more or less favourable to one side or the other.  Instead there is simply no evidence on which the court would be entitled to make any finding as to the critical issue of the actual level of the pursuer's exposure to asbestos.  One would normally expect that such evidence would be given by an occupational hygienist or by a suitably qualified engineer, but in the present case it is entirely lacking.  

[66]      That leaves for brief consideration the expert medical evidence.  I begin with the evidence given by Dr Moore-Gillon;  he is an eminent consultant respiratory physician.  He has particular expertise in the aetiology, diagnosis and treatment of asbestos-related diseases, including mesothelioma.  He has given expert evidence in court on many occasions, including in some of the leading cases in recent times.  I found his evidence to be of considerable assistance in understanding the medical issues in the case and I have no difficulty in accepting it. 

[67]      In his evidence Dr Moore‑Gillon convincingly explained the importance of knowing the actual and cumulative levels of exposure to asbestos in order to decide whether exposure in any given case was more than de minimis.  He said that a medical expert could not provide evidence on either of those questions.  Dr Moore-Gillon went on to explain that in the case of mesothelioma, the level of cumulative exposure was the critical issue in determining causation.  There are a number of reasons why it is essential to have information as to cumulative exposure levels.  First, causation of mesothelioma cannot be inferred automatically, simply on the basis that a person has developed a malignant mesothelioma.  This is because there is probably a background rate of mesotheliomas which would have occurred even if asbestos had never been discovered and had never been imported into this country and also because mesothelioma can develop due to the ubiquity of asbestos in the environment or from unrecognised occupational or domestic exposure.  Secondly, Dr Moore-Gillon explained that, except in the case of very high levels of exposure, it was reasonable to suppose that because of the relative rarity of localised peritoneal malignant mesothelioma higher levels of asbestos exposure would be required to cause such a condition than would be required for other types of mesothelioma.  This was probably related to the fact that for any given exposure fewer inhaled fibres would reach the peritoneum and consequently fibre concentration in that part of the human body would be lower than would be the case with pleural mesothelioma.  Thirdly, Dr Moore-Gillon stated that in order to assess whether exposure was more than de minimis it is necessary to have an estimate of the pursuer’s likely cumulative exposure to asbestos;  in the absence of such evidence one can only speculate as to whether there was a material increase in the risk of contracting mesothelioma from any given level of exposure to asbestos.  Finally, Dr Moore‑Gillon explained that once the cumulative level of exposure to asbestos has been estimated, it is possible to assess whether there has been a material increase in risk by having regard to epidemiological studies, particularly the work of two statisticians from the Health and Safety Executive:  John Hodgson and Andrew Darnton.  Their paper entitled The Quantitative Risks of Mesothelioma and Lung Cancer in relation to Asbestos Exposure was published in 2000 in the Annals of Occupational Medicine (44: 565-601).  Dr Moore‑Gillon considered it to be the most helpful metastudy currently available.  Table 11 of the paper contained a summary of quantitative cancer risk levels associated with various cumulative exposure levels.  Dr Moore-Gillon was of the opinion that these findings were in line with everyday clinical experience where peritoneal mesotheliomas were far less common than pleural mesotheliomas for the levels of asbestos exposure most frequently encountered.  He also considered that the table might over-estimate the risk of localised peritoneal mesothelioma.

[68]      Dr Moore-Gillon was asked in cross-examination to consider a number of factual scenarios taken from an expert report prepared on the instructions of the defenders by an occupational hygienist, Andrew Stelling.  Mr Stelling expressed certain views in the relevant section of his report on likely levels of cumulative exposure based on his understanding of the pursuer’s claim.  He was not, however, called to give evidence at the proof.  The defenders objected to the admissibility of evidence from Dr Moore-Gillon based on the scenarios on the ground that Mr Stelling had not testified about them and they were accordingly of no evidential value.  I consider that the objection is sound and must be sustained.  The scenarios have no legitimate evidential status; they have not been explained or tested in evidence.          

[69]      Dr Peter Reid, whom the pursuer called as an expert witness on causation, is a consultant respiratory physician at the Western General Hospital in Edinburgh.  Dr Reid’s view was that a low level of exposure to asbestos would be liable to increase the risk of contracting mesothelioma;  ultimately he appeared to be of the opinion that even environmental exposure increased the risk.  He was not in a position to say to what extent any given level of exposure increased the risk of developing mesothelioma; his view was that for the individual any increase in risk was significant.   In the circumstances of the present case, Dr Reid’s evidence was of little assistance.  He also expressed doubts as to whether the information in table 11 of the Hodgson and Darnton paper was of assistance because of two limitations:  first, there were statistical uncertainties arising from the small number of observed events;  secondly, there were uncertainties arising from assumptions inherent in the use of mathematical models to derive low-level exposure risks from high-level exposure cohorts.

[70]      I need not attempt to resolve the differences in the opinions given by the two medical experts on the utility of table 11 in the Hodgson and Darnton paper.  It is unnecessary to do so because there is no evidence on the basis of which the court could make a finding as to the actual or the cumulative levels of exposure in the pursuer’s case.

 

Decision

[71]      For the reasons set out in the section of this opinion dealing with the factual evidence, I have concluded that the pursuer has failed to prove that he was exposed to dangerous levels of asbestos dust in the Old Library as he avers.  In any event, having failed to establish the actual and cumulative levels of exposure to asbestos fibres, the pursuer’s claim could not have succeeded.  It follows that the defenders must be assoilzied.  I have reserved all questions of expenses.