The Court of Session recently delivered a judgement in the case of John Samuel Thacker and Others V North British Steel Group Plc 2018 CS0H 73 which could have far reaching implications for the families of victims of mesothelioma.
Mrs Thacker was employed by North British Steel Group Plc as a Junior and Clerkess for a period between 1966 and 1969. Due to lack of employment records, the actual period the Pursuer was employed was unclear and therefore the court had to rely upon the evidence of her husband, who also had been employed by the Defenders.
Whilst Mrs Thacker was largely office based, it was accepted that she was also in the foundry and dressing shop areas of the Defenders delivering memos. This was, of course, well before the advent of email when internal messaging required to be delivered by hand!
Mr Thacker in his evidence described the atmosphere of the dressing room and foundry as "right dusty" There was no dispute that the processes involved in the foundry were hot and dirty work. The central issues in the case related to the quantities of dust and the extent to which it contained asbestos particles.
After hearing evidence, Lady Wise had no hesitation in finding that Mrs Thacker was exposed to substantial quantities of dust including asbestos dust, on a regular and routine basis, whilst she attended the dressing shops and foundry area. Further, the court found that the Pursuer had likely suffered secondary exposure when at home when coming into contact with her father’s clothes, who had also worked in the Defender’s premises and would return with his boiler suit covered in asbestos dust.
It was also found that it was necessary for the Defender to show what they could and should have done and what practical steps they could have taken to reduce the amount of dust and the exposure to employees such as Mrs Thacker. The Defenders led no evidence to that effect and so, in essence, left it up to the court to reject or accept the Pursuers’ evidence and that of their experts on these critical aspects.
The Pursuers succeeded in their claims in that they were able to convince the court that the processes undertaken by the Defenders created substantial dust to which the Pursuer was regularly and frequently exposed when attending the dressing shop area of the business. It was found that the injury was reasonably foreseeable and the Defenders appeared to do nothing to prevent it.
This is an interesting case in that major issues such as the period of employment and the extent of exposure were largely established with heavy reliance on the oral evidence presented by the Pursuers. The Judge ruled that the Defenders could have taken many steps to prevent exposure to asbestos in the workplace, but did nothing to do so. The First Pursuer, Mr Thacker, was awarded the sum of £205,000 as an individual and the executor of his late wife’s estate.
Given the significant reliance placed on the pursuers’ verbal evidence, it is perhaps a warning shot to Defenders that they cannot afford to sit back and expect the Pursuer to fail to prove their case knowing that very little records exist, not only of the levels of asbestos dust in the atmosphere at the time but even in relatively straightforward matters as to the actual period of employment.
