Tuesday, February 9th, 2016

Robert Prescott v The University of St Andrews [2016] CSOH 3

Angela Grahame QC represented the pursuer in this case. Mr Prescott was seeking damages from the defender, his employer at the time, for developing localised peritoneal malignant mesothelioma. It was alleged that he contracted the disease due to asbestos exposure in the course of his employment as a lecturer in the school of psychology and that the exposure occurred when he visited the Old University Library in St Andrews while it was being renovated. The parties agreed quantum at £180,000, inclusive of interest to the date of proof.

The pursuer led extensive factual evidence to support his claim that the asbestos exposure occurred at St Andrews when he was “negligently exposed to dangerous levels of asbestos dust and fibres generated by the building works” at the Old University Library. This exposure took place because he was asked by one of the professors “to help with the design and build of the behavioural science laboratory on level E” of the library.

The pursuer led evidence from a foreman shop fitter and time-served joiner (Mr Reid) who had worked on the library renovations. The witness described the state of the library when it was being stripped out – there was a lot of dust that was not cleaned up properly. Additionally, “there was no prohibition against anyone from entering the site while the stripping out work was taking place.”  Mr Prescott’s wife also gave evidence relating to the renovations, as she was a research student in the psychology department at the University at the time.

Lord Pentland concluded from the factual evidence led that the pursuer’s “recollection of events at the time of the renovation project in the Old Library in the 1970s was unreliable.”  When trying to recall details he seemed “vague and hesitant manner” and on occasion he seemed to be “striving unsuccessfully to remember what he had said on previous occasions about the events of the 1970s.” His Lordship evaluated the evidence given with caution and weighed it against other evidence in order to consider “objectively where the probabilities lie.”

It was considered that “the pursuer was unable to offer any convincing explanation as to why he would have been on the construction site” when the asbestos dust was in the air. There was no practical reason for him to be there and decisions regarding the allocation of space on level E would have taken place at a later date. Lord Pentland expressly noted he did not find it “convincing” that the pursuer was able to recall how many visits he made to the library this many years on.

In terms of the pursuer’s role in the project, his evidence was “indefinite and varying.” The plan and progress chart from the project did not correlate with the pursuer’s recollection and he was unable to give a convincing answer as to why this was the case. Importance was placed on the face that, under cross-examination, the pursuer accepted that on his first visit to the library during the works “at least some flooring had been put down.  That points to the stripping out phase having been completed.” Lord Pentland concluded that, overall, the pursuer’s evidence regarding his possible contact with asbestos dust was sparse.

While Lord Pentland accepted the evidence given by the shop fitter (Mr Reid) involved in the renovations, he concluded that the evidence did not support the pursuer’s account of events. Importantly, “he could not say that the pursuer was ever present when asbestos was being removed from the Old Library.” Mr Reid had given evidence that men in suits were on site, but these were more likely to be architects and engineers. Irrespective of this, Lord Pentland “noted that in his evidence the pursuer said that he did not dress smartly when he visited the renovation works.”

When looking at the accuracy of the pursuer’s evidence, His Lordship looked at previous statements that had been made. Initially, the information collected by the pursuer's consultant oncologist in Dundee noted that Mr Prescott’s university work had been in relation to marine biology and he had spent a lot of time on ships, which may have had asbestos. In his evidence he denied being exposed to asbestos on ships. The Old Library renovations were not even mentioned to his oncologist. Further to this information, he attended Action Asbestos (Tayside) five days after the initial oncology consultation in order to complete an application for “industrial injuries disablement benefit.” Again, there was no mention of the Old Library. The inconsistencies between the pursuer’s evidence and past information led Lord Pentland to doubt the reliability of his evidence.

His Lordship concluded “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.” He therefore felt it was unnecessary to deal with the expert engineering and medical evidence, however it is detailed briefly in his judgement.The defenders were assoilzied and questions of expenses were reserved.

A copy of Lord Pentland's Opinion can be found here.

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