Kerr vs Midlothian and Moray Councils – Court of Session – [2023] CSOH 45 – Case Summary

Background

The Court of Session recently ruled on a complex case involving allegations of asbestos exposure leading to mesothelioma. The case centred around Mrs Kerr, a former teacher, who developed peritoneal mesothelioma, a rare form of cancer. The claimants, representing Mrs Kerr, argued that her illness was caused by asbestos exposure during her teaching career.

The Claimants' Argument

The claimants contended that Mrs Kerr's exposure to asbestos, primarily chrysotile, during her employment materially increased her risk of developing mesothelioma. They relied on the Fairchild exception, which allows for liability when an employer's negligence materially increases the risk of a disease, even if it cannot be proven that the exposure directly caused the illness.

The Defendants' Argument

Midlothian and Moray Councils, the defendants, argued that the claimants failed to prove the extent of asbestos exposure, negligence, or that any exposure caused Mrs Kerr's illness. They highlighted the low level of alleged exposure and the rarity of the disease, contending that the Fairchild exception was not applicable.

Evidence and Expert Testimonies

Extensive expert testimony was presented, including evidence from respiratory and oncological specialists. The court examined epidemiological studies and expert opinions on the link between asbestos exposure and peritoneal mesothelioma. The evidence suggested that Mrs Kerr's exposure was likely to be at a very low level, predominantly to chrysotile, which has the lowest potency for causing malignancies.

The Court's Analysis

The court found that Mrs Kerr likely handled asbestos materials during her early teaching years, but the level of exposure was minimal. The court also considered the limitations of epidemiological evidence and the lack of direct evidence linking Mrs Kerr's disease to asbestos exposure.

The Fairchild Exception

The court concluded that the Fairchild exception was not applicable in this case. It was not established that asbestos exposure caused Mrs Kerr's mesothelioma, and the evidence did not demonstrate a material increase in risk. The court noted that the Fairchild exception is typically applied in cases where asbestos exposure is the sole known cause of mesothelioma.

Judgment

The court ruled in favour of the defendants, absolving them of liability. It emphasised the need for claimants to prove a material risk of harm and the limitations of applying the Fairchild exception in cases involving rare diseases with multiple potential causes.

Implications

This ruling highlights the challenges in asbestos-related litigation, particularly in proving causation for rare forms of mesothelioma. It underscores the importance of robust evidence when invoking the Fairchild exception and the complexities involved in cases with low-level asbestos exposure.

Learn More

For more information on medical negligence, see BeCivil's guide to Medical Negligence.