It was held that the post mortem concluded the deceased’s death was due to malignant pleural mesothelioma. It was the expert’s opinion he had contracted mesothelioma following a history of occupational asbestos exposure. The judge was satisfied that whilst working between 1967 and 1983 at the defendant’s stores, the deceased used no personal protective equipment and therefore contracted mesothelioma.
In the deceased’s witness statement he had referred to the presence of a warehouseman who was overseeing the work. The judge however accepted that the deceased’s statement regarding the warehouseman fell far below the evidence required to establish that the defendant undertook responsibility for the safety of the works being undertaken at the store at that time. The defendant employed specialist independent contractors to carry out the work and the third party to carry out other shop fitting works. There was no documentary evidence before 1976 to indicate that the defendant had in place any procedure for determining the manner in which contractors on site should carry out their works when in contact with asbestos. It was therefore unreasonable to place on him a greater responsibility for contractors or sub- contractors where there was no such policy in place.
The judge noted that the experts agreed that the deceased’s exposure in 1967 would not have exceeded the applicable standard. The judge did not consider that assessed by the standards at the time, that it was reasonably foreseeable that the defendant should have appreciated that the present of asbestos dust was likely to be injurious to the health of other contractors on site, certainly not in the quantities which the experts agree were involved. Williams (on behalf of the Estate and Dependants of Michael Williams, Deceased) v University of Birmingham & Anrs  EWCA Civ 1242 applied.
The extent of the risk which the deceased faced was below the level at which protective respiratory equipment was required, or indeed, recommended at the time. By July 1984, the risks were firmly recognised, leading to the implementation by the defendant of guidance for contractors working at their premises. The judge held that the phrase “ so far as is reasonably practicable” contained in HSE EH 10(1976) did not extend by the standards of the time to requiring protective respiratory equipment and clothing to be used by the deceased, Baker v Quantum Clothing Group Ltd & Others  UKSC 17, 82 per Lord Mance applied. Accordingly, the defendant was not in breach of its common duty of care under s 2(2) of the Occupiers’ Liability Act 1957. The judge held that the claim against the defendant fails on both the exposure to asbestos that the deceased experienced in the Defendant’s York store in 1967, and in the stores subsequently, while inspecting store premises.
The judge found that if he was wrong and the issue as to whether the defendant should be entitled to a contribution or indemnity against the third party, he would have found for the defendant against the third party in Part 20 proceedings, which he would have assessed at 50%. By 1983, he considered the guidance in place was sufficient that it should have percolated through to the third party as contractors, and steps should have been taken to ensure the third parties operatives wore protective personal equipment.
This was a terribly tragic case and one can only sympathise with the effects on the claimant of this awful disease that eventually claimed his life. However, the court could quite rightly only apply the standard of care owed by an occupier towards a lawful visitor that existed at the time of exposure.