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PI and Civil Litigation

Law - practice - procedure

Anthony Gold Solicitors , 17 NOV 2014

John Macarthy (1) Nicola McCoy (2) v Marks & Spencer Plc (Defendant) & DH Allan & Sons Ltd (Third Party) [2014] EWHC 3183 (QB)

John Macarthy (1) Nicola McCoy (2) v Marks & Spencer Plc (Defendant) & DH Allan & Sons Ltd (Third Party) [2014] EWHC 3183 (QB)
Negligence – Health & Safety at Work – Asbestos – Breach of Duty of Care- Mesothelioma – Occupier’s Liability – Workplace Exposure Limits

High Court, Queen’s Bench Division
David Pittaway QC
8 October 2014

Summary
The Defendant company was not in breach of it common law duty of care or duty under the Occupier’s Liability Act 1957, s 2(2) to a contractor who had worked on their premises between 1967 and 1990, because the knowledge at the time was not such that it would have been reasonably foreseeable that his exposure to asbestos dust would have been injurious.

Detail
On 17 December 2009, John Heward died aged 61 from mesothelioma attributable to asbestos dust after being diagnosed with mesothelioma in May 2006. The deceased worked for the third party, a family company whose business was shop fitting. The only known exposure to asbestos dust occurred whilst the deceased was working at stores operated by the defendant, Marks & Spencer Plc. The deceased worked for 3 weeks in the summer of 1967 as a joiner at the defendant’s store in York and also between 1967 and 1990 carrying our surveys and inspections at the defendant’s stores. In 1984, the defendant issued guidance regarding working with asbestos which required contractors to wear personal protective equipment, which the deceased followed.

In a detailed witness statement, the deceased had stated that the only place he was aware of coming into contact with asbestos was whilst working on contracts for the defendant.

The court directed that the issues of the defendant’s liability to the deceased and the third party’s liability to the defendant should be tried as preliminary issues. The preliminary issues were as follows:
(i) did the claimant contract mesothelioma?
(ii) was the claimant exposed to asbestos dust during the course of his work at the defendant’s stores? If so:
(iii) did that exposure cause his mesothelioma?
(iv) what was the extent of his asbestos exposure?
(v) was that asbestos exposure negligent and/or in breach of section 2(2) of the Occupiers’ Act Liability 1957?  
(vi) if the claimant succeeds, is the defendant entitled to a contribution or indemnity from the third party in respect of its failure to take precautions against asbestos exposure?

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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 [2011] 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 [2011] 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.

Comment
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.
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