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Neutral Citation Number: [2014] EWHC 3183 (QB)
Case No: HQ12X05171
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: Wednesday 8th
October 2014
Before :
David Pittaway Q.C. (Sitting as a Judge of the High Court)
- - - - - - - - - - - - - - - - - - - - -
Between :
(1) JOHN MACARTHY
(Executor of the Estate of JOHN THORMAN HEWARD, deceased)
(2) NICOLA McCOY
(Executrix of the Estate of CATHERINE HEWARD, Deceased)
Claimant
- and –
Marks & Spencer plc
-and-
D H Allan & Sons Ltd
Third Party
Defendant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr. David Allan QC (instructed by Treanors Solicitors) for the Claimants
Mr. A John Williams (instructed by Plexus Law) for the Defendant
Mr. Charles Feeny (instructed by Berrymans Lace Mawer) for the Third Party
Hearing dates: 4th, 5
th and 6
th June
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this
Judgment and that copies of this version as handed down may be treated as authentic.
.............................
Approved Judgment Macarthy, Mcoy v M&S & D H Allan
David Pittaway Q.C. :-
Introduction
1. This action arises out of the death of Mr John Heward (“the deceased”) on 17th
December 2009. He was 61 years old. He died from mesothelioma attributable to
asbestos dust. He was diagnosed with mesothelioma in May 2006, following
symptoms that began in or about December 2005. He worked for a family company, D
H Allan & Sons Ltd (“the third party”), initially as an employee, then a director, and
latterly as managing director. The third party was under the control of the deceased’s
father until 1981, when the deceased became managing director. The business was
shop fitting. The only known exposure to asbestos dust occurred whilst the deceased
was working at stores operated by Marks & Spencer plc. (“the defendant”).
2. The precise circumstances of when the deceased was exposed to asbestos dust which
led to his mesothelioma are unknown, however, he prepared a detailed witness
statement before he died, which was the only factual witness evidence available at the
hearing.
3. There are two distinct periods of asbestos exposure relied upon, first a period of about
three weeks in the summer of 1967, whilst the deceased worked as a joiner at the
defendant’s store in York, and second, whilst carrying out surveys and inspections at
the defendant’s stores between 1967 and 1990. In 1984 the defendant issued guidance
regarding working with asbestos which required contractors to wear personal
protective equipment, wearing a recommended mask and hooded overall, which the
deceased followed.
4. The order of 17th October 2013 directed that the issue of the defendant’s liability to the
claimant and the third party’s liability to the defendant should to be tried as
preliminary issues. Shortly before the trial the deceased’s wife died and an application
was made to substitute the co-executor of her estate as claimant. No witness statements
were served on behalf of the defendant within the timetable contained in the order for
directions. A subsequent pre-trial application to admit witness statements was
unsuccessful.
Factual Evidence
Approved Judgment Macarthy, Mcoy v M&S & D H Allan
5. The deceased began work for the third party at the age of 16 as a trainee draughtsman,
studying building construction on day release at Charles Trevelyan Technical College
between 1964 and 1970. About 80% of the third party’s work was for the defendant
and he worked exclusively on their contracts, surveying stores, preparing drawings for
shop fronts and internal walls. On at least two occasions he worked at the defendant’s
stores during college summer holidays, one at Newark in 1966 and the other at York,
probably in 1967. He became a director in 1967, continuing to work as a surveyor and
draughtsman. Following various promotions he took over from his father becoming
chairman and managing director in 1981, continuing as senior project manager, until
the company was put into voluntary liquidation in 2006 as a result of him being
diagnosed with mesothelioma.
6. The deceased records in his witness statement that the only place he was aware of
coming into contact with asbestos was whilst working on contracts for the defendant.
He did not work with or near asbestos on any other contracts or in the third party’s
joinery shop. The third party was responsible for maintenance of 13 of the defendant’s
stores in the North-East of England, modernising the stores, replacing internal wall
panels and installing suspended ceilings. The works included fitting asbestolux ceiling
tiles into suspended ceilings on metal frames in small areas; larger areas were installed
by specialist ceiling contractors. Asbestos was used in the defendant’s stores until
about 1975 after which time Supalux tiles were more commonly used. Precautions to
avoid unnecessary exposure to asbestos dust were introduced by the defendant in the
1984.
The York Contract
7. The deceased recalls that he was exposed to asbestos at the store in York in the summer
of 1967. The defendant was extending the first floor sales area into a former stock
area. The third party was contracted to fit internal pegboard wall panels and hardwood
pelmets. His recollection was that a specialist ceiling contractor, Darlington Insulations
Ltd (“Darlington”) installed the asbestolux suspended ceiling. The deceased was
working as a joiner, fixing studwork to brick walls and panelling to pillars and
columns over a period of five to six weeks. For about half that period Darlington was
installing the ceilings, and the metal framework, which was suspended from the
underside of the floor above, and fixing the asbestolux ceiling tiles into the metal
framework with self-tapping screws.
Approved Judgment Macarthy, Mcoy v M&S & D H Allan
8. The ceiling tiles measured four feet by four feet. The tiles were fixed in place by self-
tapping screws, holes drilled through the tiles into the metal frame to countersink the
asbestolux tiles. The electric drills produced a lot of dust. He estimated that there were
at least 16 holes drilled and countersunk on each board producing a great quantity of
dust. His recollection was that about 100 to 125 tiles were used in an area of
approximately 1500 to 2000 sq. ft. Tiles were also cut for the perimeter of the room
and around pillars and columns. The tiles were cut by handsaw and a file or rasp was
used to scribe and shape the tiles where necessary. The asbestos dust, debris and
cuttings would fall onto the floor and be trodden underfoot causing asbestos dust and
fibres to rise into the air.
9. The deceased’s recollection was that the contractors worked on top of each other with
operatives from the tiling company working directly above him, cutting, drilling,
scribing, chamfering and countersinking ceiling tiles. He recollected that the ceiling
contractors wore masks and green hooded overalls. The deceased was exposed to
asbestos dust and fibres without any protection during this period. There was no
mechanical ventilation system to remove the asbestos dust and fibres. At the end of
each day the debris would be swept up causing the dust to rise into the air.
10. The deceased described a warehouseman, employed by the defendant, who had overall
responsibility for safety standards, monitoring fire risks and tripping risks. A
warehouseman would also be the person who contacted the company when repairs
were required. He described the role of the warehouseman in the following terms:
“there would have been a warehouseman overseeing the work at York and any other
major refurbishments at various stores although the person with overall responsibility
for these works would be based in the head office.”
Surveying and Inspection
11. The deceased was involved in overseeing three or four small contracts at any one time,
surveying stores, noting redecoration and minor repairs, lighting alterations required,
and ceiling tiles to be removed and replaced. He looked into the spaces above the
ceiling tiles to see where pipes and cables ran. He stated that there would have been
some exposure to asbestos dust and fibres when the tiles were taken down, although he
would not often be present when this took place. If there was damage to ceiling tiles he
Approved Judgment Macarthy, Mcoy v M&S & D H Allan
would send his operatives to remove the tiles to enable him to gain access to the void.
In order to remove the tiles the operatives would locate the screws with a magnet,
remove the filler with a sharp instrument, to reveal the head of the screw, which would
inevitably cause damage to the asbestos tiles and asbestos dust and fibres would be
released into the air. After the deceased had carried out his inspection the tiles would
be replaced. He described the procedure as continuing up until the defendant
introduced guidance for working with asbestos in 1984.
12. The deceased stated that he did not stay on site for long and he did not wait whilst
ceilings were being taken down or put up. He described himself as “a suit and tie
man”. He carried out surveys and inspections at all 13 stores in the north-east, visiting
each store twice each year, until 1990 when his visits were reduced to once each year,
to determine whether there were any structural defects or maintenance items requiring
immediate action. Until 1984 the defendant did not advise the deceased to take any
precautions against being exposed to asbestos, however, after the guidance was
published he always wore the protective respiratory equipment specified.
13. At some stage in the late 1990s the defendant instructed surveyors, Crossways, to
undertake asbestos surveys of the stores, which were made available, at a cost, to all
contractors submitting quotations for work. It was at that time the deceased said he
became aware that the ceiling voids and other areas within the stores contained
asbestos debris, and that he realised that he had been exposed to asbestos whilst
carrying out surveys and inspections, without wearing personal protective equipment.
He was aware that pipework was lagged with asbestos, which was subject to regular
repairs. He gave as an example the Newcastle store, where the air conditioning system
circulated the air through the plenum ceiling areas contaminated by asbestos from
damaged pipes that were lagged with asbestos.
14. The plenum baffles were made of asbestolux sheets creating a constant circulation of
air into and out of the sales floor. He recollected that on one unspecified occasion he
found that plenum baffles were damaged, plumbers and electricians had knocked holes
through the baffles for pipe and cable access without sealing the holes. His company
was given the job of repairing the baffles using casting plaster and hessian. He
believed that he came into contact with pipes that had been damaged given the
circumstances in which he carried out surveys and inspections. He described
Approved Judgment Macarthy, Mcoy v M&S & D H Allan
clambering around in the confined space of the ceiling void to identify what work was
required to be done. He noticed at the time there was debris in the ceiling voids but did
not know that this was asbestos as referred to in the Crossways surveys.
15. He did not use personal protective equipment until the introduction of the guidance in
1984. He listed 14 stores where he would carry out inspections ranging from six hours
for small stores to two days for large stores. Out of which time he would spend 15 to
45 minutes in the ceiling voids depending on the size of the job and extent of work
required. His company also worked at up to 50 stores across the United Kingdom.
16. The deceased recollects that the defendant introduced guidance for working with
asbestos in 1984 under which specialist contractors would be employed to remove the
tiles. His company was permitted to remove up to six tiles. The third party’s
employees wore hooded disposable suits and dust masks with a flexible strip that
sealed over the nose. When the deceased attended site to inspect the ceiling voids he
would routinely use protective respiratory equipment. There were further changes in
the regulations in 2001with which the third party complied until it stopped working
with asbestos in 2005. The deceased’s recollection was that up until he took over the
running of the company in 1981 it had been his father’s responsibility to issue
warnings regarding asbestos and he did not recall any being given.
Claimant’s Expert Evidence
17. Mr Glendenning, consulting engineer, prepared a report and gave oral evidence on
behalf of the claimant. He had available to him various documents relating to asbestos
guidance prepared for the defendant from 1984 onwards and survey extracts for six
stores in the north-east from 1997 to 2000. His report contained a detailed exposition
of the development of legislation and guidance from 1898. I have not referred to the
history in any detail in this judgment but have drawn attention to those documents,
which, seem to me, to be relevant at the material times.
18. Mr Glendenning drew attention to the Technical Data Note 13 prepared by HM
Factory Inspectorate (March 1970) and the Health and Safety at Work Booklet no. 44
entitled Asbestos: Health Precautions in Industry prepared by the Department of
Employment (December 1970). He places particular reliance upon the HSE Guidance
Note EH10 (1976) which followed the earlier publications: “Asbestos – hygiene
Approved Judgment Macarthy, Mcoy v M&S & D H Allan
standards and measurement of airborne dust concentrations” which stated: “ (a)
Exposure to all forms of asbestos dust should be reduced to the minimum that is
reasonably practical; and (b) in any case, occupational exposure to asbestos dust
should never exceed: for crocidolite – 0.2 fibres/ml when measured over any 10 minute
period; for other types of asbestos – 2 fibres/ml when measurements are averaged over
a 4 hour period, short-term exposure should not exceed 12 fibres/ml when measured
over any 10 minute period.”
19. In 1977 the HSE published an interim statement by the Advisory Committee: Asbestos
– Health Risks and Precautions which stated: “present evidence suggests that dangers
from asbestos in buildings are likely to arise only when products containing asbestos
are damaged, either accidentally or during maintenance or repair, and the asbestos
fibres are released and dispersed in the air. Where friable materials e.g. sprayed
asbestos insulation, have become or could become damaged, they should be either
removed or protected by a suitable coating or covering.”
20. In 1983 the HSE issued a booklet: Working with Asbestos – A Guide for Supervisors
and Safety Representatives which said, at page 10: “Is there a safe level of dust in the
air? No. There is no known safe level of asbestos dust in air, but the lower the
exposure to asbestos dust, the smaller the risk will be. Your employer should keep the
dust levels as low as possible.”
21. In his report Mr Glendenning accepts that the deceased’s exposure to asbestos dust
varied dependent on the type and condition of the asbestos containing material, the
work carried out and the extent of any precautions taken. He further accepts that
without contemporaneous measurements of the quantities of asbestos present in the
deceased’s breathing zone and the variability of the circumstances it is not possible to
offer definitive quantified estimates of his exposure. He set out a table of classification
of asbestos exposure, ranging from background (outdoor) to substantial quantities. He
concludes that work in proximity to others installing asbestolux tiles was variable,
ranging from above background potentially up to and including substantial. He
concludes that inspection of ceiling voids at the defendant’s stores was above
background and unlikely to be greater than small. He consideres that the majority of
the deceased’s exposure was associated with ceiling tiles and, therefore, likely to be
Approved Judgment Macarthy, Mcoy v M&S & D H Allan
amosite asbestos. He may, however, have been exposed to other forms of asbestos
dust, including crocidolite, particularly from lagging materials.
22. The thrust of his report is that the defendant should have been aware of the Asbestos
Research Council’s report on asbestos published in 1967, which he says was published
after widespread publicity in respect of the risk of mesothelioma associated with
exposure to asbestos dust. The code of practice published explicit guidance of which
the defendant should have been aware and taken steps to ensure that precautions were
taken. Mr Glendenning also relies upon advice and guidance developing over the
period when the deceased worked at the defendant’s stores. His view is that
precautions should have been taken to control the risks associated with asbestos dust
exposure in accordance with the standards described in guidance relevant at the time of
exposure.
23. He drew attention to Toxic Substances in Factory Atmospheres (1960) which sets out
generic criteria to be applied for dust exposure, namely, identifying the risk,
attempting to eliminate the dust, adopting processes to enclose the dust or exhaust
ventilation and other measures to minimise the release of the dust, and finally,
providing personal protective equipment, such as respirators and overalls.
24. In the context of asbestos dust, he particularly relies upon the advice in the HSE
Guidance Note EH 10 (1976), that “exposure to all forms of asbestos dust should be
reduced to the minimum that is reasonably practicable”.
25. Asbestolux boards were generally manufactured from amosite, although apparently
one manufacturer used one-third chrysotile to two-thirds amosite. Asbestos containing
materials were widely used to insulate pipework thermally. Crocidolite, amosite and
chrysotile were all used in thermal insulation. The use of asbestos lagging material
declined during the late 1960s and had ended by the mid-1970s. Crocidolite was used
in lagging until 1970 and amosite until the 1970s (particularly in pre-formed sections).
26. There is no suggestion that the deceased was present when asbestos lagging materials
were applied but he may have disturbed such material, or disturbed debris emanating
from such material, when carrying out inspections in ceiling voids. In the absence of
measurement Mr Glendenning did not consider it was possible to quantify the
Approved Judgment Macarthy, Mcoy v M&S & D H Allan
concentration of asbestos present in any particular situation at any particular time.
Where lagging is damaged and where dust previously released is disturbed, asbestos
dust concentration levels are likely to be elevated above background levels.
27. Mr Glendenning comments in his report that some of the activities that the deceased
described at the York store in 1967 would potentially be associated with exposure to
substantial concentrations of asbestos dust, for example, bevelling of ceiling panels,
however, he does not consider that the deceased’s exposure would have exceeded the
maximum limit applied at that time. He also does not consider that his survey work
was likely to have exceeded the occupational hygiene standards that applied at the
time. Nevertheless his view remains that the precautions described in the relevant
guidance should have been taken.
28. Mr Glendenning accepts that the principal responsibility for the deceased’s safety lay
with the third party but the defendant should have set and enforced the standards to be
achieved by others working on their premises. His view is that the defendant `should
have taken action i.e. use of pre-cut material, damping of materials during cutting, use
of vacuums when cleaning. He considers that respiratory protective equipment and
other appropriate personal protective equipment should have been provided from at
least 1976 for any work that would potentially involve disturbance of asbestos and
exposure to asbestos dust such as the deceased’s inspections.
29. He draws attention to the change in policy in 1984 being probably as a result of the
HSE Guidance Note EH10 “Work with asbestos insulating boards”, which was the
first guidance explicitly in relation to AIBs and contains the following “It is the
responsibility of the person in charge of the work to ensure that the precautions are
adequate”, which he describes as confirming good sense and practice. The person in
charge was ultimately the defendant. He also refers to the defendant’s code of practice
for working with asbestos, published in 1985, which states that “this Code of Practice
has been prepared for the safe removal of asbestos on sites under the control of [the
defendant’s] nominated contractors”, which sets out the standards to be achieved.
Defendant’s Expert Evidence
30. Mr Stelling, instructed on behalf of the defendant, records that, whilst the deceased
was working as a joiner during the refurbishment of the York store in 1967, he said
Approved Judgment Macarthy, Mcoy v M&S & D H Allan
that he witnessed the hand sawing, drilling and sweeping up of asbestos insulating
board debris undertaken by others in his vicinity. Mr Stelling did not consider that
such works would have resulted in the deceased experiencing exposures in excess of
the recommended value for asbestos dust of 5mppfc (up to 30 fibres/ml) in place in
1966. No practical guidance was issued at the time by HM Government and the only
recommended guidance was issued by the Asbestos Research Council. Compliance
was not enforced by HM Factory Inspectorate. The Recommended Code for the
Building and Construction Industries was published in April 1967. He records that the
deceased’s evidence was that the Darlington operatives were wearing masks and
overalls whilst carrying out the works which was in accordance with the guidance.
31. Mr Stelling records that the deceased received further sporadic exposures during the
period between 1966 and 1984 whilst undertaking inspections of the defendant’s
premises within contaminated ceiling voids. He was not instructed by the store to take
any precautions until he was provided with a protocol for work with asbestos in 1984.
He refers to two earlier documents emanating from the defendant, a memo from Mr
Colwell dated 10 May 1976, and a reminder of procedures from Mr Osborne dated 24
August 1982, which he says the defendant contends would have been issued to
consultants and contractors at those times, and would have made the third party aware
of the risks of working with asbestos from 1976 onwards. No evidence was adduced
by the defendant to prove this was in fact the case.
32. Mr Stelling considers that the potential for exposure to the deceased was extremely
limited. He identifies the issue as being whether the deceased was likely to have been
exposed to asbestos dust in concentrations above background levels when he disturbed
dust from damaged tiles and pipework insulation during inspections made within
contaminated ceiling voids. Mr Stelling considers that such exposures would have
been sporadic and of low intensity. He estimated that his shift exposures would have
ranged from between 0.01 fibres/ml (8 hour TWA) for a 15 minute inspection up to
0.03 fibres/ml (8 hour TWA) for a 45 minute inspection. He considers that such levels
of exposure are well below the hygiene standards in place at the material time. He
considers that even if he disturbed dust within the voids he would only have received
exposures that were a fraction of the 10 minute hygiene standard for amosite of 12
fibres/ ml in place between 1970 and 1983.
Approved Judgment Macarthy, Mcoy v M&S & D H Allan
33. He is critical of the description given by the deceased as to his means of access to the
ceiling voids which, in the absence of scaffolding boards and secure walkways he
describes as “perilous”. He believes that the inspections were more likely to have taken
place by using hinged access panels in the ceilings and viewing inside the voids by
torch with a stepladder. If this had been the case the exposure would have been
extremely low and less than 0.01 fibres/ml (8 hour TWA).
34. Mr Stelling considers that the deceased should have been aware of high efficiency
vacuum equipment, respirators and personal protective equipment needed to undertake
the removal and disposal of tiles. He does not consider that it is credible that the
deceased was not aware of the widespread use of asbestos in pipework insulation and
ceiling tiles before the 1990s and the potentially hazardous nature of such materials
until following the Crossway survey reports.
35. Mr Stelling refers to the HSE Guidance Note EH 10 - asbestos, hygiene standard and
measurement of asbestos duct concentrations (1976). The limits specified within EH
10 remained unchanged from the 1970 values. HSE GN EH 10 replaced TDN 13
(1970) and advised that exposure to all forms of asbestos dust was required to be
reduced to the minimum level that was reasonably practicable and in any case
occupational exposure to asbestos dust should never exceed the levels, for crocidolite,
of 0.2 fibres/ml when measured over a ten minute period, for other types of asbestos, 2
fibres/ ml when measurements are averaged over a four hour period. Short term
exposure should not exceed 12fibres/ ml when measured over any 10 minute period.
36. In 1983 the HSE GN EH10 was reissued which confirmed the UK control Limits for
asbestos as 0.2 fibres/ml for crocidolite, 0.5 fibres/ ml for amosite and 1 fibre/ ml for
chrysotile. In the recommendations of the Advisory Committee on Asbestos in 1979 it
was recognised that the term hygiene standard implied that it set a level below which
exposure to asbestos was safe whereas a control limit more accurately reflected the
current state of knowledge. Mr Stelling states that the control limit was intended to
represent a realistic level of airborne concentration of asbestos dust above which no
person should be occupationally exposed.
37. Mr Stelling accepts that there was a considerable amount of asbestos insulating board
present in many of the defendant’s stores, which he described from the reading of the
Approved Judgment Macarthy, Mcoy v M&S & D H Allan
survey reports, to be well-managed and in good condition. He agrees with Mr
Glendenning that the deceased’s exposures were unlikely to have exceeded the
"Recommended Value' for respirable dust listed in the Ministry of Labour, Safety
Health and Welfare Booklet - Dust and Fumes in Factory Atmospheres (3rd Ed.,
1966).
38. Mr Stelling considers the work the deceased would have seen at York store as hand
sawing of ceiling tiles, drilling and countersinking of tiles above head height using
electric drills, chamfering of tiles and sweeping up of cutting dust and offcuts. By
reference to guidance he concludes that the deceased’s exposure would have been
lower than the exposure received by the Darlington operatives. He draws attention to
diluting factors, distance, room volume and natural ventilation, and concludes that it is
not possible to produce precise estimate of his shift average exposure, however, his
opinion is that the exposures of a bystander to such activities would have been
considerably below the TLV for asbestos dust of 30 fibres/ml (8 hour TWA) in place
in 1966.
39. Mr Stelling categorises the deceased’s exposure during inspections as being caused (a)
when the third party’s employees removed one or more ceiling tiles for him to make
his inspection and (b) when he was exposed to concentrations of dust inside ceiling
voids caused, due to his disturbance of settled asbestos dust and debris from damaged
materials. He concludes that if it is accepted that the deceased moved around inside the
ceiling voids, the values in the CONSAD table 4-18: “Effect of Peak Exposure Levels
from Maintenance Activities in Buildings: HE1 – Asbestos in Public and Commercial
Buildings of 0.31 fibres/ml (8 hour TWA) during “other work above drop ceilings”
may be relevant if there was asbestos dust and debris on the top surfaces of the ceilings
that he could disturb. He draws attention to the fact that the deceased’s exposures were
considerably shorter than eight hours, lasting between 15 and 45 minutes. Based on the
average value provided by CONSAD he considers that reasonable estimate of the level
of exposure would range from 0.01 fibres/ml (8 hour TWA) during a 15 minute
inspection up to 0.03 fibre/ml (8 hour TWA) for a 45 minute inspection. Such levels
are much lower than the 0.2 fibres/ml hygiene standard for crocidolite and 2.0
fibres/ml hygiene standards for chrysotile and amosite in place at the material time.
Approved Judgment Macarthy, Mcoy v M&S & D H Allan
40. Mr Stelling accepts that by 1966 the development of mesothelioma was known to be
associated with low level exposures to asbestos and was particularly associated with
exposures to crocidolite. The use of other materials containing other forms of asbestos,
such as chrysotile, amosite and fibrous anthophyllite were not considered to be as
hazardous as work involving crocidolite. The occupational exposure limit for asbestos
went through a significant change for asbestos from TLV values of ∼ 30 fibres/ml for
all types of asbestos down to 2 fibre/ml 4 hour TWA) standard for chrysotile, amosite
and fibrous anthophyllite and 0.2 fibres/ml (4 hour TWA) for crocidolite, which were
introduced in 1970 and remained in place until April 1983.
41. He draws attention to the Technical Data Note 13 (March 1970) which was issued by
HM Factory Inspectorate for the purpose of providing guidance on how inspectors
would interpret the expression “dust consisting of or containing asbestos to such an
extent as is liable to cause danger to the health of employed persons”, which stated:
“if the concentration of amosite or chrysotile asbestos over any 10 minute sampling
period was less than 2 fibres/ml, then the inspectorate would not seek to enforce the
requirement for providing personal respiratory protection (regulation 8 nor the
regulation requiring exhaust ventilation regulation 7) of the 1969 asbestos
regulations.”
42. There was no practical guidance issued by HM Government and the only
recommended practices for work with asbestos based products were issued by the
Asbestosis Research Council. The recommended code of practice in 1967
recommended that where there was any risk of inhaling asbestos dust operatives would
wear approved type respirators, dust should be damped down where the nature of the
product permits and floors should be kept free of cutting dust using portable industrial
vacuum or if not available damped down with sawdust before sweeping up.
43. The operatives employed by Darlington would appear to have complied with this
advice. Mr Stelling referred to guidance issued by the DOE in 1970 that small scale
intermittent work where the work involved hand tools was not considered likely to
produce dust at concentrations which were excessive or likely to cause danger to the
health of employed persons. He also draws attention to the fact that he considers the
third party would have used asbestos in their own fabrication activities to which the
Asbestos Regulations 1969 would have applied after May 1970.
Approved Judgment Macarthy, Mcoy v M&S & D H Allan
44. He also considers that in the period between 1966 and 1983 the potential for the
deceased to have been exposed to asbestos during his inspections would have been
extremely limited. He raises a question mark over whether the deceased would have
been able to clamber about within suspended ceiling voids constructed of asbestolux
hung on a framework of supporting wires without safe means of access through there
voids of secure scaffold boards or permanent walkway.
Joint Statement
45. The joint statement from Mr Glendenning and Mr Stelling agrees that the deceased is
likely to have been exposed to asbestos dust during the work he described in his
witness statement, however, the exposures are unlikely to have exceeded the
occupational exposure limits that applied at any time during the exposures. They
disagree about the implications of the deceased’s exposure and the implications of
comparisons to the occupational exposure limits.
46. They are agreed as to the general duties as to preventing substantial quantities of dust,
including asbestos dust, before knowledge of mesothelioma, and after preventing
smaller quantities of asbestos dust. They are agreed as to the guidance, which was
available in 1967, in particular the Asbestos Research Council Recommended Code of
Practice for the handling, working and fixing of Asbestos and Asbestos Cement
products in the Building and Construction Industries. They agree that it was not
enforced by Her Majesty’s Factory Inspectorate.
47. Mr Glendenning considers that in the absence of knowledge of any safe levels of
asbestos dust the defendant as a major employer with considerable resources should
have kept abreast of legislation, guidance and other safety information. Mr Stelling
considers it relevant that before HSE GN EH 10 the defendant had issued a memo that
contractors working with all forms of asbestos including insulating board should be
undertaken whilst wearing suitable ori-nasal respiratory masks, which was reiterated in
1982.
48. The experts are disagreed as to the extent of bevelling or chamfering which would
have been undertaken on site, however, they are agreed that the deceased’s exposure
during the work he undertook at the York store was unlikely to have exceeded the
Approved Judgment Macarthy, Mcoy v M&S & D H Allan
TLV for asbestos in place at the time, 5 mppcf equivalent to 30 fibre/ml. They are
disagreed on the issues relating to the conversion of measurements, which is not of
relevance to the issues in this case.
49. They are agreed that if the Darlington operatives wore dust masks and green hooded
overalls, then it is likely they were aware that exposure to asbestos dust was hazardous.
They are agreed that no specific warnings were given to bystanders in the Asbestos
Research Council guidance in 1967 and the introduction states: “while care should
always be exercised, special precautions are only necessary when there is a possibility
that operatives inhale asbestos dust as a result of proximity to cutting, grinding or
similar operations”. They are agreed that it is unclear whether all the precautions
recommended were undertaken by Darlington.
50. They are agreed that the deceased as a director of the third party should have been
aware of risks associated with asbestos in order to ensure that employees of the family
were not placed at a risk of injury. Mr Glendenning agrees that the firm should have
been aware of and acted in accordance with the relevant legislation and practice and
complied with any standards set by the defendant. They are agreed that the third party
was employed to install asbestos insulating board in the defendant’s stores prior to
1975 when the board was replaced by Supalux and also to remove asbestos boards
before July 1984.
51. Mr Stelling considers that it is unlikely that during the inspections of the ceiling voids
the deceased’s exposure would have exceeded the threshold limit value, asbestos
standards, hygiene or control standards between 1966 and 1984. Mr Glendenning
refers to EH 10 in December 1976, which refers to “exposure to all forms of asbestos
dust should be reduced to the minimum reasonably practicable.” Mr Stelling considers
that guidance was provided by the defendant to that effect.
52. They are agreed that the guidance in HSE Guidance Note EH10 (1976) should have
been complied with to reduce exposure of anyone likely to have been exposed to the
lowest level reasonably practicable. Occupational exposure to asbestos should not
exceed two fibres/ml over a four hour period or 12 fibres/ml over a 10 minute period.
The guidance provided for an approved respirator where the process involved
crocidolite unless below 0.2 fibres/ml over 10 minute sampling period. Up to 1984
Approved Judgment Macarthy, Mcoy v M&S & D H Allan
wearing of respiratory protective equipment was not advised where the exposure did
not exceed the control limit. Reference is made by Mr Stelling to Mr Luxon’s paper
Threshold Limit Values for Environmental Monitoring in Hazard Assessment and
Control (1973) that where the TVL is not exceeded then the employers “legal and
moral obligation can be said to have been fulfilled”. Similar reference is found in the
Control of Asbestos at Work Regulations 1987, Regulation 14, which refers again
to“the purpose of designating areas as respirator zones is to ensure that respiratory
protective equipment is worn whenever the control limits are liable to be exceeded.”
53. Mr Stelling states that the ceiling voids would not have been asbestos areas or
respirator zones as the deceased would not have been exposed to significant
concentrations of asbestos or concentrations which would have exceeded the control
limits. The term as low as reasonably practicable is not absolute and should be viewed
relative to the knowledge of the time. The deceased’s exposure would not have been at
a level likely to have caused injury by the standards of the day.
54. Mr Glendenning considers that where reasonably practicable reductions in exposure
could be made to exposure that was below the numerical standard, then such action
would be appropriate. It is agreed that the deceased’s exposure was likely to have
been below the control limits but it remains a possibility that the actual exposure was
above those levels. Reasonably practicable involves balancing the benefits of action
against the costs of such action. The provision of respiratory equipment should be
based on a worst case position.
55. Mr Glendenning draws attention to the defendant’s memo in 1976, which did not list
the third party, and does not refer to all the relevant guidance which should have
resulted in 1984 standard that “all operatives working with asbestos or within ceiling
voids must wear full personal protective equipment as itemized in section 4 [of that
document]” being adopted earlier. Mr Stelling does not consider that the work
undertaken would have given rise to dangerous level of airborne asbestos dust as
understood at the time and that the measures described by Mr Glendenning would be
without precedent within guidance issued at the time for the undertaking of inspections
by the deceased.
Approved Judgment Macarthy, Mcoy v M&S & D H Allan
56. Mr Stelling does not consider that the deceased would have experienced exposure at
the York store in excess of the recommended limit for asbestos of 5 mppcf (8 hour
TWA) that applied at the time, which was equivalent to a fibre concentration of 30
fibres/ml (8 hour TWA). Mr Glendenning agrees that the deceased’s exposure is
unlikely to have been in excess of the maximum permissible limit (TVL) specified in
Toxic Substances in Factory Atmospheres (1960) are referred to by Mr Stelling.
57. Mr Stelling does consider that the deceased’s exposure during inspections would have
been sporadic and of low intensity with shift exposures of in the order of 0.01 to 0.03
fibres/ml (8 hour TWA) which were lower than the hygiene standards in place at the
time. Mr Glendenning agrees that the exposure is unlikely to have been above 2.0
fibres/ml (although such exposures would be a possibility) and that Mr Stelling’s 8
hour TWA estimates are reasonable. But he believes that the exposure was both
significant and hazardous.
58. They are agreed that it is unlikely that the deceased would have been able to climb into
a void above a suspended ceiling, however, there were situations where entry was
required to more substantial ceiling voids where specific advice was issued by the
store and in the deceased’s witness statement where he refers to plenum ceiling baffles
at the Newcastle store.
Law
59. In Williams (on behalf of the Estate and Dependants of Michael Williams, Deceased
v University of Birmingham & Anr [2011] EWCA Civ 1242, Aikens LJ summarised
the legal principles to be applied where a claimant alleges that the defendant is liable
in negligence at common law for the consequences of a victim contracting
mesothelioma, in particular questions relating to foreseeability.
60. At para 27 he said: “The courts have recognised that these characteristics of
mesothelioma and the state of medical knowledge (or lack of it) about its aetiology
produce special
legal problems concerning proof of causation. In Fairchild v Glenhaven Funeral
Services Ltd. (“Fairchild”) the House of Lords had to grapple with three cases where
the claimants had been employed in jobs where they had been exposed to asbestos
Approved Judgment Macarthy, Mcoy v M&S & D H Allan
dust. The claimants had contracted mesothelioma as a result of inhaling asbestos dust
at some stage during the course of their
employments. The claimants could demonstrate that their employers owed them a duty
of care and that they had negligently breached that duty by exposing them to asbestos
dust and so the consequent risk of contracting mesothelioma. But the claimants’
problem was that they could not identify, even on a balance of probabilities, the
asbestos fibres which initiated the
genetic process which culminated in the malignant tumour. Therefore the claimants
could not demonstrate that “but for” the breach of duty of any one particular
employer, that claimant would probably not have contracted mesothelioma. Therefore
at first instance and on appeal, each of the claimants failed because they could not
prove a particular employer’s breach
of duty caused the mesothelioma which the claimants had contracted. Accordingly, as
Lord Bingham put it at [2] of his speech: “The crucial issue on appeal is whether, in
the special circumstances of such a case, principle, authority or policy requires or
justifies a modified approach to proof of causation”.
28. The House of Lords’ decision in Fairchild was therefore about proof of causation
in mesothelioma cases where there was more than one defendant who was said to be
in breach of duty and the claimant could not succeed against any one employer using
the traditional “but for” test of causation. The House of Lords held that because of
what Lord Bingham described at [7] as “the rock of uncertainty” created by medical
science’s inability to pinpoint the crucial link between fibres inhaled and the gestation
of the genetic process leading to the disease, for mesothelioma cases and in certain
well-defined circumstances it was necessary to modify English law’s general
causation rule.21 Following the subsequent House of Lords decision in Barker v
Corus UK Ltd,22 and Parliament’s intervention to overturn the effect of that decision
by enacting section 3 of the 2006 Act, the state of the law, before the Supreme Court
dealt with the specific issues raised in S v G, was summarised by Lord Phillips of
Worth Matravers at [1] of his judgment in that case. He stated: “..when a victim
contracts mesothelioma each person who has, in breach of duty, been responsible for
exposing the victim to a significant quantity of asbestos dust and thus creating a
“material increase in risk” of the victim contracting the disease will be held to be
jointly and severally liable for causing the disease”.
Approved Judgment Macarthy, Mcoy v M&S & D H Allan
61. At para 44, on the issue of foreseeability, he said: “But assuming that the exposure
was more than de minimis, it was in my view, necessary to ask a further question. That
is whether, given the degree of actual exposure, it ought to have reasonably
foreseeable to the University (with the knowledge a reasonable University should have
had in 1974) that as result Mr Williams would be likely to be exposed to the risk of
personal injury in the form of contracting mesothelioma. To determine that question, it
seems to me that the judge had to make findings about (1) the actual level of exposure
to asbestos fibres to which Mr Williams was exposed; (2) what knowledge the
university ought to have had in 1974 about the risks posed by that degree of exposure
to asbestos fibres; (3) whether, with that knowledge, it was (or should have been)
reasonably foreseeable to the University that, with that level of exposure, Mr Williams
was likely to be exposed to asbestos related injury; (4) the reasonable steps that the
University ought to have taken in the light of the exposure to asbestos fibres to which
Mr Williams was exposed in fact; and (5) whether the university negligently failed to
take the necessary reasonable steps.”
Submissions
62. Mr Allan, on behalf of the claimant, concedes that in relation to the deceased’s work in
1967 the provisions of the Occupiers Liability Act 1957 are not engaged because the
work involved was an “activity duty”, Fairchild v Glenhaven Funeral Services Ltd.
[2002] 1 WLR 1052, paras 109 to 154. The issue of causation in that case was the
subject of an appeal to the House of Lords but permission to appeal was refused in
relation to the application of the Act. The Court of Appeal held that the provisions of
section 2 (1) of the Act are aimed at “occupancy duties” rather than “activity duties”.
The “occupancy duties”, deriving from the common law liability of an occupier before
the Act, relate to the static condition of the premises, Dunster v Abbott [1954] 1 WLR
58, 62 per Denning LJ.
63. Mr Allan relies upon the presence of the defendant’s warehouseman being in overall
charge of the premises and in particular the area where work was being undertaken. It
is alleged that the defendant’s employee had a responsibility for safety where the work
of the Darlington operatives was generating asbestos dust in circumstances where the
operatives were using respiratory protective equipment at the same time that the
deceased was working underneath the installation of the ceiling tiles. In essence, Mr
Approved Judgment Macarthy, Mcoy v M&S & D H Allan
Allan submits that there was duty on the defendant to organise the work in such a way
that the deceased was not exposed to asbestos dust.
64. Mr Allan submits that the deceased’s work of inspecting and surveying ceiling voids at
the defendant’s stores gave rise to an occupancy duty under the Occupiers Liability
Act 1957. He submits that at the relevant time the defendant was aware that within
confined areas there were extensive asbestos materials at a time when it was aware of
the health risks posed by asbestos, which ultimately gave rise to its guidance in 1984
that any operative working in the ceiling voids was required to wear approved
respiratory equipment and clothing.
65. In his closing submissions Mr Allan indicated that he no longer placed reliance on the
Asbestos Regulations 1969, which were made under the Factories Act 1961. He
accepted that the defendant’s stores were premises to which the Offices, Shops &
Railway Premises Act 1963 applied and were not a factory.
66. Mr Williams, on behalf of the defendant, agrees that the deceased’s exposure to
asbestos at the York store in 1967 falls outside the scope of the Occupiers Liability
Act 1957 because the activities of Darlington fall within “activity duties” as opposed to
“occupancy duties”. He submits that, in any event, the exposure did not give rise to a
foreseeable risk of injury, as judged by the standards of the day, Williams (on behalf
of the Estate and Dependants of Michael Williams, Deceased) v University of
Birmingham & Anr [2011] EWCA Civ 1242,. He relies upon the fact that the
defendant had entrusted the work to competent independent specialist contractors. He
submits that the deceased’s evidence falls far short of proving that the defendant’s
warehouseman was responsible for controlling the manner in which Darlington
Insulation carried out their work as specialist contractors. He also relies upon Biffa
Ltd. v Macheinenfabrik GmbH [2009] QB 725 at paras 55-58 as authority for the
proposition that the appointment of a clerk of works does not amount to an assumption
of responsibility such as to impose a duty of care on the building owner.
67. Mr Williams submits that the deceased’s exposure to asbestos when inspecting stores
was substantially below the applicable hygiene standard or control limits. He submits
that the central question is whether the defendant, as an occupier of the premises, was
required to provide guidance to contractors on working in the vicinity of asbestos
Approved Judgment Macarthy, Mcoy v M&S & D H Allan
when accessing ceiling voids before 1984, before it was required by statute to do so.
He places significance on the fact that the work the deceased was undertaking was to
inspect and survey and, if necessary, identify maintenance that would be carried out by
other operatives.
68. The basis of the defendant’s claim against the third party in the Part 20 proceedings is
that the third party ought to have known that (1) inhalation of asbestos dust and fibre
were potentially dangerous, (2) the deceased could and should have been protected
against inhalation of asbestos dust and fibre and (3) not to have protected or prevented
him from inhaling asbestos dust gave rise to a foreseeable risk of causing an asbestos
induced illness.
69. Mr Feeny, on behalf of the third party, submits that there is no evidence that the third
party was involved with asbestos containing materials to any significant extent in or
about 1967 or that specific issues regarding asbestos or guidance had been made
available to it. He relies upon dicta in Stokes v Guest Keen and Nettlefold (Bolts and
Nuts) Ltd. [1968] 1 WLR 1776, 1783 and Thompson v Smith Shiprepairers (North
Shields) Ltd. [1984] QB 405, 415 to caution against applying too rigorous standard to
the conduct of the reasonably prudent employer. On the question of inspections he
refers to the HSE Guidance Note EH10 (1976) and submits that reduction to a level
that is reasonably practicable involves computation of risk, which requires the
preliminary identification of risk before reasonable practicability arises, Shell Tankers
(UK) Limited v Jeromson and Dawson [2001] PIQR 19, 35 per Hale LJ. He submits
that the defendant in identifying risk from the inspections in 1984 was doing so in a
way that was contemporaneous with developing standards and knowledge.
70. Mr Feeny’s more fundamental submission is that the deceased’s position as a director
of the third party extinguishes the right of the defendant to make a claim against the
third party in Part 20 proceedings., Brunder v Motornet Service and Repairs Ltd.
[2013] 1 WLR 2783. In that case, involving a sole director, the Court of Appeal held
that where a director had failed in his duties to the company in permitting the company
to be in breach of statutory duty, the court was entitled to dismiss the claim on the
basis that the relevant injury had been caused by the claimant’s sole fault.
Discussion
Approved Judgment Macarthy, Mcoy v M&S & D H Allan
71. The issues to be determined are : -
(i) did the claimant contract mesothelioma?
(ii) was the claimant exposed to asbestos dust during the course of his work at the
defendant 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 Liability Act 1957? In particular, did the claimant's asbestos
exposure from the defendant give rise to a foreseeable risk of injury having
regard to the state of knowledge at the times of his work at the premises.
(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?
72. The starting point is whether the deceased contracted mesothelioma. The post mortem
report from Dr Kirkham, consultant histopathologist concluded that the deceased’s
death was due to malignant pleural mesothelioma. He found low counts of asbestos
fibres in the lung tissue. It was his opinion that he had contracted mesothelioma
following a history of occupational asbestos exposure. Dr Rudd, consultant chest
physician, in his reports agrees with this opinion. I am satisfied that the deceased’s
mesothelioma was caused by exposure to asbestos in an occupational setting.
73. The deceased’s witness statement records that he did not come into contact with
asbestos at any other premises where the third party was working throughout his
career. During the course of the trial reference was made to work he had undertaken in
the joinery shop of the third party involving asbestos. There is no evidence that this
was the case. There is also no evidence that he was in contact with asbestos whilst the
third party was carrying out works for other large contractors in the North-East of
England.
74. There are two sets of circumstances where the deceased believed that he came into
contact with asbestolux ceiling tiles. Except where I have said otherwise I accept the
evidence set out in the deceased’s witness statement but am mindful in doing so that
there has been no opportunity to test the evidence in cross-examination.
Approved Judgment Macarthy, Mcoy v M&S & D H Allan
75. The first set of circumstances is whilst working in the York store in the summer of
1967 for a period of six or seven weeks, whilst working as a joiner, where installation
of asbestolux ceiling tiles was being carried out by Darlington over a period of about
three weeks. The deceased was working directly beneath the tiles as they were being
installed. The work would have involved a degree of bevelling and chamfering, at least
to fit tiles around pillars and other fixed structures in the building, as well as the
countersinking of screws into the tiles to attach them to the structure. No details are
provided as to what measures Darlington took to collect asbestos dust that collected on
the floor, however, Darlington’s operatives were provided with protective respiratory
equipment and clothing. The deceased was not provided with any protection.
76. The second is whilst carrying out surveys and inspections of ceiling voids between
1967 and 1983 at the defendant’s stores. He describes a routine of clambering within
ceiling voids, checking for maintenance required on tiles and pipework lagged with
asbestos. Although he describes himself as a “suit and tie man” he regularly carried
out these type of inspections at about 14 stores, primarily in the North-East. He used
no personal protective equipment until 1984 when the defendant introduced procedures
for those contractors who came into contact with asbestos. The defendant had used
asbestos ceiling tiles until 1975 when they changed to a non-asbestos product,
Supalux. After 1984 the defendant was under a duty to put in place procedures for
contractors who were likely to come into contact with matters injurious to their health.
77. I am satisfied that asbestos was used extensively in the defendant’s stores, particularly
as ceiling tiles, probably amosite but there may also have been incidence of
crocidolite. Other asbestos containing materials was evidently also used, including
asbestos lagging materials to pipework (in at least two stores where the deceased
worked on the basis of the available survey records).
78. I am satisfied that the defendant contracted mesothelioma whilst he was carrying out
work for the third party at the defendant’s stores sometime between 1967 and 1984,
when he began to wear protective respiratory equipment and clothing.
79. The issues that I have to decide is whether the defendant was in breach of the common
law duty of care owed to the deceased, whilst he was working at the York store in
Approved Judgment Macarthy, Mcoy v M&S & D H Allan
1967, or subsequently in breach of section 2 (1) of the Occupiers Liability Act 1957.
whilst he was inspecting the ceiling voids at their premises.
80. Section 2 of the Occupiers Liability Act 1957 provides:
“(1)An occupier of premises owes the same duty, the “common duty of care”, to all
his visitors, except in so far as he is free to and does extend, restrict, modify or
exclude his duty to any visitor or visitors by agreement or otherwise.
(2)The common duty of care is a duty to take such care as in all the circumstances of
the case is reasonable to see that the visitor will be reasonably safe in using the
premises for the purposes for which he is invited or permitted by the occupier to be
there.”
81. As I have said the significance of the difference between the causes of action lies in the
distinction between “activity duties”, which are not covered by the Act and
“occupancy duties”, which are covered. Mr Allan concedes that the work undertaken at
the York store in 1967 was an activity duty, therefore, he relies upon a common law
duty of care, namely the presence of a warehouseman referred to in the deceased’s
witness statement as “overseeing the work”.
82. I accept Mr Williams’ submission that the deceased’s statement regarding the
warehouseman falls 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. There is an insufficient factual basis upon which I could properly conclude
that the defendant exercised control over the safety of the works being undertaken at
the store. The defendant employed specialist independent contractors to carry out the
installation of the ceiling tiles and the third party to carry out other shop fitting works.
There is no evidence of who co-ordinated the works or of any supervisory functions.
83. No factual evidence was served by the defendant that may have explained the role of
the warehouseman. There is no documentary evidence, however, 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
seems to me that the role of the warehouseman would probably only become relevant
Approved Judgment Macarthy, Mcoy v M&S & D H Allan
where there was an issue as to whether he should have enforced procedures that had
been laid down by his employers. It would, in any event, be unreasonable to place on
him a greater responsibility to initiate procedures for contractors or sub-contractors
where there was no such policy in place.
84. In any event the state of knowledge that existed at the material time, both in 1967 and
subsequently before 1984, and the level of exposure that the deceased was likely to
have experienced are of particular significance to the facts of this case. The allegation
is made that the deceased contracted mesothelioma, not whilst working with asbestos,
but by being in close proximity to where that work was being undertaken, sometimes
described as a “bystander”, or subsequently whilst carrying out inspections of ceiling
voids.
85. After careful consideration, I have accepted Mr Stelling’s evidence where it differs
from that of Mr Glendenning. Whilst I am satisfied that both experts were seeking to
assist the court, I have concluded that Mr Glendenning is applying an unrealistic
standard to either the circumstances in which the deceased was carrying out his work
at the York store in 1967, or considering the nature of his work, when he was
subsequently carrying out inspections.
86. The experts are agreed that the deceased’s exposure in 1967 would not have exceeded
30 fibres/ml (8 hour TWA), which was the applicable standard. There was a
developing awareness of the dangers of working with asbestos throughout the last
century, which became clearer during the 1960s, however, much of the work had been
undertaken by the Asbestos Research Council. There was clearly a widely held view
at the time that there were levels of asbestos dust described in hygiene or later control
standards below which additional precautions were not required, e.g. HM Factory
Inspectorate’s Technical Data Note 13 (March 1970) which stated: “if the
concentration of amosite or chrysotile asbestos over any 10 minute sampling period
was less than 2 fibres/ml, then the inspectorate would not seek to enforce the
requirement for providing personal respiratory protection (regulation 8 nor the
regulation requiring exhaust ventilation regulation 7) of the 1969 asbestos
regulations” or Mr Luxon’s paper Threshold Limit Values for Environmental
Monitoring in Hazard Assessment and Control (1973) that where the TVL is not
Approved Judgment Macarthy, Mcoy v M&S & D H Allan
exceeded then the employers “legal and moral obligation can be said to have been
fulfilled”.
87. The interpretation of the phrase “as far as is reasonably practicable” is a key indicator
to the issues in this case. It involved a balancing exercise according to current
standards at the time, Baker v Quantum Clothing Group Ltd. & Others [2011 UKSC]
17, 65 82 per Lord Mance.
88. The deceased was carrying out his work at the York store in 1967 after the publication
of the guidance document prepared by the Asbestos Research Council in April 1967. It
is reasonable to assume that the specialist contractors, Darlington, were aware of the
guidance contained in that document, or at least the principles underpinning it, when
their operatives were wearing protective respiratory equipment and clothing during the
course of the installation. It seems to me that a distinction should be drawn between
the specialist independent contractors who were carrying out the insulation,
Darlington, and the defendant, as to identifying the risks inherent in working with
asbestos. The defendant employed Darlington as specialist contractors to undertake the
installation of ceiling tiles. Darlington was clearly aware of the risks that working with
asbestos presented their employees, by providing protective respiratory equipment and
clothing and, perhaps taking other safety measures including measures for collecting
asbestos dust.
89. I am satisfied that no written warnings or guidance were provided to the deceased or
third party by the defendant before 1984. The previous documentation in 1976 and
1982 contained circulation lists on which the third party’s name was not included. It
follows that I consider that it was probably not until 1976 the defendant had
knowledge that specialist contractors working in confined spaces with asbestos, as
opposed to accessing confined spaces, should wear approved respiratory protective
equipment and protective clothing.
90. I do not consider that, assessed by the standards of the time, that it was reasonably
foreseeable that the defendant should have appreciated that the presence of asbestos
dust was likely to be injurious to the health of other contractors on site, who came into
contact with asbestos dust, certainly not in the quantities, which the experts are agreed
were involved, Williams (on behalf of the Estate and Dependants of Michael
Approved Judgment Macarthy, Mcoy v M&S & D H Allan
Williams, Deceased v University of Birmingham & Anr [2011] EWCA Civ 1242
applied.
91. The extent of the risk that the deceased faced where his probable exposure did not
exceed of 30 fibres/ml (8 hour TWA) was below the level at which protective
respiratory equipment was required, or indeed, recommended at the time.
92. I accept the deceased’s evidence that he did not become aware of the content of the
guidance until 1984 when he began to wear protective respiratory equipment and
clothing. Mr Williams submits that the content of the deceased’s witness statement
should not be taken at face value and that it is inconceivable that he was unaware of
the risks of working with asbestos in the period up to 1984. Whilst I agree that there
was no opportunity for the deceased’s evidence to be tested on this issue, I accept that
the deceased was probably unaware of the potential risk of contamination from
asbestos dust whilst surveying and inspecting voids at the defendant’s stores until in or
about 1984, albeit there is force in the submission that he may have been aware more
generally of the risks associated with asbestos before that time, as I have set out below.
93. As I have previously said there was a continuing development of knowledge of the
risks of working with asbestos throughout the 1960s and 1970s, and beyond, which
covered the period in which the deceased was carrying out inspections at the
defendant’s stores. By July 1984 the risks were firmly recognised, leading to the
implementation by the defendant of guidance for contractors working at the premises.
The guidance referred to the new HSE control limits and the Environmental Health
Department setting out that: “the view of the local authorities is that they do not want
any asbestos fibre in the air. They have adopted a limit of 0.01 f/ml for places where
the general public have access.” By May 1985 the defendant had issued a code of
practice which referred specifically to working in ceiling voids which contained the
provision that “whenever operatives are employed working within ceiling voids they
are to wear personal protective equipment.” The earlier guidance had been largely
concerned with the removal of tiles.
94. The experts are agreed that the levels of asbestos dust that the deceased would have
been exposed to, whilst surveying and inspecting the ceiling voids, would have been
less than the hygiene or control limit in force at the relevant times. Again I have
Approved Judgment Macarthy, Mcoy v M&S & D H Allan
concluded 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 whilst the deceased was carrying out
inspections, Baker v Quantum Clothing Group Ltd. & Others [2011 UKSC] 17, 82
per Lord Mance applied. Accordingly, I do not consider that the defendant was in
breach of its common duty of care under section 2(2) of the Occupiers Liability Act
1957 “to take such care as in all the circumstances of the case is reasonable to see
that the visitor will be reasonably safe” in the circumstances that prevailed at the time.
95. The extent of the risk that the deceased faced where his probable exposure did not
exceed exposures of in the order of 0.01 to 0.03 fibres/ml (8 hour TWA) was below the
level at which protective respiratory equipment was required, or indeed, recommended
at the time. The guidance in HSE GN 10 (1976), having set out the control limits,
refers to the use of a respirator in relation to crocidolite “unless the concentration in
the breathing zone of a worker in a crocidolite process can be maintained below 0.2
fibres/ml when measured over any 10-minute sampling period.” The significant factor
is that the requirement only comes into play where the concentration of asbestos is
above the control limit. There is no reference to the use of a respirator in relation to
other types of asbestos.
96. There is a subsidiary issue as to the extent that the deceased would have clambered
about in ceiling voids where the asbestos tiles were suspended by wires. Mr Stelling
describes these types of manoeuvre as perilous. He believes that the deceased would
have routinely obtained access through an access panel on a step ladder and looked
into the ceiling voids with a torch.
97. I accept Mr Stelling’s evidence that the deceased probably adopted this procedure for
many of his inspections but it also seems to me that there were likely to have been
other occasions when he was required to go up into the ceiling voids, whether or not
there were secure boards or walkways in place, an example is given of the Newcastle
store where the asbestos survey in February 1999 referred to asbestos pipework
insulation within the areas of the ceiling voids on the ground, first and second floors.
98. It follows that in my view 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
Approved Judgment Macarthy, Mcoy v M&S & D H Allan
stores subsequently, whilst inspecting store premises. If I am wrong the issue has
arisen as to whether the defendant should be entitled to a contribution or indemnity in
Part 20 proceedings against the third party for breach of its duty to employees by not
taking adequate measures itself to protect employees against the dangers of contact
with asbestos.
99. I am not satisfied that in 1967, as a non-specialist contractor, the third party should
have been familiar with the guidance issued by the Asbestos Research Council,
however, by 1983 I consider that 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 that the third party’ operatives working on damaged pipework or
replacing tiles should have worn protective personal equipment. By 3rd
October 1983
the third party was writing to the defendant enclosing a consignment note for the
disposal of asbestos ceiling tiles collected from the Newcastle store and a copy of a
local authority licence for their disposal. By 24th
February 1984 the deceased was
writing to the defendant reporting on an analysis of lagging and other rubble, referring
to asbestos content and a sealed skip.
100. I do not accept the third party’s submission that the defendant is precluded from
claiming against the third party because the deceased was in breach of his duty to the
company. The case relied upon is different from the present circumstances, which are
not concerned with a sole director nor indeed with contribution proceedings. Section 2
of the Civil Liability (Contribution) Act 1978 states that “the amount of the
contribution recoverable from any person shall be such as may be found to be just and
equitable having regard to the extent of that person’s responsibility for the damage in
question.” It follows that, if I had found for the claimant, in relation to the inspections,
I would also have found for the defendant against the third party in the Part 20
proceedings, which I would have assessed at 50%.
101. At the end of the trial I indicated that it was not necessary for counsel to attend
the handing down of this judgment unless it was not possible for them to agree any
consequential orders. If the parties are unable to agree an order, this matter should be
relisted before me for further directions. If no order can be agreed I adjourn the
question of permission to appeal until the relisted hearing and grant an extension of