Neutral Citation Number: [2014] EWHC 3183 (QB) HQ12X05171

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)

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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

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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


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.


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


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


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


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


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


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


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.


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


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.


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.


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


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


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.


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


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”.


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


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


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


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.


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


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


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


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


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


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


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


time under CPR r.52.4(2)(a) for filing any appellant's notice until 21 days after I

determine any application for permission to appeal.

Documents

Neutral Citation Number: [2014] EWHC 3183 (QB) HQ12X05171