Macarthy & Anor v

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”).

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.

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.

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.

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.

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 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.

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.

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.

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.”

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.

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.

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.

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.

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.

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.

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.

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.”

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.”

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.”

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.

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.

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.

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”.

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).

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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).

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.

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.

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.

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.”

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.”

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.

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.

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.

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.

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.

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.

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.

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

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.”

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.

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.

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.

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.

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.

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.

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.

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.

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.

The issues to be determined are : -

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.

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.

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.

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.

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.

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).

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.

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.

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.”

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”.

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.

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.

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.

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.

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”.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 3^rd 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 24^th 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.

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%.

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.