Macarthy & Anor v

Liability for mesothelioma depends on the state of knowledge, probable exposure, and precautions reasonably required at the material time. Exposure below applicable hygiene or control limits did not, on these facts, make injury reasonably foreseeable or require respiratory protection. Work by independent specialist contractors was an activity duty, outside the Occupiers Liability Act 1957; a common-law duty still required evidence that the occupier assumed responsibility for controlling the work. The claim failed. A contribution claim against the employer would, if necessary, have succeeded at 50 per cent.

The claimants, as executors of the estates of John Heward and Catherine Heward, claimed damages following Mr Heward’s death from mesothelioma. The alleged exposure occurred while he worked for D H Allan & Sons Ltd at Marks & Spencer stores: first as a joiner during ceiling installation at York in 1967, and later while surveying and inspecting ceiling voids. Marks & Spencer denied negligence and liability under section 2 of the Occupiers Liability Act 1957. It also sought contribution from the third party employer.

The issues were whether exposure occurred, caused mesothelioma, was negligent or breached the statutory common duty of care, and, if so, whether the third party was responsible for contribution.

The claim against Marks & Spencer was dismissed. The court accepted that Mr Heward contracted mesothelioma from occupational asbestos exposure at the defendant’s stores, including exposure at York in 1967 and during later inspections.

1. The York ceiling installation was an activity duty, not an occupancy duty under section 2 of the Occupiers Liability Act 1957. Evidence that a warehouseman was overseeing the work did not establish that Marks & Spencer assumed responsibility for safety or controlled the independent contractors.
2. By contemporary standards, the probable 1967 exposure did not make injury to a bystander reasonably foreseeable. The court applied Williams v University of Birmingham and considered actual exposure, contemporary knowledge, foreseeability, and reasonable precautions.
3. Later inspections engaged the occupancy duty under section 2(2). Probable exposure of approximately 0.01 to 0.03 fibres/ml was below the applicable hygiene and control limits. The phrase “so far as is reasonably practicable” required a contemporary balancing exercise and did not require respiratory protection at those levels.
4. The deceased’s directorship did not bar contribution proceedings. Under section 2 of the Civil Liability (Contribution) Act 1978, the third party would have been liable for 50 per cent if the claimant had succeeded on the inspection claim.

The court also found that by 1983 the third party should have acted on available guidance and protected its operatives working on damaged asbestos materials.

First instance decision. No prior appellate decision in the same proceedings is stated.