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Asbestos: success for John Williams in Heward v M&S Plc

Asbestos: Heward v Marks & Spencer Plc (D H Allan Limited, Third Party) [2014] EWHC 3183 (QB)

The High Court today (08/10/14) handed down judgment in the case of Heward v Marks & Spencer Plc. This judgment provides welcome guidance on the common law liability of occupiers for asbestos exposure that occurred after the publication of HSE Guidance Note EH10 in December 1976 but before that Guidance was further revised in July 1984. EH10 (1976) included specific advice to duty holders (employers & occupiers) that exposure to asbestos should be reduced to the minimum reasonably practicable and, in any case, should never exceed the hygiene standards set out in the Guidance. As such, the publication of this Guidance is commonly regarded as excluding any defence to a claim in negligence where some exposure is proved (even at levels below the then hygiene standard) but no precautions taken e.g. wearing a respirator.

In Heward, the Deceased was a contractor who had carried out property surveys for M&S Plc (“D”) over many years at stores in the North East of England. From 1984 onwards he wore a respirator when entering ceiling voids that contained asbestos debris but, between 1976-1984, he carried out this work without protection. Following the Deceased’s death from mesothelioma, his widow brought proceedings against D alleging breach of the common duty of care it owed to the Deceased under the Occupiers Liability Act 1957. Although the experts agreed that the Deceased’s exposure when inspecting ceiling voids did not exceed the hygiene standards in EH10 (December 1976), the Claimant argued that in order to discharge the duty it owed to the Deceased, D should have advised him to wear a respirator and that, in failing to insist on this, it had not reduced the Deceased’s exposure to the lowest level reasonably practicable.

In his judgment, Mr. David Pittaway KC (sitting as a Deputy High Court Judge) applied Williams v Birmingham University [2011] EWCA Civ 1242. In his view, the levels of dust to which the Deceased was exposed did not give rise to a forseeable risk of injury. Turning to the argument that D should nonetheless have advised the Deceased to wear a respirator, the Judge concluded that, properly analysed, EH10 (December 1976) did not extend to requiring the use of a respirator or protecting clothing. He noted that para 10 stated that: “an approved respirator will be required to be worn unless the concentration in the breathing zone of a worker in a crocidolite process can be maintained below [the hygiene standard].” No reference was made to the need to use a respirator with any other type of asbestos. In light of this guidance, D was not in breach of the common duty of care it owed to the Deceased as the occupier of premises where asbestos was present in areas accessed by the Deceased.

A claim based on an episode of alleged exposure to asbestos during refurbishment works at the York store in 1967 was also dismissed. Accordingly, the claim against M&S Plc failed – as did M&S Plc’s additional claim against the Deceased’s employer.

The judgment has important implications for claims based on alleged low level exposure after 1976 where the Claimant / Deceased was not working directly with asbestos but was exposed to levels in excess of background levels e.g from asbestos building materials used in buildings such as schools.

John Williams (instructed by Plexus Law) represented M&S Plc.

A copy of the judgment can be viewed here.

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