1. Facts

The claimants' employee died from mesothelioma attributable to asbestos dust. He worked for a family company whose business was shopfitting. His job varied throughout his time working for the company, but he mainly worked as a draughtsman and conducted inspections and surveys.  The only known exposure to asbestos dust occurred whilst he was working at stores operated by M&S for two distinct periods.

The claimants brought a claim against M&S (as an employer of the family company) arguing that it had breached its duty of care, ultimately, towards the deceased.

2. Law

The case focused on the following two avenues of claim:

Negligence at common law

The claimants had to demonstrate:

  • that their employer owed them a duty of care;
  • that the duty of care was breached – in this case by exposure to asbestos dust, and the consequent risk of contracting mesothelioma;
  • that the breach caused loss/damage:
    • in the case of mesothelioma the usual causation proof is modified due to the uncertainty created by the inability of science to point to the crucial link between fibres inhaled and the gestation of the genetic process that leads to mesothelioma;
      • the modified approach is that each person who has, in breach of duty, been responsible for exposing the victim to a significant quantity of asbestos dust, and therefore 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;
  • that the loss/damage was reasonably foreseeable:
    • the claimants' position was that, given the degree of actual exposure, it ought to have been reasonably foreseeable to the employer (with knowledge a reasonable employer would have had at the relevant date) that as a result the employee would be likely to be exposed to the risk of contracting mesothelioma.

Occupiers' Liability Act 1957

  • The common law duty of care, as outlined above, is incorporated into statute and applies to occupiers of premises.
  • Section 2(1) – an occupier of premises owes the same duty of care, as described above, to all his visitors except where he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.
  • Section 2(2) – the 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.

3. Decision

The common law negligence claim failed because it could not be shown that M&S had breached its duty of care, given the knowledge of mesothelioma, and therefore the health and safety guidance, available at the time of the deceased's visit to the relevant premises.

As occupier, M&S was also not held to be in breach of its common law duty of care under section 2(2) OLA 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 and given the knowledge of mesothelioma at the time. The levels of exposure that the deceased experienced were less than the hygiene or control limits in force at the time the deceased worked for M&S.

4. Points to consider

The court gave considerable weight to compliance with recognised industry standards and recommended practices that were in force during the two periods when the deceased worked for M&S.

By not falling foul of these, M&S was shown to have been reasonable in all the circumstances, and therefore had not breached its duty of care. Therefore the standards and practices relating to the industry in which a visitor operates are relevant to assessing whether an occupier will be liable to the visitor at the time the visitor attends the occupier's property. This is heightened where there are health risks, such as mesothelioma.

Additionally, foreseeability of the loss was judged by the industry standards of the day, and, again, the claimants were not able to show that at the relevant time mesothelioma was reasonably foreseeable given the understanding of the disease, the industry standards and the level of exposure the deceased experienced.

It is important for occupiers to be aware of all current health and safety legislation, standards and guidance to ensure that risks are adequately dealt with to minimise the potential for liability to be established. Ignorance is no excuse, so it is wise to be familiar with the benchmark level of care expected to be provided to visitors attending premises. This will help limit exposure to a claim that could arise in the event of an unfortunate incident occurring where the risk is obvious at the time the visitor attends the premises – or indeed a number of years after the visit, as pleaded in the McCarthy case.