John Macarthy (Executor of the Estate of John Thorman Heward, deceased) and Another v Marks & Spencer Plc D H Allan & Sons Ltd (Third Party)

JurisdictionEngland & Wales
JudgeDavid Pittaway
Judgment Date08 October 2014
Neutral Citation[2014] EWHC 3183 (QB)
Docket NumberCase No: HQ12X05171
CourtQueen's Bench Division
Date08 October 2014

[2014] EWHC 3183 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

David Pittaway Q.C. (Sitting as a Judge of the High Court)

Case No: HQ12X05171

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
Defendant

and

D H Allan & Sons Ltd
Third Party

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: 4 th, 5 th and 6 th June

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...

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  • Occupiers' Liability
    • United Kingdom
    • Mondaq UK
    • 21 Octubre 2014
    ...v. Marks & Spencer plc [2014] EWHC 3183 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 an......

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