Occupiers' Liability

McCarthy v. Marks & Spencer plc [2014] EWHC 3183

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...