In a claim for mesothelioma the claimant alleged that the local authority which owned the flat where her deceased husband lived from 1972 till death in 2012 (caused by a heart attack, accelerated by mesothelioma) was liable for his death as a result of exposure from Asbestos Containing Materials ‘ACM’s  in the building, and in the deceased’s flat.

It was accepted that, as owner and landlord of the block of flats, the defendant owed a duty to take reasonable care to ensure that the deceased was not exposed to a foreseeable risk of asbestos related injury. Based on the evidence it was found that the deceased had not been exposed to a level of asbestos fibres above background levels in the flat.

Background

The deceased, Mr Frederick Lugay died on 19 July 2012, aged 73. Although Mr Lugay died of a myocardial infarction, it was agreed, based on the medical evidence, that his death was accelerated by four years by reason of malignant mesothelioma. The claimant, Mr Lugay's widow, sought damages of £138,729 under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976 in respect of the death of her husband.

The matter was heard before Mrs Justice O’Farrell in the High Court.

Potential sources of exposure

Occupational Hygienists, Tracey Boyle and Martin Stear, agreed that the presence of ACMs would not have increased the deceased’s exposure above background levels – up to 0.0005fibre/ml.

Refurbishment works took place in the building in 2005; Mrs Justice O’Farrell dismissed this as a causative factor because it was within 10 years of onset of symptoms.

Between 1987-1988 the defendant installed a new central heating system throughout the flat – the claimant was unable to prove this work involved disturbance of ACMs. The court was not assisted by a statement from the deceased.

Finally, the court heard that the deceased had decorated the flat himself every year – including sanding surfaces to be repainted. There were factual differences given to the experts on precisely what the work involved – and thus contact with asbestos. The judge found contact or disturbance of asbestos would have been de minimis.

Legal tests

Because the experts agreed that the mere presence of asbestos containing materials does not itself give rise to any risk of exposure above background levels, even where dilapidated, there could be no claim based on any defect in the property. The claim was pleaded on a number of alternative bases including breach of the Landlord and Tenant Act (1985), Defective Premises Act (1972) and Occupier’s Liability Act (1957).

In respect of negligence, Mrs Justice O’Farrell set out the factors to take into account in determining foreseeability from Williams v University of Birmingham [2011] EWCA Civ 1242.

In respect of the actual level of exposure, the judge concluded that:

“Based on the evidence before the court, considered above, Mr Lugay was not exposed to a level of asbestos fibres in the flat above background levels”.

The judge considered that there was no duty to remove all asbestos from the flats. The experts agree that the mere presence of asbestos does not, of itself, present a material risk of exposure to asbestos fibres.

The judge also considered TDN13, EH10 and the cases of Maguire v Harland & Wolf plc and Another[2005] EWCA CIV 1, Jeromson [2001] EWCA Civ 101 and Baker v Quantum Clothing Group Limited[2011] UKSC 17.

The judge held that the defendant had a duty to ensure that the tenants were protected against exposure to asbestos if works were carried out which entailed a risk of disturbance to asbestos materials. But there was no duty to prohibit all work in the flats to asbestos-containing materials. There was a duty to warn the tenants that they should not carry out works that carry a risk of disturbing the asbestos materials. Such a warning was given in 2005. But such a duty did not arise in respect of the cleaning and decorating activities carried out by the deceased, his decorating activities did not involve abrasive techniques that breached the textured coating on the ceilings.

The judge found that the deceased was not exposed to asbestos fibres during his cleaning and decoration of the flat. Any disturbance at the edges of the ceiling would have been de minimis.

The judge concluded that the defendant was not in breach of its duty of care. Causation was not proved either. The claim was accordingly dismissed.

What this means for you

Many Local Authorities have responsibilities for buildings containing Asbestos, while is it imperative to assess the risks of the asbestos and any disturbance thereof, this judgment is a nod to the fact that undisturbed asbestos in buildings is unlikely to expose residents to any levels higher than the naturally occurring background levels of asbestos in the environment. Proper use of occupational hygienist was a large factor in this result.