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Court Success: An alleged exposure to asbestos

At a glance

  • The claimant, failed to establish negligence or breach of statutory duty following an alleged exposure to asbestos
  • The Defendant owed a duty to tenants to warn that they should not carry out works that a risk of disturbing the asbestos
  • The Court held that the deceased was not exposed to a level of asbestos fibres above background levels

Executive summary

The claimant, a tenant of our insured’s property, failed to establish negligence or breach of statutory duty following an alleged exposure to asbestos during the course of tenancy with the Borough Council, and arising particularly from heating installation and decoration works.

The Facts

The deceased was a tenant within a property owned by the Borough Council. The Claimant’s case was that malignant mesothelioma had been caused by the deceased’s exposure to asbestos during the course of his tenancy.

The claim was pleaded on a number of basis’ including the Landlord and Tenant Act 1985, Defective Premises Act 1972, and Occupier’s Liability Act 1957. However by agreement of the engineering experts the mere presence of asbestos-containing materials does not itself give rise to any exposure above background levels, even where dilapidated. As such any claim based on defect in the property was excluded and the case was confined to whether there was a breach of common law duty of care.

The Claimant pleaded exposure from the following sources:
1. Redecoration of the walls and ceilings, once a year. It was alleged that the ceiling contained an asbestos decorative coating which was disturbed when sanding the cornices to prepare for works.
2. Asbestos floor tiles which were worn and disintegrating.
3. The disturbance of asbestos when a new central heating system was installed.
4. Brushing up against the toilet cistern which contained asbestos
5. Exposure from communal areas which contained asbestos and were disintegrating

Judgement

The claim was dismissed. The Court held that based on the evidence presented the deceased was not exposed to a level of asbestos fibres above background levels. The Judge found that the Defendant did owe a duty to take reasonable steps to reduce the tenant’s exposure so that it was as low as reasonably practicable and that the Defendant owed a duty to tenants to warn that they should not carry out works that carry a risk of disturbing the asbestos materials. However, the Judge considered that such a duty did not arise in respect of the cleaning and decorating activities of the deceased as those activities did not involve abrasive techniques that breached the textured coatings on the ceilings. Any disturbance at the edge of the ceiling was found to be de minimis.

Comment

This was a fatal case in which the deceased did not provide a lifetime statement. The Defendant was able to adduce witness evidence which refuted the disturbance of asbestos during the course of the heating installation works, and engineering evidence agreed that any exposure from the mere presence of asbestos materials, cisterns, or floor tiles was not above background level. There was no evidence of disturbance of these materials. Regarding exposure from the ceiling during decoration the Claimant adduced photographs which showed no damage to the coatings and therefore the judge was not convinced as to disturbance.

This case is a reminder that the onus remains upon the Claimant to prove, on the balance of probabilities, their exposure to the asbestos and the negligence of a Defendant in causing such exposure. It is not sufficient to simply say that asbestos was present.

It is further a reminder of the importance of Defendants’ own witness evidence, even where such evidence comments on procedures and works generally without specific knowledge of the allegations.

This claim was handled by Richard Thompson in our Birmingham Occupational Disease Claims Team. Our Counsel Ms Jayne Adams QC of Ropewalk Chambers represented us at Court under instruction of our panel solicitors DWF LLP.

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