Mesothelioma Claim Dismissed on Facts: Lugay v London Borough of Hammersmith and Fulham [2017] EWHC 1823 (QB)

The High Court in the case of Lugay v London Borough Of Hammersmith and Fulham [2017] EWHC 1823 (QB) have rejected a claim for damages brought by a widow who argued that her husband had developed mesothelioma as a result of exposure to asbestos during his tenancy of a council owned property.

The deceased in this case died aged 73 of a heart attack, although it was agreed, based on the medical evidence, that his death was accelerated by four years by reason of his mesothelioma. The claim was brought by the claimant, the deceased’s widow, who sought damages totalling £138,729 from the defendant council. The claimant argued that the deceased’s exposure to asbestos during his tenancy of a flat owned by the council had caused his mesothelioma and, as such, the council were in breach of the Landlord and Tenant Act 1985, Defective Premises Act 1972 and Occupier’s Liability Act 1957. The defendant denied any breach of duty or any causative exposure through the deceased’s occupancy of the flat.

The deceased was born in the Dominican Republic and worked in the building industry as a carpenter, before moving to the UK when he was 19. In the UK, he worked as a bus conductor for London Transport for 35 years and until his death, he worked as a cleaning supervisor for Lambeth Council. The deceased had lived in the flat from 1972 and in 2003, his wife moved into the flat with him. In 2011, he was diagnosed with mesothelioma and he died in June 2012.

As to the cause of the deceased’s mesothelioma, the judge noted that a history of occupational or other exposure to asbestos dust is present in nearly 90% of cases in the UK. In people without known exposure to asbestos, mesothelioma is rare accounting for about one in ten thousand deaths. However, unfortunately, the deceased had passed away before proceedings were started and without providing a witness statement, so little information was available about the source of his exposure to asbestos.

So the question posed was: ‘… whether the limited factual evidence available and the expert evidence enable the court to be satisfied on the balance of probabilities as to the source of asbestos exposure in this case’.

Exposure

The flat that the deceased had lived in was constructed in the 1960s with the use of asbestos containing materials (ACM), including chrysotile asbestos containing floor tiles, amosite asbestos insulation panels in the meter cupboard, amosite asbestos-containing toilet cistern and chrysotile asbestos containing textured decorative coatings to the ceilings.

In the communal parts of the block, there were asbestos insulation boards, linings within the lift and stair lobbies, asbestos debris within the stair risers, asbestos paint on the walls and asbestos floor tiles.

The claimant argued that the deceased was exposed to asbestos fibres in the flat through:

  • Redecorating the flat once a year, including stripping walls and ceilings and sanding them down.
  • In 1987/1988 the installation of central heating had disturbed asbestos which was cut, drilled and removed which left the flat very dusty.
  • Flushing the toilet entailed brushing up against the asbestos side of the cistern which gradually deteriorated.
  • Asbestos used in communal areas of the block of flats disintegrated, releasing asbestos into the atmosphere.
  • Wearing and disintegration of asbestos floor tiles.

In relation to the last three grounds put forward for exposure, i.e. the presence of asbestos within the building, the experts agreed that this would not have increased exposure above background levels of up to 0.0005 f/ml. They also agreed that walking on the floor tiles, brushing against the toilet cistern and carrying out general housework and reading the meter in the meter cupboard, probably would not have increased exposure above background levels.

With regards to the communal areas, it was agreed that, although asbestos was used in the insulation boards, it would be embedded in the panels and not located on the surface and despite disrepair, the asbestos in the panels would not be released.

Turning to the installation of the central heating system in 1987/88, the experts agreed that this was a factual issue for the court to resolve as if it was found that these works involved disturbance of ACMs without precautions and the deceased was present at the time then he was probably exposed at some level.

Evidence on this matter was given by the deceased’s daughter and the witness for the Council who claimed that the defendant would not have disturbed the tiles in carrying out these works. He stated:

‘We would not have removed the tiles to gain access to the old hearing system, this would be an incredibly big job and an expensive one and there is a far cheaper and easier solution. What we would do is that we would have left the old heating in place, presumably it would be encased within the concrete flooring and we would cap off the old supply. We would cap off the original supply at floor level, leaving the old piping where it was and we would connect a brand new system at surface level … If the new heating system is at floor level, i.e. surface level, it makes it far easier for us to access for maintenance and resurfacing …’

This evidence was accepted and Mrs Justice O’Farrell concluded on this issue:

‘Based on the evidence before the court, the claimant has failed to prove that the installation of the central heating system involved any disturbance to asbestos-containing materials that could have been a potential source of asbestos exposure to Mr Lugay’.

This left only the decoration works carried out by the deceased.

The claimant described the work in her witness statement as:

‘… removing the wallpaper with a scraper to expose the plaster and then sanding this down using sandpaper to remove the mildew and mould. He would also do likewise in relation to the corners of the ceilings ... this would involve one day undertaking preparatory work including cleaning of the mould form the surfaces particularly in the cornices of the ceiling. To do this he would wipe this down with a cloth and then use sandpaper to remove the remaining residue of mould/mildew. Having removed the wallpaper he again used sandpaper to remove the mildew/mould and to prepare a clean surface so that he was able to repaper the walls ...’

The experts disagreed on the level of exposure that may have been experienced by the deceased when he sanded down the edges of the ceiling.

The claimant’s expert claimed that the textured decorative coating of the ceiling would have contained between 1-5% chrysotile. These fibres would not be released until disturbed but if the deceased sanded the coating, fibres would have been released and he estimated that the deceased would have been exposed to between 4-400 times the accepted background level, although in short and intermittent periods.

This was based on the assumption that the deceased sanded down the edges of the ceiling over a period of 6 hours on each occasion.

The defendant’s expert disagreed and said that this activity would not have exposed the deceased to above background levels, as the walls were probably majority plaster and contact with the edges of the asbestos containing ceiling would have been minimal.

The judge, on this issue, accepted the evidence of the claimant that the deceased did indeed redecorate the flat in order to address the mould. However, photos of the ceiling, which were admitted into evidence and taken relatively recently, showed that the textured surface of the celling was intact. As such the judge concluded:

‘If, as claimed by the claimant, Mr Lugay had sanded down the edges of the ceilings each year, for 40 years, the textured coating would be missing, at least in areas. However, the photographs show the textured coating intact up to the corners where the ceilings meet the walls. I find that Mr Lugay stripped the wallpaper and sanded the walls, in preparation to receive fresh wallpaper. He cleaned the mould from the tops of the walls and the edges of the ceiling with a cloth. He used sandpaper to remove remaining traces of mould but did not rupture, fragment or remove any part of the textured coating on the ceiling. Any contact with or disturbance of the asbestos within the textured coating would have been intermittent and de minimis.’

Breach of Duty?

Due to the experts agreeing that the presence of ACMs does not of itself give rise to any risk of exposure above background levels, breach of statutory duty based on any defect in the property was dismissed.

As such the claimant had to establish her claim based on a breach of common law duty of care.

It was agreed that the defendant, as landlord, owed a duty of care to the deceased not to expose him to a foreseeable risk of asbestos related injury.

The court phrased the test of whether the defendant had breached their duty of care as follows:

‘The court must compare the steps taken by the defendant to prevent the victim from being exposed to asbestos fibres with an objective standard of what reasonable steps should have been taken to avoid reasonably foreseeable injury in the factual circumstances prevailing at the time’.

The court held that the factors to take into account in determining the issue of foreseeability in cases such as these were set out by Aikens LJ in Williams v University of Birmingham, at paragraph [44]:

‘i) the actual level of exposure to asbestos fibres to which the deceased was exposed;

ii) what knowledge the defendant ought to have had at the time about the risks posed by that degree of exposure to asbestos fibres;

iii) whether, with that knowledge, it was (or should have been) reasonably foreseeable to the defendant that, with that level of exposure, the deceased was likely to be exposed to asbestos related injury;

iv) the reasonable steps that the defendant should have taken in the light of the deceased's exposure to that level of asbestos fibres; and

v) whether the defendant negligently failed to take the necessary reasonable steps’.

Reviewing the publicly available information which would have been available to the defendant at the time, it was concluded that from the mid-1980s, if not before, the defendant should have been aware that:

  • there were asbestos-containing materials in the flats;
  • if asbestos-containing materials in the flats were disturbed, tenants occupying the flats would be subjected to risks associated with exposure to asbestos fibres; and
  • there was no safe level of exposure to asbestos fibres.

However, the issue in this case was whether the defendant should reasonably have foreseen that tenants carrying out maintenance or decoration in their flats might disturb asbestos-containing materials, giving rise to a risk of exposure to asbestos fibres, such that the defendant should have taken steps to reduce the risk by removing all asbestos, prohibiting works in the flats, or issuing warnings about the presence of asbestos.

The following dicta of Lady Hale LJ in Shell Tankers (UK) Ltd v Jeromson [2001] EWCA Civ 100, was referred to in which she said:

‘The issue in this case is not one of balancing the effectiveness, expense and inconvenience of the precautions required against the extent of the risk: the issue is whether the risk should have been identified’.

Hale LJ, at paragraph 37, rejected the submission that in assessing risk it was adequate for an employer simply to consider the average exposure, rather than the potential exposure:

‘… where an employer cannot know the extent of any particular employee's exposure over the period of his employment, knows or ought to know that exposure is variable, and knows or ought to know the potential maximum as well as the potential minimum, a reasonable and prudent employer, taking positive thought for the safety of his workers, would have to take thought for the risks involved in the potential maximum exposure. Only if he could be reassured that none of these employees would be sufficiently exposed to be at risk could he safely ignore it’.

O’Farrell J concluded that there was no duty to remove all asbestos from the flats, as the experts had agreed that the mere presence of asbestos does not, of itself, present a material risk of exposure to asbestos fibres.

There was also found to be no such duty in respect of the cleaning and decorating activities carried out by the deceased, as those activities did not involve abrasive techniques that breached the textured coating on the ceilings. On the facts of the case, it was found that the deceased was not exposed to asbestos fibres during his cleaning and decoration of the flat and, as the disturbance to the edges of the ceiling would have been de minimis, the judge held that the defendant was not in breach of its duty of care.

As a result, for the same reasons, causation could not be proved and the claim was dismissed.

The full judgment can be accessed here.