Lugay v London Borough of Hammersmith And Fulham [2017] EWHC 1823 (QB)

[2017] EWHC 1823 (QB)Case No HQ15A02679
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/07/2017
Before
MRS JUSTICE O'FARRELL
Between
MRS ADASSA ROBINSON LUGAYClaimantLONDON BOROUGH OF HAMMERSMITH AND FULHAMDefendant
Mr Simon Levene (instructed by Slater Gordon (UK) LLP) for ClaimantMs Jayne Adams QC (instructed by DWF LLP) for DefendantHearing Hearing dates: 3 rd April 2017
Judgment ApprovedMrs Justice O’Farrell:
[1]Mr Frederick Lugay was born on 20 September 1938. He died on 19 July 2012, aged 73. Although Mr Lugay died of a myocardial infarction, it is common ground based on the medical evidence that his death was accelerated by four years by reason of malignant mesothelioma.[2]The claimant, Mr Lugay’s widow, seeks 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.[3]The claimant’s case is that the malignant mesothelioma was caused by Mr Lugay’s exposure to asbestos during the course of his tenancy of Flat 34, Barton House, Wandsworth Bridge Road, London, a property owned by the defendant council.[4]The defendant accepts that Mr Lugay developed mesothelioma, and that the effect of that disease accelerated his death by four years, but disputes any breach of duty or any causative exposure through occupancy of the flat. There are minor issues as to the quantum of any damages.[5]The following evidence was adduced by the parties: i) Adassa Lugay, Mr Lugay’s widow, made witness statements dated 22 June 2015 and 15 December 2015 and gave oral evidence in court. ii) A witness statement by Anne Marie Lugay, Mr Lugay’s daughter, dated 3 May 2016, was served under the Civil Evidence Act 1995. iii) Stephen Kirrage, Director of Asset Management for the defendant since 2012, made a witness statement dated 23 May 2016 and gave oral evidence in court. iv) The witness statement of Nadine Williams, litigation executive at Slater Gordon (UK) LLP, dated 27 February 2017, was produced by the claimant, exhibiting photographs of the flat taken on 27 February 2017. v) The claimant relied on the medical report of Dr D G Sinclair MD FRCP, consultant respiratory physician, dated 30 June 2015. The conclusions reached on the cause of death were not challenged and it was not necessary for Dr Sinclair to give oral evidence. vi) The claimant relied on the expert report of Tracey Boyle MSc Dip Occ Hyg CFFOH, occupational hygienist, dated 22 September 2016. vii) The defendant relied on the expert report of Martin Stear BSc DipOH CFFOH, occupational hygienist, dated 12 September 2016. viii) The experts were not called to give evidence at trial, given the limited issues between them, but the Court had the benefit of their joint statement dated 20 October 2016.

Mr Lugay’s medical history

[6]Mr Lugay was born in the Dominican Republic and worked in the building industry as a carpenter before moving to the UK when he was 19 years’ old. In the UK he worked as a bus conductor for London Transport for 35 years and thereafter, until his death, he worked as a cleaning supervisor for Lambeth Council. He was also a lay preacher with the Pentecostal Apostolic Church.[7]From 1972, Mr Lugay lived in Flat 34, Barton House, a 19 storey block of flats, under a tenancy agreement with the defendant.[8]In about 2003 Mrs Adassa Robinson Lugay moved into the flat with him and on 21 June 2008 they married. Mrs Lugay continues to occupy the flat.[9]Mr Lugay suffered from congestive cardiac failure for some years. In 2011 he was diagnosed with epithelial type malignant mesothelioma of the pleura. On 19 June 2012 he died. The cause of death was given as: 1a) acute myocardial infarction and 2) malignant mesothelioma, bronchopneumonia, hypertensive heart disease.[10]As set out in the report of Dr Sinclair, malignant mesothelioma is a tumour that arises from mesothelial cells or possibly more primitive sub mesothelial cells. It occurs most commonly in the pleura or peritoneum.[11]Dr Sinclair noted that Mr Lugay had a history of significant heart failure in association with hypertension prior to any symptoms attributable to malignant mesothelioma. However, his heart condition was stable and the development of malignant mesothelioma caused a significant deterioration in his health. Symptoms of malignant mesothelioma include increasing breathlessness, weight loss, and chest pain. No treatment is available in the form of surgery, chemotherapy or radiotherapy that offers any prospect of cure.[12]Professor Sheaff, who carried out the post mortem, noted that, although the main cause of death was an acute myocardial infarction, the underlying presence of malignant mesothelioma, with significant pleural effusions, would have imposed an extra burden on cardiac function and would have been a contributing factor to this development. The presence of bronchopneumonia was directly related to the underlying malignant mesothelioma and would have been a source of further cardiac strain.[13]Dr Sinclair’s opinion is that the development of malignant mesothelioma reduced Mr Lugay’s life expectancy by 4 years.

Cause of mesothelioma

[14]Dr Sinclair’s report explains that exposure to asbestos and subsequent inhalation of asbestos fibres is the cause of most cases of malignant mesothelioma. A history of occupational or other exposure to asbestos dust and spoil is present in nearly 90% of cases in the United Kingdom. In people without known exposure to asbestos, mesothelioma is rare, accounting for about one in ten thousand deaths.[15]The average latent interval between first exposure to asbestos and death from malignant mesothelioma is between 20 and over 40 years. The latency is unrelated to the severity of exposure. Mesothelioma can occur after low level asbestos exposure and there is no threshold dose of asbestos below which there is no risk.[16]As set out by Aikens LJ in Williams v University of Birmingham [2011] EWCA Civ 1242 at paragraph [26], there are many potential sources of asbestos exposure:
“A person could be exposed to asbestos fibres as a result of a job. It has been recognised, for instance, that particular occupations such as ship building, plumbing, carpentering and working as a heating engineer, which could all involve work with insulation material containing asbestos, would give rise to an increased risk of contracting mesothelioma. People can be exposed to asbestos in various other circumstances, as this case indicates. But people living in an urban environment, even without any occupational exposure to asbestos, will inhale large numbers of asbestos fibres and yet not develop a mesothelioma.”
[17]The long period of incubation before manifestation of any symptoms and the varied sources of potential exposure over that period cause difficulties in establishing when, where and in what circumstances any asbestos exposure occurred. In this case, the medical opinion of Dr Sinclair does not provide an answer to those questions.[18]Unfortunately, Mr Lugay died before these proceedings were started and did not provide any witness statement that might assist as to the source of his exposure to asbestos. Therefore, it is necessary to consider 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.

Source of asbestos

[19]Barton House was constructed in the 1960s. Asbestos-containing materials were used in the construction of the block: i) In the common parts 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. ii) In the flat, there were chrysotile (“white”) asbestos-containing floor tiles, amosite (“brown”) asbestos insulation panels in the meter cupboard, brown asbestos-containing toilet cistern and white asbestos-containing textured decorative coatings to the ceilings.[20]The claimant’s case is that Mr Lugay was exposed to asbestos fibres in the flat: i) He was a meticulous housekeeper, who redecorated the flat once a year, stripping walls and ceilings and sanding them down. ii) Asbestos floor tiles were worn and disintegrating. iii) In 1987 or 1988 the installation of central heating disturbed asbestos, which was cut, drilled, removed and otherwise disturbed. Mr Lugay lived in Barton House throughout. After the works, the flat was left very dusty, and he swept it clean. iv) Flushing the toilet entailed brushing up against the asbestos side of the cistern, which gradually deteriorated. v) The asbestos used in the communal areas of Barton House disintegrated, releasing asbestos into the atmosphere.

Presence of asbestos in the building

[21]There is no significant risk of exposure to asbestos fibres from the presence of asbestos materials unless they are disturbed. In paragraphs2.1 and2.2 of the joint statement, the experts agree that the identified asbestos-containing materials in Barton House would not, by their presence, have caused an increase in exposure above background levels, up to 0.0005 f/ml.[22]The experts also agree that walking on the floor tiles, brushing against the toilet cistern, carrying out general housework, such as dusting or reading the meter in the meter cupboard, probably would not have increased exposure above background levels.[23]Mr Kirrage’s evidence is that the floor tiles are resin bonded to the substrate. Much force would be needed to break them and, even if broken, they would break cleanly and it is very unlikely that asbestos fibres would be released.[24]Although asbestos was used in the insulation boards, it would be embedded in the panels and not located on the surface. Although the common parts were in a state of disrepair, and panels were hanging off the walls, the asbestos in the panels would not be released.[25]In about 2005 the defendant carried out refurbishment works in Barton House, including the removal of materials containing asbestos. Mr and Mrs Lugay were provided with temporary alternative accommodation within the Barton House block during the works to the flat.[26]The refurbishment works were carried out within 10 years of the onset of Mr Lugay’s symptoms. In the absence of any evidence to the contrary, they can be discounted as a causative factor, as recognised by the experts in paragraph 2.7 of the joint statement. There is usually a very long period of at least 30 - 40 years between the exposure to asbestos and the development of the first malignant cell. Therefore, any exposure during the recent works is unlikely to have been causative of Mr Lugay’s mesothelioma.

Installation of central heating system

[27]In about 1987-1988 the defendant installed a new central heating system throughout the flat to replace the underfloor heating. In the particulars of claim it is alleged that: The Deceased live[d] there while the works were being carried out. The installation entailed cutting, removal and drilling of the asbestos floor tiles. Pipework was run under the floor. The asbestos sheets under the window were drilled and otherwise disturbed by the installation of the radiators. On completion of the central heating works the flat was left very dusty, and the Deceased and his daughter swept up the asbestos dust that had been left behind.[28]The experts agree in paragraph 2.6 of the joint statement that this raises a factual issue for the court to resolve. If the court finds that these works involved disturbance of asbestos-containing materials without precautions and Mr Lugay was present, then he was probably exposed at some level.[29]Mrs Lugay did not live in the flat at the time the works were carried out and therefore was unable to give any evidence on this matter.[30]Mr Lugay’s daughter, Anne Marie Lugay, had already moved out of the family flat when these works were carried out but set out her recollection in her witness statement:
“The Council installed central heating in about 1987 or 1988. There were radiators in the front room and radiators in each of the bedrooms and two in the front room. There was a new boiler located in the kitchen. They installed this throughout the house. The boiler was in the kitchen and pipe work was above ground and all at floor level.”
[31]Mr Kirrage was not involved in the execution or supervision of these works but, based on his experience of similar projects for the council, he explained that the defendant would not have disturbed the tiles in carrying out these works:
“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…”
[32]In evidence, Mr Kirrage stated that the radiators were fixed to the wall and the central heating pipes were fixed to the wall by clips.[33]There is no direct evidence as to the works carried out as part of the installation of the central heating. However, Mr Kirrage’s explanation as to what he expected is consistent with the recollection of Anne-Marie. The new pipes were installed on the surface at floor level, as shown in the photographs attached to Mrs Lugay’s first witness statement. Therefore, the work would not have required any disturbance of the floor tiles. There is no evidence that the tiles were cut, drilled or removed to remove the old pipes or install the new pipes. The survey sheets produced by the defendant indicate that, although there were asbestos sheets beneath windows on balconies, they were installed only to the top floor flats and would not have been a source of exposure to asbestos fibres in Mr Lugay’s flat.[34]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.

Decoration works

[35]Mr Lugay was very house proud and each year he cleaned and decorated the walls and ceilings of the flat. In the particulars of claim it is alleged that: The Deceased redecorated the flat once a year, usually at Christmas time. He stripped wallpaper from the walls and repainted the ceilings; in preparation for this work he sanded down the surfaces to be painted or papered, releasing asbestos dust into the air.[36]Mrs Lugay set out the following evidence in her first witness statement:
“He removed the wall paper in the living room and would re-wall paper every Christmas and would do preparation work to rub down the ceiling with sandpaper and smooth any damaged areas of the ceilings and he also painted the coated ceilings every 2 years. He painted the kitchen and the ceiling in the kitchen and the passage way. This is something that he always did every Christmas. It would take him about 2 days to paint the ceiling and he would apply the first coat and wait for it to dry and then apply a second coat. This again exposed him to asbestos fibres. He also painted the bathroom and toilet including the ceilings on a regular basis.”
[37]In Mrs Lugay’s second witness statement she describes the works as involving:
“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...”
[38]In cross-examination, Mrs Lugay stated that Mr Lugay would use sandpaper to clean off the mould and mildew and would wipe the ceilings with a cloth. In a few areas that needed more attention, he would use sandpaper if the mould and mildew did not come off with a cloth.[39]Mr Lugay’s daughter, Anne Marie Lugay, set out her recollection in her witness statement:
“As far as I remember my father would decorate and strip wall paper and paint walls which created a lot of dust. The bathroom was particularly bad and could never be decorated properly due to the mould and parts of the walls falling off. Many times there were leaks from the ceiling in the flat which caused cracks all the way around the edge of the ceiling of the entire flat…”
[40]Mrs Lugay and Anne Marie Lugay both made reference in their evidence to dust during the redecoration works. However, asbestos fibres would not be visible to the naked eye. Therefore, this does not assist in ascertaining whether asbestos fibres were released during this work.[41]The experts disagree on the level of exposure that may have been experienced by Mr Lugay when he sanded down the edges of the ceiling.[42]Although there are references to “cornices” in the pleadings, witness statements and expert reports, the photographs do not show any mouldings or cornices in the flat. The references to “cornices” must be references to the corners between the walls and the ceilings.[43]Mrs Boyle sets out in the body of her report at section 4.11 the following: “It seems from the Defendant disclosure that the ceilings would have been coated with a textured decorative coating (TDC), which contained asbestos up to 1984. These coatings contained between 1 and 5% chrysotile. The fibres would not be released unless disturbed, as they would be firmly bound in the plaster and painted. However, if the Deceased sanded the TDC, fibres would have been released. “In his paper, “Airborne fibre concentration during the removal of asbestos-containing textured decorative plasters and paints and the risk to workers”, from 2005, Burdett reported personal and static monitoring results during various maintenance-type activities. Personal sampling results from a worker scraping TDC using a screwdriver for 15 mins resulted in exposures of <0.01 f/ml, while wire-brushing TDC gave results of 0.02 f/ml. When the sampling results for each activity were pooled, they gave results of 0.002 f/ml for scraping TDC with a screwdriver and 0.006 f/ml for wire-brushing TDC. “EH35 1989 stated that exposure during scraping of painted plaster was0.1 to0.2 f/ml … “These papers suggest that the Deceased’s exposure when carrying out the sanding work may have been between 0.002 and 0.2 f/ml. Any exposure would have been short-term and intermittent but between 4 and 400 times the accepted background level while he was working.[44]That assessment is based on an assumption that Mr Lugay sanded down the “cornices” or edges of the ceilings in the flat over a period of about 6 hours on each occasion that he decorated.[45]In the summary of her conclusions, Mrs Boyle states:
“In my opinion, if he sanded down the ceiling cornices, which were coated with textured decorative coating, then the Deceased would have been exposed to asbestos. His exposure while carrying out this task may have been between 0.002 to 0.2 f/ml. The Claimant does not indicate that he sanded the whole ceilings, but that he smoothed down any areas which needed it and repainted the ceilings every 2 years. I estimated an exposure dose of 0.00026 to 0.026 f/ml years. This is a low exposure does, but while he was working his exposure would have been in excess of background levels, between 4 and 400 times the accepted background level.”
[46]In his report, Mr Stear referred to a further paper by Burdett “An investigation into the airborne fibre releases during the removal of textured coating from domestic premises” (HSL/2005/32):
“Study 2 was with regard to repair/maintenance to the ceilings and walls of domestic properties. The results of personal sampling (for less than 30 minutes) and static sampling gave concentrations of <0.01 to <0.24 fibre/ml. Reported as the actual calculated results and they ranged from 0.001 to 0.024 fibre/ml. The activities included fitting a smoke detector, removing a ceiling rose, removing lighting, drilling, stripping Artex and removing a strip of damaged ceiling… “These reported exposures are low and for activities I consider more significant than the Deceased’s alleged preparatory work. For the Deceased, he was working mainly to what I consider were plaster (or largely plaster) walls, with the potential for some limited or incidental contact with the ceiling. If and when he did make contact with the ceiling, then based on the Claimant’s witness evidence, he wiped down the areas before sanding away on residues of mould. However, I consider it reasonable to conclude that he would want to avoid extensive damage to the ceiling’s textured/decorative coating.”
[47]Mr Stear’s conclusions include the following at paragraph 5.3:
“The Deceased allegedly redecorated the flat every year, due to the presence of mould and mildew, although I would not expect this to have caused exposure above background levels. The walls were probably, in my opinion, largely or entirely plaster (i.e. there may have been one AIB panel but this may not have been accessible) and whilst he may have had some contact with the edges of the asbestos-coated ceiling, I consider that such contact and potential exposure was probably minimal.”
[48]The differences between the experts is recorded in paragraph 3.1 of the joint statement:3.1.1 “Mrs Boyle will say that the Claimant evidence is that the Deceased sanded the edges of the ceilings in each room every year to get rid of the mould and mildew. Sanding textured decorative coatings can give exposures of between 0.002 and 0.2 f/ml. The exposure would have been short-term and intermittent.3.1.2 Mr Stear will say that he generally agrees with the exposure data presented by Mrs Boyle and has presented similar exposure data although he takes the view that as the Deceased was painting and sanding walls, including the cornices, he probably had minimal contact with the asbestos-containing coating to the ceiling. If, as he considers reasonable, the cornices were a proprietary product, albeit with some coating to the edge of these or on to their surface, then much of the mildew removal / preparation was not to the coating that was on the ceiling. However these are matters for the Court. If the Court finds that the Deceased did sand the ceilings, then the exposure data reported by Mrs Boyle is probably reasonable.”[49]I accept the evidence of the claimant that it was necessary to clean and/or redecorate the flat to address the problem of mould. The photographs taken by Ms Williams and exhibited to her witness statement demonstrate that the flat suffers from mould. There is evidence of water staining to the walls and ceilings. There is also black mould present at the junction line between the top of the walls and the ceilings in the living room, kitchen and bedrooms.[50]The photographs also show clearly the painted, textured ceilings. Although the photographs were taken recently, Mrs Lugay confirmed in her evidence that the current ceilings in the flat were the same as those in place at the time that she moved in, in about 2003. She also stated that no one had sanded the top of the walls or ceilings since Mr Lugay’s death. There is no indication in the photographs that the textured surface has been sanded down or disturbed. This photographic evidence is consistent with Mr Lugay stripping and sanding the walls, to create smooth surface for re-papering, wiping away the mould with a cloth, but leaving the textured coating to the ceilings intact for re-painting.[51]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.[52]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.

Test to be applied

[53]Although the claim has been pleaded on a number of alternative bases (breach of the Landlord and Tenant Act 1985, Defective Premises Act 1972 and Occupier’s Liability Act 1957), the agreement by the experts that the presence of asbestos-containing materials does not of itself give rise to any risk of exposure above background levels, even where dilapidated, excludes a claim based on any defect in the property.[54]The issue in this case is whether the claimant can establish her claim based on a breach of common law duty of care.[55]In a claim for damages for negligence for breach of a common law duty arising out of malignant mesothelioma, the claimant must prove, on a balance of probabilities the following factors: i) Firstly, the claimant must establish that the defendant owed the victim a duty of care not unreasonably to expose him to asbestos fibres and the consequent risk of asbestos related injury, including mesothelioma. ii) Secondly, the claimant must show that the defendant was in breach of that duty by being negligent in exposing the victim to asbestos fibres and consequent asbestos related injury that was the reasonably foreseeable result of that negligence. iii) Thirdly, the claimant must prove, on a balance of probabilities, that the defendant's negligent breach of duty caused a material increase in the risk that the victim would develop mesothelioma. iv) Lastly, the claimant must prove the loss and damage suffered in consequence of the injury and that it is within the usual “remoteness” rules. See: Williams v Birmingham (above) per Aikens LJ at paragraph [31]; Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; Barker v Corus UK Ltd [2006] UKHL 20; Sienkiewicz (Administratrix of the Estate of Enid Costello Deceased) v Greif (UK) Limited [2011] UKSC 10.

Duty of care

[56]It is common ground that, as the owner and landlord of Barton House, the defendant owed a duty to take reasonable care to ensure that Mr Lugay was not exposed to a foreseeable risk of asbestos related injury.

Breach of duty

[57]In determining whether the defendant was in breach of its duty of care, 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.[58]The factors for the court to take into account in determining the issue of foreseeability in cases such as these were set out by Aikens LJ in Williams v Birmingham (above) 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." Actual level of exposure[59]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. Defendant’s knowledge of the risks[60]It has been widely known since the 1960s that exposure to asbestos dust and fibres could give rise to the risk of developing a mesothelioma. The following summary was set out in an appendix to the judgment in Williams (above):
“In 1965 the dangers of mesothelioma came to general attention following the publication of two papers on the topic, one in the USA and one in the UK. The UK paper, called Epidemiology of Pleura and Peritoneum following exposure to Asbestos in the London Area, was by Mrs Hilda Thompson and was published in the Journal of Industrial Medicine. This epidemiological study recognised the link between asbestos exposure and mesothelioma and also reported on the occurrence of mesothelioma in people who had no direct exposure to asbestos but who lived near a source eg. an asbestos factory; or who had come into contact with clothes of a relative who was exposed to asbestos. It concluded that there was “little doubt” as to the risks of both occupational and domestic exposure to asbestos. The US and the UK studies were given wide publicity in the UK by an article in the Sunday Times in its 31 October 1965 edition. It is now accepted that October 1965 marked a change in the state of knowledge, which should have been available to employers of those who were exposed to asbestos.”
[61]In 1970, the Factory Inspectorate issued Technical Data Note 13 “Standards for asbestos dust concentration for use with the Asbestos Regulations 1969”. The Asbestos Regulations applied to processes involving asbestos. TDN 13 provided guidance indicating that the inspectorate would not seek to enforce the Regulations when the dust level was less than 2 f/ml when measured as the average concentration over any 10 minute sampling period.[62]In 1976 the HSE published EH10 (revised in 1983 and 1984), which recommended that for asbestos other than crocidolite, exposure should not exceed 0.2 f/ml (crocidolite or amosite) and 0.5 f/ml (other types) averaged over any 4 hour period. However, it stated that the control limits did not represent the upper limit of permitted exposure and provided that the employer’s statutory duty was to reduce asbestos exposure to as low as reasonably practicable.[63]The publicly available information indicates that from the mid-1980s, if not before, the defendant should have been aware that: i) there were asbestos-containing materials in the Barton House flats, ii) 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 iii) there was no safe level of exposure to asbestos fibres.[64]In those circumstances, the defendant owed a duty to take reasonable steps to reduce any tenant’s exposure so that it was as low as reasonably practicable: James Maguire v Harland & Wolff plc [2005] EWCA Civ 1 per Longmore LJ at paragraph [91]. Reasonable foreseeability[65]Safety must be judged according to the general knowledge and standards of the times: Baker v Quantum Clothing Group [2011] UKSC 17 per Lord Mance at [80]. Lord Dyson stated in Baker at [111]:
“What is safe is an objective question in the sense that safety must be judged by reference to what might reasonably be foreseen by a reasonably and prudent employer.”
[66]In Shell Tankers (UK) Ltd v Jeromson [2001] EWCA Civ 100 Hale LJ at paragraph [32] stated:
“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.”
[67]In this case, the issue is 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.[68]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.[69]The defendant had a duty to ensure that the tenants were protected against exposure to asbestos if works were carried out that entailed a risk of disturbance to asbestos materials. There was no duty to prohibit all work in the flats to asbestos-containing materials. There was, and remains, a duty to warn the tenants that they should not carry out works that carry a risk of disturbing the asbestos materials. I note that in 2005, the defendant issued such a warning.[70]However, such a duty did not arise in respect of the cleaning and decorating activities carried out by Mr Lugay. Those activities did not involve abrasive techniques that breached the textured coating on the ceilings.[71]On the facts of this case, I find that Mr Lugay 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. For those reasons, I find that the defendant was not in breach of its duty of care.

Causation

[72]It is for the claimant to prove, on the balance of probabilities, that the acts or omissions on the part of the defendant materially increased the risk of Mr Lugay contracting mesothelioma. If the court found that the defendant materially increased the risk of contracting mesothelioma, it would be held liable for all damage caused, in this case the premature death of Mr Lugay. However, on the facts of this case, for the reasons set out above, causation is not proved.

Quantum

[73]For completeness, I have addressed the quantum of the claim. The damages are generally agreed, with only minor issues between the parties: Description Claimant (£) Defendant (£) Court (£) General Damages 90,000 75,000 90,000 Interest 2,727 2,250 2,727 Care & miscellaneous 17,400 1,000 8,200 Interest 484 288 228 Losses on death: Bereavement 11,800 11,800 11,800 Losses on death: Funeral expenses & miscellaneous 5,995 5,995 5,995 Interest on bereavement and funeral expenses 427 427 Financial dependency 5,779 5,779 5,779 Domestic services 4,000 1,905 4,000 Loss of society 0 0 0 Interest 117 221.32 117 TOTAL 138,729 104,238.32 129,273[74]The guidelines for mesothelioma recommend a range of £51,000 to £92,500 for pain and suffering. Mr Lugay survived for about 18 months from the appearance of his symptoms and endured two cycles of chemotherapy. He would be entitled to damages towards the top of the range and I accept the claimant’s figure of £90,000.[75]I accept that Mrs Lugay is likely to have provided care for her husband during his illness. However, I take into account that he remained active and at work until his death. Therefore, I would allow £8,200.[76]Although a claim for loss of society was included in the original claim, it was not included in the updated schedule and would not be recoverable: Mosson v Spousal (London) Ltd [2016] EWHC 53.[77]I accept the claimant’s figure for domestic services at £1,000 per annum for 4 years. The evidence is that Mr Lugay was house proud and active until his death. Therefore, I would allow £4,000.

Conclusion

[78]For the reasons set out above, the claimant has failed to prove that the defendant was negligent or that Mr Lugay’s malignant mesothelioma was caused by occupancy and/or use of the flat at Barton House. The claim is dismissed.