Recently, a council involved in a mesothelioma claim has argued that the amount of asbestos exposure a gentleman faced because of them should not be considered negligent. They put forward a ‘de minimis’ argument, i.e. that the amount of asbestos exposure was so small they could not be held to be negligent or in breach of statutory duty.

On July 19th 2017, a decision was made reached in Adassa Robinson Lugay (PR to the estate of Fredrick Lugay – Deceased) v Hammersmith & Fulham London Borough Council. This claim was heard in the High Court. Mr Lugay’s widow pursued compensation on his behalf after he died from mesothelioma, allegedly caused by exposure to asbestos.

The exposure

Mr Lugay was exposed to asbestos in the council-owned flat that he lived in. Mrs Lugay stated that her husband had been exposed to asbestos in a number of ways.  Firstly, Mr Lugay had been house proud. He decorated his flat annually. He stripped the walls and ceilings and also sanded them down, which disturbed asbestos. Furthermore, the asbestos floor tiles within the flat were worn and disintegrating. Thirdly, work was carried out on the flat’s central heating without any safety precautions. Asbestos was disturbed as a result of the work which Mr Lugay had to brush up himself. Sadly, this meant that he was exposed to more asbestos dust.

Finally, evidence showed that when Mr Lugay flushed the toilet he would have to brush up against the asbestos side of the cistern which had degraded over time. There was also asbestos within the communal areas of the flat which had disintegrated over time, resulting in further asbestos exposure.

All of this evidence was used in support of the mesothelioma claim.

The claim

Sadly, Mr Lugay passed away before the mesothelioma claim got to court. Medical evidence confirmed that his death had been accelerated by four years as a result of asbestos exposure.

The council accepted that Mr Lugay had developed mesothelioma and this resulted in his premature death. However, they disputed that the asbestos exposure amounted to any negligence or breach of their statutory duty. The court decided that as an owner/landlord of the flats where Mr Lugay lived, the council were required to ensure that he was not exposed to a foreseeable risk of asbestos-related injury. However, they also decided that Mr Lugay was not exposed to a level of asbestos fibres in the flat higher than ‘background levels.’

The court acknowledged that there is no safe level of asbestos. In the circumstances, it was held that the council owed a duty of care to reduce the deceased’s exposure to asbestos, so that it was as low as reasonably practicable. However, there was no duty on the part of the council to remove all asbestos materials from the flats. It was held that the mere presence of asbestos does not present a material risk of exposure to asbestos fibres. Furthermore, the court found that Mr Lugay’s decorating would only amount to ‘de minimis’ or minimal exposure as this process did not break through the textured coating on the ceilings of the flat.

The council had a duty to warn tenants that they should not carry out work that risked disturbing asbestos material. However, the aforementioned exposure could not be held to be in breach of statutory duty. Therefore, the widow’s pursuit of asbestos compensation failed.

What does the case show?

The case shows that, when pursuing a claim, expert asbestos solicitors need to find evidence of asbestos dust in the atmosphere above ‘background levels’. This evidence can then be used to show that this materially contributed to the development of mesothelioma. We will continue to monitor mesothelioma claim decisions where the issue of breach of duty has been argued by defendants.

How can we help?

If you require assistance in pursuing a claim for mesothelioma compensation please contact us today. You can do so by calling our freephone number 0800 038 6767. Alternatively, you can visit our ‘Contact Us’ page, fill in the form, and we will be in touch.

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