Lugay (Personal representative of the estate of Frederick Lugay deceased) v Hammersmith & Fulham London Borough Council  EWHC 1823 (QB)
Negligence – Causation - Breach of duty – Material contribution – asbestos – foreseeability
Queen’s Bench Division
19 July 2017
In a mesothelioma case, where a tenant of a local authority’s block of flats had died as a result of a malignant mesothelioma, it had not been shown that the landlord had breached their duty of care or any causative exposure through the deceased tenant’s occupancy of the flat.
The deceased had lived in a flat under a tenancy agreement with the defendant local authority since 1972. Materials containing asbestos had been used in the construction of the block of flats, both in the common parts of the block and within the flat. The deceased redecorated the flat once a year, stripping walls and ceilings and sanding them down. The deceased suffered from congestive cardiac failure for many years. In June 2011, he was diagnosed with epithelial type malignant mesothelioma of the pleura. He died in June 2012.
His widow sought damages from the defendant local authority and claimed that his death was accelerated by a period of 4 years by his exposure to asbestos during the course of his tenancy. The widow alleged he was exposed to asbestos fibres in the flat in a number of ways, including through redecorating the flat once a year, stripping and sanding walls and ceilings, through worn and disintegrating asbestos floor tiles; the installation of central heating had disturbed the asbestos. The defendant denied liability.
The court held that as owner and landlord of the block of flats, the defendant owed a duty of care to the deceased to ensure that the deceased was not exposed to a foreseeable risk of asbestos related injuries. However, the court held that from the evidence available, the deceased was not exposed to a level of asbestos fibres in the flat above background levels. The mere presence of asbestos did not, of itself, present a material risk of exposure to asbestos fibres. There was, and remained, a duty to warn tenants that they should not carry out works that carried a risk of disturbing the asbestos materials, and the defendant had issued a warning in 2005. This duty did not arise in respect of cleaning and decorating activities carried out by the deceased and any disturbance would have been de minimis. The claimant’s claim was dismissed.