Mesothelioma legal claim failure leads to call to change the law

A court has rejected a claim for asbestos cancer mesothelioma which caused the death of a council flat tenant.

The Asbestos Case Facts

The victim, Mr Frederick Lugay,was born on 20 September 1938. He died on 19th July 2012 age 73. Whilst he died due to a heart attack the medical evidence confirmed that mesothelioma brought forward his death by four years.

Mr Lugay was exposed to asbestos during the course of his tenancy at Barton House in London. He lived in the flat from 1972 until he died in 2012.

The Issues

The issue of exposure to asbestos in the flat during this tenancy was not argued. However what was in dispute was the type and extent of any exposure to asbestos during the course of his tenancy.

The flat was in a block which had been built in the 1960s. Asbestos containing materials were used in the construction of the block in various the areas including:-

1. In the common parts there was asbestos insulation boards, linings within the lift and stairs and lobbies.
2. There was asbestos debris within the stair risers.  There were also asbestos floor tiles
3. In the flat itself there were white asbestos floor tiles and brown asbestos installation panels in the meter cupboard. There was brown asbestos contained in the toilet cistern. In addition there was white asbestos containing decorative coatings to the ceilings.

The deceased had been very diligent. He kept the flat clean and decorated on an annual basis.

Expert occupational hygienist evidence was obtained. The experts agreed that walking on the floor tiles, brushing against the toilet cistern and carrying out general house work would not have increased the exposure above background levels.

The issue in the case was whether the claimant could establish a claim based on breach of common law duty of care. Floor tiles were resin bonded. Insulation boards would be embedded in the panels.

In 1987/88 the defendant refurbished the flat to change the heating system. This involved removing many asbestos-containing materials. The deceased was moved to temporary alternative accommodation within the block during this work. The Claimant could not prove in lifetime that the installation of a central heating system involved any disturbance to asbestos containing materials.

The Claimant’s case was that the deceased was very house proud and each year he cleaned and decorated the walls and ceilings of the flat. The judge heard that the deceased had stripped the wallpaper.  He had sanded the walls in preparation to receive fresh wallpaper.  The ceilings were wiped and sanded and any mould was wiped and treated. There was some sanding down and preparing of surfaces but this was done for short times.

The Claimant’s case was that these combined tasks, usually in a short period of time, released a lot of fibres. This work and gave off levels of dust which caused the mesothelioma. However despite calculating the time spent on these different processes the court did not accept that the defendant was in breach of the law. The defendant had a duty to the claimant to take reasonable could care to ensure that he was not exposed to a foreseeable risk of asbestos injury.

The Findings

The judgment said that the defendant was under no duty to remove all asbestos from the flats. The experts that were used agreed that the presence of asbestos did not of itself mean there was a risk of exposure to asbestos fibres.

The defendant had a duty to ensure tenants were protected if works were carried out which could disturb asbestos. They had done by moving the deceased to a separate flat in 1987/88 during renovation heating work.

The fact that a tenant would clean and decorate the flat annually did not raise the bar for the defendant to do more to remove asbestos from the flat.

This judgement did not comment on or make provision for more recent stringent standards being applied. The issue of there being no safe minimum level is not addressed in the judgment.

The trial judge found that the late Mr Lugay was not exposed to a level of asbestos fibres in the flat above background levels.The exposure did not reach established and law based levels. In respect of the knowledge of the risks the court referred to a case of Williams. It also referred to legal guidance in TDN 13 and EH10 documents.

The High Court in London heard the case but the judge dismissed the claim. In his judgment he found that there was no significant risk of exposure to asbestos fibres from the presence of asbestos materials unless they were disturbed.

The case is one of two recent failures. The other case – Bussey also failed but permission has been given to appeal the case on a point of law.

Case Comment

Howard Bonnett, Director and Manager of Corries Asbestos team commented.

“This case once again shows a very clear hardening by the courts in relation to mesothelioma victims. We are seeing larger numbers of mesothelioma victims like this one. The cancer can be caused by the smallest exposure and from contamination from the environment. This is a battle that will rage on. It is clear that mesothelioma victims may not get the justice they deserve.

It seems that the late Mr Lugay was a very diligent man who cleaned and decorated his flat regularly. However his hard work did not prove his case to satisfy the court. This is particularly disappointing when you consider he lived in the flat right up to 2012.

There is no safe level of asbestos exposure. This is known now more than ever yet the courts still apply such stringent hurdles to a claim. I hope the appeal in the Bussey case may provide fresh hope in this and other cases”

A Change In the Way Mesothelioma Victims are treated

Howard continued

“It strikes me very clearly that this state of affairs cannot go on. There has to be a proper recognition for mesothelioma victims where they cannot sue an employer. They suffer the same pain. That they get no compensation is a shocking indictment of the UK in 2017.

If the courts cannot approach these cases more humanely then I suggest extending the Diffuse Mesothelioma Payment Scheme. For victims this seems to me a sensible, cost effective and above all, fair, way of making sure sufferers and their families do not go through this awful condition without proper recompense.

The scheme was set up in 2014 to pay compensation for workers who could not trace their former employers of their insurers. It has paid out on many cases. However because not all victims know or have claimed compensation then payments have been less than projected.

I call on the government and the opposition to pick this up and to seek to extend the scheme. The costs for the additional people would be modest and would be covered by the tariff set on EL policies when the scheme was first envisaged. That tariff has lowered since the scheme started in 2014 and has been a windfall to the insurance industry. Perhaps now would be the time to put that right.