Corus UK Ltd v Cavendish (UK) Ltd & Ors

A contractor is not liable merely because asbestos remains after remedial works where the contract contemplated competent encapsulation of residual material and the works were carried out competently. A later problem caused by uncontrolled third-party works does not establish that the original works were defective. A negligent-misstatement claim requires proof of an inaccurate or misleading statement. Where residual asbestos was required to be labelled and managed, failure to implement an appropriate management system may give rise to constructive knowledge for limitation purposes.

The claimant engaged the first defendant as main contractor and the third defendant as asbestos-removal subcontractor for works at an administration building. The original method proposed total removal of the asbestos-coated ceiling, but the parties adopted wet stripping and encapsulation after practical difficulties arose. The works were completed in 1997.

Asbestos debris was discovered in 2007 after later uncontrolled cabling works in the ceiling voids. The claimant alleged breach of contract, negligence and negligent misstatement, and sought remedial costs. The trial was confined principally to liability, with limitation also argued.

1. Claim dismissed. Neither defendant was liable on the pleaded case.
2. The contractual arrangements contemplated complete removal of the asbestos-coated ceiling, with encapsulation and labelling of overspray and residual material. The revised wet-stripping method was a reasonable response to the difficulties encountered. The evidence established that the works were competently performed, that more than 99 per cent of the original asbestos had been removed, and that the residual material had been encapsulated.
3. The asbestos debris found in 2007 was most likely caused by uncontrolled cabling and other works carried out in the intervening period. It did not come from the lower surface of the Expamet ceiling. The 2007 condition therefore did not demonstrate defective asbestos-removal works in 1997.
4. The negligent-misstatement allegation failed. The claimant had not proved that statements about the revised method guaranteed the removal of every trace of asbestos or an entirely asbestos-free structure. In the circumstances, the relevant participants would have understood that residual, encapsulated traces might remain.
5. The judge considered, but did not need to determine, whether the works had caused physical damage. He indicated that whether work caused such damage was a question of fact and degree, and that the evidence would not have supported a finding of damage in the relevant sense.
6. Had liability been established, the contractual claim against the first defendant was statute-barred. Proper implementation of the claimant’s asbestos-management obligations would have revealed the condition of the relevant areas before proceedings were commenced.