Lugay v London Borough of Hammersmith And Fulham

In a mesothelioma negligence claim arising from asbestos in rented accommodation, the claimant must prove duty, breach, a material increase in the risk of mesothelioma, and recoverable loss. The mere presence of asbestos-containing materials does not ordinarily create a material exposure risk. A landlord need not remove all asbestos or prohibit all works, but must take reasonable steps to protect tenants where works may disturb asbestos, including warning against such works. Liability fails where the claimant cannot prove exposure above background levels, negligent disturbance, or causation. The court must assess foreseeability and reasonable precautions by reference to the knowledge and standards of the time.

The claimant, the personal representative of Frederick Lugay’s estate, sought damages under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976. Mr Lugay had lived in a council flat containing asbestos materials and later developed mesothelioma, which accelerated his death by four years.

The defendant accepted the mesothelioma and acceleration of death but disputed breach of duty and causation. The central issues were whether the defendant’s acts or omissions exposed Mr Lugay to asbestos fibres, whether that exposure was negligent, and whether it materially increased the risk of mesothelioma.

1. Claim dismissed. The claimant failed to prove that the defendant was negligent or that Mr Lugay’s mesothelioma was caused by occupancy or use of the flat.
2. Although the claim was pleaded under the Landlord and Tenant Act 1985, the Defective Premises Act 1972 and the Occupiers’ Liability Act 1957, the agreed evidence established that the mere presence of asbestos-containing materials did not cause exposure above background levels. A claim based on defect therefore failed.
3. For common-law negligence, the claimant had to prove: a duty not unreasonably to expose the deceased to asbestos; negligent breach causing a material increase in the risk of mesothelioma; and loss falling within ordinary remoteness principles. The defendant owed the relevant duty as landlord.
4. Foreseeability and reasonable precautions had to be assessed objectively by reference to the level of exposure, the defendant’s knowledge at the relevant time, the reasonably foreseeable risk, and the steps reasonably required to avoid it. There was no duty to remove all asbestos or prohibit all work. There was a duty to protect tenants where works risked disturbing asbestos, including by warning them against such works.
5. The central-heating installation was not proved to have disturbed asbestos-containing materials. The evidence also showed that Mr Lugay’s cleaning and decorating involved sanding walls and wiping mould, but did not rupture or materially disturb the textured asbestos coating on the ceilings. Any disturbance was de minimis and did not expose him above background levels.
6. Causation was therefore not established. The court assessed quantum for completeness, but no damages were awarded because the claim failed on liability.