Legalaid

The aftermath of asbestos

Until 1999 we were a service within East Sussex County Council; we are now a separate fire authority. In the late 1980s the council carried out a contract at the fire station to remove asbestos ceiling tiles and encapsulate sprayed amosite asbestos (used to fireproof steel framing). The asbestos ceiling tiles were replaced by a lightweight grid ceiling. The sprayed asbestos is all contained in ceiling voids.

Our asbestos survey in 2003 identified that some encapsulation was incomplete and the asbestos overspray was loose and required monitoring or managing. This condition of this work has since deteriorated and removal is now required; all ceiling voids are contaminated and their disturbance contaminates the area.

A detailed survey of the ceiling voids has also revealed that the original asbestos ceiling provided fire compartmentalisation – not only will this cause problems with the removal but we will need to provide fire breaks as part of the reinstatement works. The property does not currently comply with fire safety regulations.

The likely cost of these works is £250,000 and we would like to recover these costs. So our questions are:

• Have we a good case to pursue against the council or their contractors for poor specification, management and completion of the earlier removal works?
• Have we a good case to pursue for the lack of fire compartmentalisation?
• Who is liable for the costs of any staff, contractors, who have worked in the premises and who later contract asbestos-related diseases?

It is possible that the council might have a claim for breach of contract against the contractor that carried out the original asbestos works. However, as a general rule, only the parties to a contract may sue on it. Therefore, unless the fire authority has the benefit of a collateral warranty from the contractor or the contract for the asbestos work has been assigned to it, it cannot pursue a claim for breach against the contractor.

That said, even if the authority can establish a right to sue the contractor, such action is likely to be out of time, as a claim in contract must be brought six years from the date that the breach occurred, or 12 years if the contract is a deed.

It is also unlikely that the authority has a claim in negligence because the contractor may not owe a duty of care to the authority. The loss to the authority is “pure economic loss” and this type of loss is not recoverable.

Any remedies that the authority might have against the council depend upon how the authority was created and the terms of the transfer of the property, or any other rights, to it.

If any staff have suffered illness the staff will be able to establish that first the council and now the authority owed them a duty of care to prevent injury. Whether or not that duty was breached will depend on whether the staff can establishing negligence, and whether the council or authority can argue that they employed a reputable contractor to carry out the works.

In May 2004 the Control of Asbestos at Work Regulations 2002 came into effect. This imposed duties on “duty-holders”, which includes the authority, to carry out risk assessments and manage the risk of asbestos. Breach of these duties is a criminal offence.