Asbestos liability/responsibility advice

[Eldodgerino]

I am a small independent builder and undertake renovations, extensions and other small building works.

My question is one of liability.

I undertook a garage conversion not quite 8 years ago. The property was a domestic house that was developed, by me for the client, into a Bed and Breakfast. The garage was the last part of the job and was to be a disabled access accommodation.

Recently the now bed and breakfast owner has had some more building work done. I believe in the process the new contractors have discovered asbestos in the garage ceiling. Because of this she has had to get the false ceiling removed and the asbestos removed. Because of the asbestos work she has had to not rent out the room and would now look to seek compensation from me because I did not identify the asbestos initially.

Is this my responsibility and am I liable for costs incurred by the BnB owner?
As a commercial property owner should she have had an asbestos survey done prior to the property being developed?
Should I seek compensation for working in an environment with asbestos?
Should the building control officer have picked up the asbestos on his/her initial visit?
Does the BnB owner need to have an asbestos policy in place as it is a commercial property?

Thank you in advance for any advice you can offer peeps

 

[Newboy]

I'm trying to understand why she feels that you should be identifying the ACMs present in the building.

When you did the work originally:

Did you access the area?
Did you disturb the ACM?
Why is it necessary to remove the ACMs now? (Given that HSE advice is to leave in situ and manage rather than remove)

This link may be useful. http://www.hse.gov.uk/asbestos/building-owner.htm

It might be worth exploring her responsibility to have an asbestos survey done before the conversion into a commercial property.

Not trying to be clever but I'm surprised you weren't aware of the ACMs on the original job - it might be worth you looking at some of the HSE resources available online (no charge)

 

[Eldodgerino]

Thanks for the response Newboy - much appreciated

I'm trying to understand why she feels that you should be identifying the ACMs present in the building.
As I see it she has lost revenue and wants someone to stump up the short fall. I (we) are her first attempt to claim something back. She was a nightmare customer, always delaying payment for agreed stages etc.

When you did the work originally:

Did you access the area? -
Access or assess? We had access, but assess interms of asbestos survey -
No. I am not certified to carry out a survey.
Did you disturb the ACM? -
Possibly - I don't remember any being present. Is that a contractors responsibility to identify existing asbestos? As I recall there was existing plasterboard, which is most probably the asbestos. We counter batoned the ceiling for a service void and plasterboarded over. Building control did not bring it up in there initial site survey.
Why is it necessary to remove the ACMs now? (Given that HSE advice is to leave in situ and manage rather than remove) -
I am not sure as I haven't been to see the consequent work. I agree, why remove now as is between floors and best left alone.

This link may be useful. http://www.hse.gov.uk/asbestos/building-owner.htm
Cheers

It might be worth exploring her responsibility to have an asbestos survey done before the conversion into a commercial property. -
Agreed. Feel this is a good avenue of pursuit. I know the law was changed in 2012 as I don't think it was a legal requirement beforehand.

Not trying to be clever but I'm surprised you weren't aware of the ACMs on the original job - it might be worth you looking at some of the HSE resources available online (no charge)
You may know that some asbestos board looks very similair to plasterboard which I am sure is the assumption we made. It was 2006.

.

Thanks for the advice so far - really appreciated

 

[Newboy]

My gut feel is to not enter into lengthy communication with her.

Simple response - reject her claim.

The difficulties you may face are that it's your responsibility to ensure that you assess the job and ensure that you don't make assumptions about materials - if in doubt stop and seek advice.

What plans did you work to on the conversion?

Are you a member of any trade organisation?

 

[Eldodgerino]

My gut feel is to not enter into lengthy communication with her.
She has been very keen to achieve contact - even engaging one of her fellow members of the chamber of commerce to do some pathetic snooping inorder to establish we are still in business.

Simple response - reject her claim.
How should I communicate this?? "Its not my repsonsibility" "You're at fault here, you have a lawsuit on your hands'.

The difficulties you may face are that it's your responsibility to ensure that you assess the job and ensure that you don't make assumptions about materials - if in doubt stop and seek advice.
As a contractor is it my reponsibility to assess the site for harmful chemicals etc?

What plans did you work to on the conversion?
There must have been structural calcs but nothing else as no planning required

Are you a member of any trade organisation?
No. Though she has threatenend to go to trading standards already

 

[FiremanT]

Is this my responsibility and am I liable for costs incurred by the BnB owner?

My gut feeling is NO

As a commercial property owner should she have had an asbestos survey done prior to the property being developed?

YES

Should I seek compensation for working in an environment with asbestos?

Probably NOT. YOU should have asked if there was asbestos present, and to view the survey

Should the building control officer have picked up the asbestos on his/her initial visit?

Not necessarily, but he should have observed lack of survey (I would have thought)


Does the BnB owner need to have an asbestos policy in place as it is a commercial property?

Don't know

Thank you in advance for any advice you can offer peeps

 

[Eldodgerino]

Thanks FiremanT and Newboy.

I am very grateful for the advice so far.

 

[Newboy]

The second table in this link makes it very clear that she is the 'dutyholder' as far as asbestos related matters are concerned.

http://www.hse.gov.uk/asbestos/duty.htm#who

Quote from the page

"How do dutyholders comply?

There are four essential steps:

1.find out whether the premises contains asbestos, and, if so, where it is and what condition it is in. If in doubt, materials must be presumed to contain asbestos
2.assess the risk from asbestos present in the premises
3.make a plan to manage that risk and act on it
4.provide this information to other employers (eg building contractors) who are likely to disturb any asbestos present, so that they can put in place appropriate control while the work is being done.

As far as rejecting her claim I would keep it simple

"Regarding your recent communication I reject your claim" !

 

[cajar]

couple of points here.

the property did not become a non-domestic property until you had completed your work to convert to a b&b, so she may not have had duty holder responsibilities at that time.

its possible she had a survey done to compile her asbestos register for the property. interesting if this is the case because if it was found by a licensed asbestos surveyor you can point out special tests were required to identify which you don't have.

you were not asked to survey for asbestos, at best your liability would be restricted to dust released at the time when cross battening the ceiling. however if you didn't believe it to be asbestos at the time, I don't think you are liable for dust released. she would have to prove you knew at the time in order to go down that road. asbestos cannot be verified by visual inspection alone, only by lab tests, and it can only be suspected if one knows the age of the material and previous uses.

as above, less you say to her the better

 

[Eldodgerino]

Thank-you Cajar, excellent post.

the property did not become a non-domestic property until you had completed your work to convert to a b&b, so she may not have had duty holder responsibilities at that time.

The garage conversion was the last part of the job and by this time the BnB was operational as customers were present, even before we started the conversion. So, as I see it the property had become 'commercialised' by that time. Does that sound correct?
I think, referring back to the table Newboy refers to on the HSE page the garage would come under storage area so would need to have been assessed.

If she did have a survey done, which I very much doubt, then she should have been made aware that asbestos was present if it was found. Not informing contractors of this I think is pretty serious.

You are absolutely correct - I was not asked to survey for asbestos and did not identify any present.

I really would like to go down the non/minimal communication avenue but don't feel that is possible. As I said she has sent someone out snooping for her. She has also threatened me/us with trading standards.

If she wants compensation I can't see it fair I stump up for the asbestos removal bill as this would have been her cost at any rate if it was identified initially.
If she wants recompense for lack of earnings then also the BnB would have had to have stopped trading for a time when the asbestos was first discovered.

 

[Norcon]

This loss of business she claims has only occurred since the new contractors started work so I don't see how you can be blamed.

 

[Lower]

I was not asked to survey for asbestos and did not identify any present.

I really would like to go down the non/minimal communication avenue but don't feel that is possible. As I said she has sent someone out snooping for her. She has also threatened me/us with trading standards.

If she wants compensation I can't see it fair I stump up for the asbestos removal bill as this would have been her cost at any rate if it was identified initially.
If she wants recompense for lack of earnings then also the BnB would have had to have stopped trading for a time when the asbestos was first discovered.

I can understand why you're worried about this but you have no liability here what so ever.

You weren't asked to survey for asbestos, nor (i assume) are you qualified to detect it. It is her property and the asbestos is entirely her responsibility.

Any loss she has now suffered is entirely her responsibility.

If you feel the urge to respond to her letter simply deny any responsibility and make it clear that she is the duty holder under regulation 4 of the control of asbestos act 2012.

If you feel the urge to be a bit more aggressive, threaten to report her to the HSE for not making a asbestos survey available to you at the time of work. The HSE are being quite aggressive on this at the moment as they are self financing and can fine you for not having a survey available.

Further more, threaten legal action to recover costs if it becomes necessary to defend yourself against any action on her part.

A solicitor might write a letter on her behalf, but it will purely be a case of her trying it on.

 

[cajar]

as far as I know, it's your responsibility to ask for the asbestos register, she only has to make it available.

so it's worth trying to remember if you did ask her at the time.

really need a blacklist of customers tbh as this is despicable behaviour.

 

[Eldodgerino]

This loss of business she claims has only occurred since the new contractors started work so I don't see how you can be blamed.

I drove past today and there is a fleet of different trade vans outside so work is still going on. I can't imagine she would be filling up the orginal five or so rooms whilst so much work is going on now.

I think she has suffered a loss due to her new investment in extending the property and wants a hand out. I am her first port of call.

Cheers Norcon

 

[Eldodgerino]

I can understand why you're worried about this but you have no liability here what so ever.

You weren't asked to survey for asbestos, nor (i assume) are you qualified to detect it. It is her property and the asbestos is entirely her responsibility.

Any loss she has now suffered is entirely her responsibility.

If you feel the urge to respond to her letter simply deny any responsibility and make it clear that she is the duty holder under regulation 4 of the control of asbestos act 2012.

If you feel the urge to be a bit more aggressive, threaten to report her to the HSE for not making a asbestos survey available to you at the time of work. The HSE are being quite aggressive on this at the moment as they are self financing and can fine you for not having a survey available.

Further more, threaten legal action to recover costs if it becomes necessary to defend yourself against any action on her part.

A solicitor might write a letter on her behalf, but it will purely be a case of her trying it on.

Cheers Lower, thanks for your post. Given me back some.

I/we have only communicated via phone so far - I feel I need to get her demands down in writing. She wants to meet as she would like to settle before having to take legal action. I feel more and more the law is on my side and the responsibility/ liability is with her - the property owner/duty holder.

I have a few courses of action I believe:
1: Ignore her and hope for the best. Unlikely to succeed as she has been persistent in making contact
2: Meet with her and let her tell me what she expects from me in terms of compensation and why and then decide on my next course of action. Probably advising her of her liability under 2012 Act.
3: Ask for her demands in writing and make it official. Then reply with HSE guidelines.

Thanks again