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Asbestos liability/responsibility advice

Discussion in 'Trade Talk' started by Eldodgerino, 31 Oct 2014.

  1. Eldodgerino

    Eldodgerino

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    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
     
  2. NotSoNewboy

    NotSoNewboy

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    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)
     
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  3. Eldodgerino

    Eldodgerino

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    Thanks for the response Newboy - much appreciated

    .

    Thanks for the advice so far - really appreciated
     
  4. NotSoNewboy

    NotSoNewboy

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    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?
     
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  5. Eldodgerino

    Eldodgerino

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  6. FiremanT

    FiremanT

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  7. Eldodgerino

    Eldodgerino

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    Thanks FiremanT and Newboy.

    I am very grateful for the advice so far. :D
     
  8. NotSoNewboy

    NotSoNewboy

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    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" !
     
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  9. cajar

    cajar

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    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
     
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  10. Eldodgerino

    Eldodgerino

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    Thank-you Cajar, excellent post.

    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.
     
  11. Norcon

    Norcon

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    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.
     
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  12. Lower

    Lower

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    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.
     
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  13. cajar

    cajar

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    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.
     
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  14. Eldodgerino

    Eldodgerino

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    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
     
  15. Eldodgerino

    Eldodgerino

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    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
     
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