It is the nightmare of every property owner: asbestos turns out to be present in the building, and during construction works, the asbestos is also spread... Is the contractor liable?
This question came up in appeal proceedings at the Arnhem-Leeuwarden Court of Appeal. The facts were as follows. A property owner had concluded a contract for services with a carpentry and maintenance company (hereinafter: the contractor). This simply meant that the contractor had to repair a leakage in the premises (built in 1980) as early as May 2013. The contractor then sawed out a section of a cove in the building above the suspended ceiling in order to make a blocked pipe accessible to another firm, which emptied the pipe and repaired the blockage.
All's well that ends well? Unfortunately not. Years later, in 2017, the property owner was told by the municipality that his building had been selected for a fire safety investigation. As part of this, it was found that there was asbestos in the building. Subsequently, an asbestos inventory study was carried out by an expert agency, which revealed that the building contained a high-risk situation in the form of loose remnants of asbestos or asbestos-containing dust.
The municipality wrote to the property owner, informing him that the asbestos had to be decontaminated and the asbestos contamination removed. This was done. The property owner then held the contractor liable for the costs of the clean-up and the indirect damage of the asbestos spread. According to the property owner, the contractor should never have simply cut a piece out of the cove, but should have first conducted an investigation into the composition of the cove's material. Because, the property owner argued, as a carpenter the contractor should have had knowledge of the structure of asbestos-containing materials and should have been alert to the possible presence of asbestos in buildings built before 1993.
The contractor indicated that the cove was not made of asbestos-containing material, and even if it was, he did not have to recognise that. The contractor also disputed that the asbestos spread was the result of his sawing activities.
An expert report - prepared at the request of the liability insurer (after the asbestos removal) - stated that 'the location and function purposes (a sewer pipe cove) are not logical for the use of materials containing asbestos'.
Judgment of the Court of Appeal
Legally speaking, the question is: did the contractor act as a good contractor, as a reasonably competent and reasonably acting professional would have done? This depends on the circumstances of the case.
According to the court of appeal, it has not yet been established that the cove, in which sawing had taken place, contained asbestos-containing material at all and that it was this asbestos-containing material that ended up in the building at the places mentioned by the expert agency in the report.
It was also established that the photograph, which according to the property owner clearly shows asbestos-containing material, was not taken at the place where the contractor had cut. The court of appeal ruled, like the district court, that even if there was asbestos-containing material in the building, the contractor was not to blame.
The property owner blamed the contractor for not being allowed to saw into the cove without prior investigation of the material, because the contractor knew or could have known that it contained asbestos. The Court of Appeal is of the opinion that if the contractor knew or could have known that asbestos was incorporated in the cove, he would have acted negligently towards the pledge owner by acting as he did. However, the property owner has insufficiently substantiated that the contractor knew or could have known this. The Court of Appeal considers the following circumstances important in this respect.
- The contractor was asked to solve the leakage. The contractor is a one-man business and an experienced carpenter, with no specific expertise in the field of asbestos. Although the property owner argued that the contractor had a high degree of expertise and submitted examples of construction projects in which the contractor had worked and from which this would follow, the contractor adequately refuted this and argued, stating reasons, that also in those projects his role had been no more than that of an experienced carpenter.
- The contractor stated without contradiction that he did not know how old the building was or when the cove had been installed after the building had been constructed, so that this did not raise a suspicion of asbestos either.
- The contractor has also consistently stated, and there is no evidence to the contrary, that he sawed in a smooth grey sheet material, which was in a good condition and that he assumed a cement-bonded fire retardant material (eternit or menuiserite) whereby he did not need to suspect asbestos.
- The expert report submitted by the contractor provides sufficient substantiation that the cove around an indoor rainwater drain is not an obvious place for the use of asbestos, because asbestos was primarily used as a fireproof material. Therefore, the location of the cove did not automatically give rise to a suspicion of the presence of asbestos in the cove. The fact that asbestos-containing sheet is also sometimes used to cover rainwater drains, as argued by the property owner, does not alter this.
- Nor did the expert officer involved in the fire safety investigation identify the sheet material as containing asbestos.
In short: the contractor did not need to be aware of the presence of asbestos before he started sawing in the cove, even if there had been asbestos-containing board. The contractor did not act negligently and the property owner lost the case. The claims of the property owner were rejected. You can read the judgment here
This ruling gives direction to parties who want or have to litigate about the same issue. But beware: the standard of the 'reasonably competent and reasonably acting professional' is determined by the circumstances of the case. If the facts had been slightly different, or if the provision of evidence had been different, the contractor might have been liable. This judgment therefore does not provide complete certainty for similar cases.
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