whos liable . hypothetical

the_pen_turner

hypothetic from a Facebook trade group.
someone is claiming dyno rod were are a house doing an inspection of an upstairs waste pipe. somehow they damaged the ceiling either above or below.
dyno rod then noticed that there was asbestos in the ceiling and ran a test. upon conformation stopped the job until the area is made safe.

anyway the post is asking who is responsible for the asbestos removal and making safe
dyno rod are going to fix the ceiling but are contesting the asbestos part based on it being an underlying problem



I was wondering how would something like this play out in this country

Victor

the_pen_turner wrote: »

somehow they damaged the ceiling either above or below.

This is a normal risk run by any contractor and they or their insurance should pay.

dyno rod then noticed that there was asbestos in the ceiling and ran a test. upon conformation stopped the job until the area is made safe.

Depending on type, not all asbestos is a particular problem. Disturbing the more dangerous types is a problem, especially if in the form of dust or short strands that could be inhaled.

anyway the post is asking who is responsible for the asbestos removal and making safe dyno rod are going to fix the ceiling but are contesting the asbestos part based on it being an underlying problem

Unless the contractor was put on notice that there was asbestos, it would be considered unreasonable to expect the contractor to expect their to be asbestos in a ceiling (it would be reasonable to expect it in some other locations, e.g. an old boiler room). I think the householder would be responsbile

Does the egg shell rule apply to buildings?

the_pen_turner

I don't really know a lot about asbestos. so I will leave it alone. iv meant to do a identification course.
damage to the ceiling isn't really in question. the contractor is liable for that no matter what

I'm not familiar with the egg shell rule. is that kind of like collateral damage or unintended consequences.

some people are saying that the home owner would be liable because it was there before the contractor so it cant be their fault

others are saying that the problem only surfaced because of the damage to the ceiling and that the contractor caused both problems

Victor

the_pen_turner wrote: »

I'm not familiar with the egg shell rule.

https://en.wikipedia.org/wiki/Eggshell_skull

the_pen_turner

Victor wrote: »

https://en.wikipedia.org/wiki/Eggshell_skull

iv heard of that a few times.
its like if a thief goes u to someone and takes their wallet but the victim gets a heart attack and dies then its manslaughter even though the intention was no harm to the victim.


so would it apply to a building or work being carried out. I wonder

ohnonotgmail

the_pen_turner wrote: »

I don't really know a lot about asbestos. so I will leave it alone. iv meant to do a identification course.
damage to the ceiling isn't really in question. the contractor is liable for that no matter what

I'm not familiar with the egg shell rule. is that kind of like collateral damage or unintended consequences.

some people are saying that the home owner would be liable because it was there before the contractor so it cant be their fault

others are saying that the problem only surfaced because of the damage to the ceiling and that the contractor caused both problems

how can the contractor be responsible for something that was there before they arrived?

the_pen_turner

ohnonotgmail wrote: »

how can the contractor be responsible for something that was there before they arrived?

I agree. that's my opinion on it too.

but what they are saying is that the asbestos was perfectly safe until it was disturbed and that because the contractor disturbed it that it now needs to be removed and replaced

hullaballoo

It seems to me this would come down to the foreseeability of whether damaging a ceiling could give rise to dangerous exposure to asbestos and would turn on expert evidence in relation to the likelihood that there is asbestos present in the given construction.

It's not open and shut and is an example of why the law is never 100% one way or another. Before initiating any kind of proceedings, there would need to be an expert report that makes the claim stateable.

In essence, the "problem" was latent until the ceiling was disturbed. There could be some liability for the constructor who installed (if that's the right word) the asbestos initially, depending on all the circumstances.

NUTLEY BOY

ohnonotgmail wrote: »

how can the contractor be responsible for something that was there before they arrived?

Anticipation and or foresight in relation to reasonably foreseeable hazards inherent in their trade.

Whether or not it was actually foreseeable is very much a judgment that turns on the peculiar facts of the case.

Even if the specific contingency was not foreseeable liability can still attach if what arose was essentially similar in nature to what which was to be reasonably anticipated - see Hughes -v- Lord Advocate 1963. LINK http://www.bailii.org/uk/cases/UKHL/1963/1.html

BTW some liability insurers now exclude indemnity to their policyholders (the contractor in this case) in relation to asbestos related incidents. The household insurers might cover the damage and pursue rights over against the contractors. This is going to be messy because only authorised contractors are actually allowed to work on asbestos.

NUTLEY BOY

the_pen_turner wrote: »

I don't really know a lot about asbestos. so I will leave it alone. SNIP

+1. Don't go near it or disturb it.