Asbestos roofs — Maintenance work carried out by defendants for plaintiff lessees — Contamination — Damages to be assessed on basis of cost of remedial work — Evidence of plaintiffs’ intention to do work in 1995 — Damages based on cost of recladding at that date — Discount for payment in advance
This was an action for damages for breach of contract by the plaintiff lessees of buildings at Wythenshawe, Manchester, arising out of maintenance work carried out by the defendants pursuant to a contract dated March 31 1989. The damages claimed were in respect of the cost of rectifying asbestos contamination resulting from cleaning operations on the roofs of two buildings formed of corrugated asbestos sheeting. The defendants, through subcontractors, used high pressure hosing with no organised protection to remove moss and algae, which was attacking the roof. It was common ground that the defendants’ operations resulted in massive contamination of the buildings and the surrounding area by asbestos dust. That led to the service of prohibition notices under the Health and Safety at Work Acts and the plaintiffs thereafter had to carry out substantial and expensive decontamination work.
The Court of Appeal held that the defendants were in breach of the obligation to carry out the work in accordance with the specification and to achieve the standard specification; and had failed to comply with the requirements of the asbestos regulations in breach of contract. There was a probable inference that the defendants’ subcontractors had neither the experience and skill nor the equipment necessary to carry out specialist asbestos cleaning work contrary to the specification. The matter was referred to the Official Referee to assess damages.
Held The appropriate figure for damages was £665,572.
1. The measure of damages was that sum of money which would put the party who had been injured, or who had suffered, in the same position as he would have been if he had not sustained the wrong for which he was now getting his compensation or reparation: see Livingstone v Rawyards Coal Co (1880) 5 App Cas 25; Dodd Properties (Kent) Ltd v Canterbury City Council (1979) 253 EG 1335.
2. The most likely year was 2015 when recladding of the buildings would have been required if the defendants had not contaminated them. However, it was unreasonable that the plaintiffs should be required to wait until then before decontaminating the building.
3. There was evidence that the plaintiffs would allocate funds for the recladding work and put forward a reasonable proposal for the work to be done in 1995.
4. As a matter of law, the amount of the damages recoverable by the plaintiffs was not dependent on their doing the work. If they took the damages and then decided not to do the work, accepting all the risks and detriments involved, that was a matter for them: see Darlington Borough Council v Wiltshire Northern Ltd (unreported).
5. Accordingly, the damages for recladding should be calculated as equivalent to the costs of doing the work in 1995.
6. It would be impossible for the plaintiffs to replace an aging roof with a roof of similar age and it was in any event a detriment to the plaintiffs to have to lay out money to do the work in 1995 rather than in 2015. Therefore, there should be no reduction in damages for betterment: see Harbutt’s “Plasticine” Ltd v Wayne Tank and Pump Ltd [1970] 1 QB 447.
7. However, there should be a discount for payment in advance — a payment now of £665,572 would produce £713,827.71 in mid-1995.
John Uff QC and Alexander Nissen (instructed by Denton Hall, of Milton Keynes) appeared for the plaintiffs; Roger Ter Haar QC and Michael Kent (instructed by Beachcroft Stanleys) appeared for the defendants.
