Microsoft word - realty web publications - toxic mould rev a.doc
• Mould is a fungus that grows as a mass of microscopic threads with small lollypop like spore-producing bodies. It is
present everywhere in the indoor and outdoor environment and has been in existence for millions of years.
• Mould spores are abundant in the air, so they can easily infect and decay damp materials, or cause plant or animal
• Mould produces both useful and poisonous chemicals, e.g. the antibiotic penicillin and the poison aflatoxin.
• Toxic mould describes moulds capable of producing mycotoxins. Mycotoxins are chemicals made by mould that
may be harmful to living organisms upon ingestion, inhalation or skin contact. The term ‘toxic mould’ has come to be used more broadly to describe all moulds that may produce adverse health effects.
• To grow, mould needs a readily available food source, undisturbed water and time. Mould can grow from a variety
of moisture sources, such as leaking pipes, windows and roofs. Inadequate ventilation, airtight construction to promote energy efficiency and inadequate drying of flooded areas can all lead to mould growth.
• Scientists have identified more than 100,000 species of mould, of which the vast majority are not harmful to
• Fungal spores containing mycotoxins may cause allergic reactions, toxic effects and infections.
• Allergic reactions – the most common symptoms of allergic fungal reactions are eye irritation, cough and
aggravation of asthma. None of these effects are usually life-threatening or incapacitating and will usually abate if the exposure ceases or with seasonal changes
• Toxic effects – mycotoxin concentrations in the air must reach toxic levels before illness occurs. Mycotoxins can
cause acute illness if ingested, e.g. on rotting peanuts.
• Infections – these can be severe and are difficult to treat with conventional medicines. Such infections, e.g. lung
infections, are uncommon amongst people with normal immune systems.
• Mould results from the presence of water that does not evaporate quickly. It can occur wherever there is water
intrusion. The water intrusion does not have to be severe and mould can grow from a single event, e.g. flooding, storm damage, plumbing leaks, sewage back-ups or faulty construction. Even high humidity, due to faulty venting, is enough to cause mould growth.
• Mould can live on a wide variety of construction materials including wood, wall board, ceiling tiles, fibre glass
insulation, concrete, wallpaper, fire-proofing and adhesives.
• There are numerous theories to explain how mould claims started.
• One theory is based upon the energy crisis the US experienced in the 1970’s. The desire for greater efficiency in
energy consumption led to the construction of more energy-efficient buildings. These structures were often fitted with sealed windows and required central heating and air-conditioning systems to closely regulate the amount of outdoor air that was permitted to circulate in the buildings. Additionally, the materials used in the construction of these structures included gypsum wall board, stucco and wall coverings, all potentially trapping air and moisture inside, whilst also serving as a tasty menu for mould.
• Another viewpoint is that the increased volume of mould claims was in response to two jury verdicts handed down
against insurers in 2000 and 2001. The cases were tried in California and Texas and involved bad faith claims handling. The US$32m award in the Texas case involved a home owner who alleged that Farmers Insurance Group had failed to respond to a water damage claim, which resulted in the spread of toxic mould throughout her house; it had to be demolished and rebuilt. The award against Farmers comprised US$6m damages, US$12m punitive damages, US$5m for mental anguish and US$9m in legal fees. In this case the liability was proven because the insurer hid an environmental hygienist’s report on the home owner’s property.
• The California case was settled for US$18m, although the average payout for mould-related claims in the USA is
• Mould claims typically arise after water loss at a home or commercial building. Mould growth is often discovered
after the suspected water source is repaired and frequently occurs in these circumstances because the water source has not been fully repaired, or there remain other water sources not previously identified.
• Another reason why mould growth may occur is that the response to the water intrusion was untimely. Given the
right temperatures, mould reportedly can begin growing if the water is not removed within 48 hours. Further, where substantial mould growth is discovered, treating the mould on certain surfaces with bleach may not be effective. Instead, where porous materials are involved, removal of the affected property, including walls and flooring, may be required. Thus mould remediation can be quite costly.
• Insurers in the US are opposing unscientific bodily injury causation testimony.
• Claims handlers are responding to water damage claims much more promptly.
• Most insurers have responded to mould claims by adding endorsements to exclude or limit coverage for mould.
• Rate increases have been imposed, reportedly as high as 200% in Texas.
• Reinsurers have excluded the availability of cover to primary insurers. Insurers are most concerned about the
development of closed and open claims files involving property damage, where toxic mould exposure could still become an issue.
• The majority of the claims in the US occur in Texas, Florida and California, due to the hot and humid climates.
• Climatic conditions in the UK are obviously very different, but cold weather and energy conservation have promoted
the construction of airtight buildings in the UK that, when exposed to moisture, are conducive to mould growth.
• Insurers are vicariously responsible for the competence or negligence of their contractors under, for example,
• The development of tort law in the UK in the last decade has left most homeowners with no cause of action against
designers and builders for building defects that permit mould to grow, once more than six years have elapsed from the date of the relevant works. The most likely target for claims will, therefore, be landlords (to tenants) of properties that are not let on repairing leases.
• Employers are liable for exposing employees to any substance hazardous to health under the UK Control of
Substances Hazardous to Health Regulations 1999 (COSHH).
• Research by the Royal Institute of Chartered Surveyors has suggested that toxic mould is present in 25% of UK
• Increased frequency and severity of flooding in the UK, coupled with the lack of adequate spending on flood
defences, means that it is perhaps only a matter of time before mould litigation spreads to the UK. Costs of surveying and removing toxic mould are likely to be significant. Whether landlords or insurers pay for the clean up of commercial buildings could well become a source of conflict.
• Law firms such are Reynolds Porter Chamberlain and Davies Arnold Cooper are actively warning insurers to write
exclusion clauses for toxic mould into their policies.
• Damage to domestic buildings by mould has been routinely excluded from UK property policies since long before
the onset of toxic mould claims in the USA
• Until recently, no specific toxic mould exclusions have attached to commercial buildings or liability policies in the
UK, but these are now being pushed through by reinsurers and at the last renewal of Grosvenor’s insurance programme were successfully resisted for one more year.
• Insurers have not yet experienced a mould claim in the UK and hence not tested in court whether they could
successfully decline a toxic mould claim, whether it is for latent damage or health issues.
• Commercial buildings have traditionally had exclusions relating to damage by gradually operating causes and
insurers may attempt to rely on these to avoid a claim.
• Liability policies have pollution exclusions (unless sudden and unforeseen) and, again, insurers would most likely try
to rely on this to avoid a claim, although this would be difficult because mould would have to be characterised as a product or substance to fall within the typical policy definition of pollution.
• It is not expected that mould will become the next asbestos. Exposure to asbestos causes serious illness, including
cancers that can be traced to inhalation of asbestos fibres. Moreover, the cause and effect of exposure to asbestos has been demonstrated by extensive valid scientific evidence.
• No such biological evidence exists to link illness to mould
• Mould and asbestos also differ in that symptoms from asbestos exposure can take decades to appear. There is no
long-term latency associated with mould. This allows people suffering from mould sensitivity to remove themselves from the affected area. Without the latency period, fewer people should become ill and there is less of a chance that more serious illness will develop.
• As long as businesses take a common-sense approach to mould prevention and treatment inside buildings,
including good building maintenance, ventilation and cleaning regimes, it is hoped that the situation will be kept under control.
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