The screw tightens on asbestos regulations

Does your business own, manage or operate from any building constructed before 1986? Failing that, do any of your employees carry out work in any such building? If not, then you’re in the lucky minority, says Simon Chandler.

At 3,000 deaths per year, and with an expected peak of 10,000 deaths per year by the year 2010, asbestos-related disease is the single greatest workplace killer in the UK. Current expert medical opinion is that the breathing in of just a single fibre may be enough to trigger the terminal cancer, mesothelioma. The disease has a gestation period of anything between 10 and 60 years, and once contracted, is not exacerbated by further exposures to asbestos (unlike other asbestos-related diseases).

In 1985 the most hazardous types of asbestos (blue and brown) were banned from use in the UK. Use in all but a handful of highly specialised products was ended in 1999. Up until that time this naturally-occurring inert mineral had been used in a startling variety of products for over 100 years, from brake linings to children’s crayons, even – apparently – as artificial snow on film-sets.

The use of asbestos in buildings was widespread, especially between 1950 and 1980. Typically, this was for thermal insulation; as a fire-retardant around structural steelwork, pipes and boilers; and in a variety of cement products, including roofing. Undisturbed and in good condition these materials made buildings safer and more comfortable to work in. But beneath this apparent comfort lurked – and still lurks – a killer. Damaged by drilling, cutting or sawing, or just through deterioration with age, tiny but deadly asbestos fibres are released.

The dangers of asbestos are generally well known. This article is about two significant changes to the law in this area – the first has just happened, the second is impending. Together, if ignored, they have the capacity to destroy a business.

Fairchild v Glenhaven

On 20 June the House of Lords gave judgment in the case of Fairchild v Glenhaven. The case involved three separate test cases of workers who had contracted mesothelioma by breathing in asbestos dust at work. Two of them died in 1996 and their claims were pursued by their families; the third, Mr Matthews, had only months to live at the time of the court hearing.

The legal significance of the case arises out of the combination between the characteristics of the disease itself and the history of the men’s employment. Each of the workers had been exposed to asbestos over several decades when working for more than one employer. In each case, it was either admitted by the former employer, or could be proved, that the men had been exposed to an unacceptable level of asbestos dust in breach of their employers’ duty to protect them.

In evaluating such claims, the law tests the causal connection between the alleged breach of duty by the employer and the injury complained of, before awarding damages – the so-called ‘but for’ test. In other words, the worker must prove on the balance of probabilities that, but for the employer’s breach of duty, he or she would not have contracted this fatal disease. In these cases, it was impossible for Mr Matthews and his fellow sufferers, because of the limitations of medical science and the multiple exposures to asbestos during their careers, to prove precisely when the particular asbestos fibre which triggered the disease was inhaled, and therefore to which period of employment the injury related.

Instead, it was argued on their behalf that as each of the former employers had negligently exposed the individual to an increased risk of the disease, each should be made liable even if the exact cause could not be proved. For the employers it was argued that the strict causal test must apply, otherwise a single employer which had employed an individual for, say, one week or less, and perhaps as long as 40 years ago, would be made liable for the consequences of a disease which could have developed as a result of exposure during any part of the individual’s entire working life.

The Court of Appeal had unanimously rejected all three claims, applying the conventional causation test. Their reasoning was as follows:

‘If we were to accede to the Claimants’ arguments, we would be distorting the law to accommodate the exigencies of a very hard case. We would be yielding to a contention that all those who have suffered injury after being exposed to a risk of that injury from which someone else should have protected them, should be able to recover compensation even when they are quite unable to prove who was the culprit.'

The House of Lords, though, unanimously reversed that ruling and awarded damages against the surviving employers and their insurers. They addressed what the Court of Appeal had seen as the unbridgeable evidential gap in the following way:

‘The concepts of fairness, justice and reason underlie the rules which state the causal requirements of liability ... The purpose of the causal requirement rule is to produce a just result ...’

‘... such injustice as may be involved in imposing liability on a duty-breaking employer in these circumstances is heavily outweighed by the injustice of denying redress to a victim.’

So, while acknowledging some rough justice for employers, the Law Lords justified their decision on the basis that it was the least unjust outcome. The message could not be clearer: where asbestos disease is involved and there has been breach of duty by an employer, however long ago and for however short a period, the Court will bend over backwards to find a way of compensating victims, even if that means ignoring, adapting or over-riding long-established legal principles.

The new duty to manage

Since the 1970s a plethora of legislation and regulations have been passed to deal with this hazard. Most notable are the Control of Asbestos at Work (CAW) Regulations 1987, which were designed to prevent exposure to asbestos in the workplace, not only for the employer’s own workforce but for other workers and members of the public. The 1987 Regulations were amended in 1992 and again in 1998, each time introducing stricter requirements. Some time later this month a junior minister is due to wield his pen and the regulations will be tightened again.

The CAW Regulations 2002 will impose a new duty to manage asbestos. For the first time, employers will have a specific legal duty to take active steps to identify asbestos-containing materials (in the jargon, ACMs) in their buildings. Once identified (and laboratory testing will often be needed because ACMs are difficult to identify, even to the trained specialist) the condition of the materials must be assessed and an action plan drawn up and followed through in order to minimise the risk of asbestos fibres being released and breathed in.

The identification exercise will be done either by engaging a specialist surveyor to take a sample of materials for analysis, or by using other strong evidence – proof of the age of the building, for example, and/or of the actual materials used in its construction/refurbishment – to show that the building is free of ACMs. This information must then be recorded in a form which ensures that it gets to all those who may be subject to a risk of exposure – in other words, not only to the company’s own employees who work in the building, but also to any outside contractor or member of the public who may come onto the premises.

If the ACMs are in good condition and are unlikely to be damaged or disturbed, they will pose no risk and may be left in place. In some instances they may be sealed, provided the seal is then checked periodically. In cases where ACMs are in poor condition and remedial steps are impractical – whether for cost or operational reasons – then removal and safe disposal will be necessary. Stringent conditions and procedures are prescribed at each stage of this process. For example: which individuals and organisations are accredited and licensed to conduct surveys; which contractors are able to remove materials; and where ACMs may and may not be disposed of.

Implications

If any part of your business is in the construction (especially demolition), maintenance or waste sectors, then it is at high risk and particular care must be taken. However, every business which owns, occupies or has responsibility for the maintenance of a non-residential building will need to take active steps to comply with the new regulations. Here are five specific recommendations to which companies are advised to pay attention:

1. Start early to ensure compliance. Although the new regulations have a lead-in time of 18 months and there will not be enforcement action (in other words, prosecutions) by the Health and Safety Executive until Spring 2004, the exposure to claims already exists and the new regulations are only implementing what is already best practice. Further, given estimates of the number of buildings falling within the Regulations and of qualified specialist surveyors, there may well be insufficient time and resources for all building surveys to be completed by 2004. Those coming late to this task will either have to pay a substantial premium to get the work completed in time, or presume for the purposes of the Regulations that the building is full of ACMs (which will make subsequent operation and maintenance highly problematic and expensive), or default and run the risk of enforcement action (which includes the risk of imprisonment).

2. Choose the surveyor and any contractor very carefully – this is not a job for white van man. The HSE maintains a list of licensed contractors, and the United Kingdom Accreditation Service (UKAS) has accreditation schemes for those qualified to carry out surveys and, separately, laboratory-testing. Those properly qualified (and properly insured) to carry out this hazardous work will charge significantly more than others who take a more relaxed approach. Resist the temptation to go with the less reputable option – it will probably cost your business dear, sooner or later.

3. Safety Representatives and Facilities Managers should be made aware quickly, if they are not already, of the practical implications of the new CAW Regulations. HSE seminars and presentations (which are free) have already commenced and will intensify during the autumn months. Details of these, plus free authoritative literature, are available via the HSE website (details below).

4. The continuity and integrity of record-keeping will be key to demonstrating compliance with the Regulations, and protecting the business from subsequent claims. In particular, consideration should be given to establishing a robust system to ensure that visitors to the premises (such as building contractors, telephone engineers, IT operatives and other service providers who may disturb the fabric of the building) have been made aware of the relevant ACMs survey and comply with any necessary precautions in carrying out their work. Conversely, employees should be briefed about what to look for and what precautions to take if and when they need to go into others’ premises in the course of their work. Where possible, compliance with CAW Regulations should be raised at the pre-contractual stage and stipulated in any contract, with clear division of responsibilities.

5. Particular care will need to be taken when relevant insurance policies are being renewed. Asbestos claims (mainly from North America) almost brought the UK insurance industry to its knees in the early 1990s. The Fairchild case and the new CAW Regulations have again highlighted this issue for insurers (it had never gone away). Questions related to compliance with the new duty to manage will soon be appearing on proposal forms at renewal. Failure by the appropriate director to make the necessary enquiries, alternatively failure to ensure that the Regulations are complied with at all levels in the business, may well lead to policy coverage problems once a claim emerges and those details are scrutinised.

6. Asbestos in not-very-old buildings is a massive problem. Properly managed it is a problem which businesses, even if exposed, can overcome with minimal risks even though the costs may be significant. In the past, the absence of adequate records may have allowed lax employers to escape liability: the combination of the Fairchild ruling and the new Regulations means that this will no longer be the case.

Useful links

For information on the Health and Safety Executive’s asbestos campaign, log on to the HSE website at www.hse.gov.uk./asbestos/index/htm. Commentary on Fairchild v Glenhaven can be found online at: www.law-now.com/law-now/press.cfm?id=4543. The Fairchild judgment itself can be found at: www.publications.parliament/pa/ld200102/ldjudgmt/jd020620/fchild-2.htm.

For further information please contact Simon Chandler at [email protected] or on +44 (0)117 930 7816.