Ignorance is not a defence
Disease Aware Issue 1
Three recent Health and Safety Executive prosecutions have highlighted an ignorance of the dangers of asbestos and continued exposure to asbestos in the construction industry. In the first of the three cases (HSE v Supply on Demand Ltd), the Managing Director of an Estate Management Company instructed one of his workers to dismantle an industrial unit with an excavator. This disturbed asbestos containing materials. The Managing Director had been advised by his District Council of his duty to manage asbestos prior to the work commencing. He failed to obtain or carry out an asbestos survey, despite having done so on other construction projects under his control.
In another case (HSE v Cowley's Building and Maintenance) a company was fined following its refurbishment of a public house. The owning brewery was also fined. Workmen discovered asbestos boards during the construction work. Samples were taken and work stopped. The building company's site foreman had ordered the workmen to clean up the debris from the boards, resulting in further exposure to asbestos on the site. The brewery had failed to arrange for an asbestos survey to be undertaken before the work commenced. There had been no emergency provisions or decontamination procedures which could have included provision of masks and the safe disposal of contaminated clothing.
The final case (HSE v Sherborne School & Peter Eldridge) saw a prosecution of a school and a building contractor employed to carry out extensive refurbishment work. Asbestos boards were located during the work and removed in an unsafe manner. Four builders and a 14-year old work experience student were exposed. The HSE criticised the school for not giving their asbestos register to the building contractors and failing to prepare a full refurbishment and demolition survey before the work commenced.
All three cases highlight a continuing failure of a duty holder¹ to obtain asbestos surveys prior to demolition and refurbishment work being carried out. This is not a new requirement but was introduced by the Control of Asbestos Regulations 2006. These regulations introduced the principle of a duty to manage.
Any person or organisation responsible for the maintenance of non-domestic premises must ascertain if any materials within the building contain asbestos, maintain an asbestos register and make this available to anyone who may disturb those materials. If any building work is planned, a full survey must be undertaken so that the risks of exposure to asbestos can be assessed and managed.
Following these prosecutions and the introduction of the Control of Asbestos Regulations 2012, the HSE embarked on an advertising campaign to highlight yet again the issues with asbestos. Whether the message has been heard by the construction industry remains to be seen. In 2010 the Asbestos Working Party updated its estimate of the future costs of UK asbestos related claims, estimating that the undiscounted cost for the period 2009 to 2050 to be £1 billion. With the latency period for mesothelioma being in the region of 40 years insurers have cause to hope that the HSE's message will be heard.
- see The Control of Asbestos Regulations 2006 4(1
- see The Control of Asbestos Regulations 2006 4(3) and 4(4