Lawford Kidd's Blog

The Health and Safety Executive has launched safety campaign after new research found tradespeople, including construction workers, carpenters and painters and decorators, could come into contact with deadly asbestos on average more than 100 times a year.

The survey also revealed some common myths believed by those at risk, with one in seven (14%) believing that drinking a glass of water will help protect them from the deadly dust and one in four (27%) thinking that opening a window will help to keep them safe.

Only a third (30%) of those asked were able to identify all the correct measures for safe asbestos working, whilst more than half (57%) made at least one potentially lethal mistake in trying to identify how to stay safe.

Claimants making asbestos claims may have no legal right to compensation where at the time of exposure levels of protection offered by employers would have been considered adequate, albeit considered negligent by today's standards. In McGregor v Genco, the Court highlighted this point, underlining the importance that all claims must be looked at individually, on a case-by-case basis, and with regard to the overwhelming body of case law in the area.

The Court could not '..accept that during 1976…the defendant should have appreciated that the claimant was at risk of an asbestos related injury and that their failure to appreciate and take what would now be regarded as appropriate precautions or to make enquiries about the nature of the dust was negligent'.

This could be a particularly important point for defendants in legacy claims, especially in Scotland where fatal claims are more expensive than they are in England.  It means that, even where a Claimant’s mesothelioma or asbestosis was indeed caused by exposure to asbestos while in employment with a Defendant - which would satisfy the causation test - the Defendant cannot be held to have acted negligently, where they acted in accordance with the standards at the time.  

A building firm in Battersea has been fined for failing to highlight the known presence of asbestos insulating board (AIB) at a warehouse.

As a result of this failing, a foreman and others were exposed to potential harm when the AIB was ripped out during refurbishment work.

The company was in possession of a detailed asbestos survey that clearly identified the location of the asbestos wall panels inside the building, but failed to share this with the team on the ground. As a result, when a foreman mistook the AIB for asbestos cement – a lower risk material – it was removed without adequate control measures and protective equipment.

The Health and Safety Executive (HSE) has launched a consultation on changes to the content of an Asbestos-related Approved Code of Practice (ACOP) that will consolidate two existing documents.

Following an initial consultation in June 2012, it was agreed by the HSE Board that a number of ACOPs would be revised, consolidated or withdrawn in line with the recommendation by Professor Ragnar Löfstedt in his report 'Reclaiming health and safety for all'.

For the ACOPs dealing with the Control of Asbestos Regulations 2012 (CAR 2012), L127 (The management of asbestos in non-domestic premises) and L143 (Work with materials containing asbestos), the proposal to consolidate the two ACOPs into a single revised ACOP (L143) was approved.

The Supreme Court has given its decision in the appeal by insurance companies over their obligations under various contracts of employers’ liability (“EL”) insurance. In particular, the appeals concern the scope of the insurers’ obligations to indemnify employers against their liabilities towards employees who have contracted mesothelioma following exposure to asbestos.

Mesothelioma has an unusually long gestation period, which can be in excess of 40 years between exposure to asbestos and manifestation of the disease. The insurers maintain that the EL policies only cover mesothelioma which manifested as a disease at some point during the relevant policy period. In contrast, the employers submit that the insurance policies respond to mesothelioma caused by exposure to asbestos during the relevant policy period but which develops and manifests itself sometime later.

The court at first instance held that the policies should all be interpreted as having a “causation wording,” and therefore the liability “trigger” under the EL policy was when the employee inhaled the asbestos and not the date when the malignant lesion developed.