On 14 August 2013, the Health and Safety Authority (HSA) published new guidelines -"Asbestos-Containing Materials in Workplaces: Practical Guidelines on ACM Management and Abatement".

This is a welcome development. The Asbestos Guidelines are comprehensive and detailed, running to 140 pages and 18 sections, and address the range of statutory duty-holders, including employers, clients, project supervisors and asbestos surveyors, analysts and consultants.

The stated purpose of the Asbestos Guidelines is to provide practical advice on the precautions necessary to prevent exposure to asbestos or, where this is not reasonably practicable, to reduce exposure to the lowest level reasonably practicable. As with other guidance published by the HSA, the general benchmark recommended is 'accepted best practice' as outlined in the Asbestos Guidelines and existing UK/ HSE asbestos guidance. This reference to the UK/HSE guidance is encouraging, as existing policies based on the longstanding UK/HSE guidance should not require radical revision to accord with the Asbestos Guidelines. However, all employers should carefully review existing policies and procedures to ensure they are consistent with the new Asbestos Guidelines.

Law

The principal reference point for the Asbestos Guidelines is the Safety, Health and Welfare at Work (Exposure to Asbestos) Regulations 2006 and 2010. Many employers will be familiar with the Regulations, which apply to all work activities in which employees are or are likely to be exposed to dust arising from either or both asbestos and materials containing asbestos during their work. The Asbestos Guidelines outline the practical steps involved in addressing the key requirements of the Asbestos Regulations, including risk assessment, notifications, plans of work and information, instruction and training.

Asbestos Guidelines

The Asbestos Guidelines are comprehensive and are comprised of the following sections:

  • Section 1: What is Asbestos?
  • Section 2: Asbestos in Buildings
  • Section 3: What are the health effects?
  • Section 4: Risks from Asbestos and ACMs
  • Section 5: The law
  • Section 6: Risk assessment of ACMs
  • Section 7: Managing asbestoscontaining Materials
  • Section 8: Asbestos surveys »» Section 9: Training, instruction and information
  • Section 10: Personal protective equipment
  • Section 11: Lower risk work with ACMs
  • Section 12: Work with higher risk asbestos-containing materials
  • Section 13: Role of the independent competent analyst
  • Section 14: Plans of work
  • Section 15: Health surveillance and registers
  • Section 16: Notification to the Health and Safety Authority
  • Section 17: Management and disposal of ACMs
  • Section 18: References and further information

Liability

The Asbestos Guidelines will greatly assist employers and others in protecting themselves from liability arising from asbestos related issues, which may be criminal or civil.

Failure to comply with the statutory duties under the 2005 Act and/or the Asbestos Regulations is a criminal offence which may expose an employer (or other duty-holder) to potential penalties of: (a) on summary conviction in the District Court, a fine of up to €5,000 or imprisonment for up to 12 months, or both, per offence; (b) on conviction on indictment in the Circuit Court, a fine of up to €3 million or imprisonment for up to two years, or both, per offence.

In The People (DPP) v Michael Murphy & Co Ltd and Murphy (2006) the Defendant company and its managing director were convicted on indictment of offences relating to their engagement of a third party contractor to remove ACM from their property. The Defendants were aware that a metal roof on its premises contained asbestos (in fact, it had been advised by the HSA to decontaminate the premises before bringing it into use). Nevertheless, a non-specialist contractor was engaged to remove the metal roof and was not alerted to the nature of the materials contained in the roof. The Defendant company was convicted of offences under the 1989 Act (failure to have a competent person available and failure to inform a person other than an employee concerning the place of work). The Managing Director, Mr Murphy, was also convicted and fined €50,000.

Civil liability may also attach to employers and others. The Irish Courts have made awards to victims of an asbestos-related disease, where it has been possible to trace his or her history of exposure to a particular employment, and have considered whether awards should extend to capture a fear or apprehension of injury, where no physical injury has developed. In Fletcher v Commissioners of Public Works in Ireland (2003) (known as a 'worried well case') the plaintiff, who had during the course of his employment, undoubtedly been exposed to asbestos, but had not developed an asbestos related disease (and was assessed as having a low risk of developing these diseases). Notwithstanding, he had a significant fear that he would. The High Court awarded the Plaintiff €48,000 for the stress-related illness developed as a result of his exposure to asbestos in the course of his employment. However, the Supreme Court found against the plaintiff on public policy and fairness grounds, stating that:

"In cases where there is no more than a very remote risk that he will contract the disease, recovery should not be allowed for such a psychiatric illness."

The English Courts have given some interesting pro-Plaintiff decisions, which may become more relevant in this jurisdiction, including that a claimant may recover the entirety of his damages from any one of a number of potential Defendants, even when there can be no absolute certainty that exposure during a specific period caused the relevant illness (Fairchild, 2007) and regarding insurers' liability for asbestos illness (known as the 'Employers' Liability Trigger Litigation', 2010).

The Asbestos Guidelines are essential reading for all employers and occupiers of offices and other premises in which ACMs may be present.

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.