Asbestos was formerly a very commonly used form of insulation. However, more recently it has become apparent that exposure to asbestos can cause a number of serious physical conditions, affecting, in particular, the lungs. The adverse effects may not occur for some significant time after exposure. Many forms of asbestos have been banned entirely.
Asbestos was not regulated at all in Ireland until the early 1970s. The awareness of the risks associated with asbestos has developed in the last 30 to 40 years. Asbestos is now generally classified as a dangerous substance and is no longer used. The use of all types of asbestos has been prohibited for many years. Its main incidence is historical. It is found in many older buildings.
Asbestos may lead to adverse effects in the lung. Scaring known as pleural plaques may be followed by asbestosis and mesothelioma. Asbestosis may develop in the short run or after a prolonged period. Lung cancer may develop in the long run. Mesothelioma is a long-term cancer linked to exposure to asbestos. The HSA has established an asbestosis and mesothelioma register containing details of diseases reported.
Assessment of Risks
The Asbestos Regulations 2006 requires that the employer must first undertake a risk assessment of any activity which may involve exposure to asbestos. There is an obligation to identify certain materials at premises which may contain asbestos. If there is any question that the asbestos might be present, the obligations in the regulations must be complied with.
Employees who are at risk of exposure to asbestos, must not be permitted to carry out the activity unless the assessment has been first made of the risk in accordance with the methods set out in the regulations.
Employers must take steps to identify certain materials which presumptively contain asbestos. If there is any risk of the presence of asbestos, the relevant provisions of the Regulations must be complied with.
Requirements re Asbestos Exposure
The requisite quantity of asbestos fibres must be less than the prescribed safety level / exposure limit. There is a duty on employers to assess the risk arising from the activity and determine the nature and extent of the exposure. The exposure limits must not be exceeded. Any likely exposure is to be reduced below this minimum.
The persons who carry out work involving asbestos must be demonstrably competent to do the work. They must give evidence of their ability to the person for whon the work is done and to the HAS, if requested.
Employers must provide training and information to employees and provide protective clothing. Protective clothing must be used and must be disposed of or cleaned adequately.
Where employees have been, or might have been exposed to asbestos, a health assessment must be provided. A register must be maintained for 40 years. The employee is entitled to access to the relevant information.
Prior Notice to HSA
The HSA must be notified where work is to be undertaken with or in the presence of most types of asbestos. An employer shall not carry on an activity which would expose or would be liable to expose an employee to dust arising from asbestos or materials containing asbestos unless he has made a written notification comprising details of matters specified.
Where any demolition or other work involves removing either or both asbestos and asbestos containing products from any building, other structure, plant, installation or ship, whether or not such removal involves total demolition of the structure, such work shall not commence until a suitable plan of work is drawn up in writing outlining how that work is to be carried out.
The plan must be prepared and submitted to the HSA at least 14 days in advance. It must specify the asbestos products, give information regarding the nature and location of the works and the methods to be used for dealing with asbestos. Particulars of the protective equipment and decontamination must be furnished.
Various Obligations re Asbestos
The Environmental Protection Agency licenses the use of many hazardous substances, including asbestos.
Activities resulting in exposure to asbestos fibres during extraction and manufacture of asbestos products are prohibited. There is an exception for disposal of products involved in removal and demolition. The prohibitions and limitations are reflected in a range of legislation, including the general dangerous substances legislation and in construction standards.
If there is an unforeseeable exposure to asbestos (e.g. asbestos dust), the employer must identify it and must take remedial action. If there is a foreseeable excessive exposure, measures must be undertaken and implemented in advance.
Where there has been possible exposure to asbestos, a health assessment must be undertaken.
A Health Register must be maintained. Medical records must be kept for at least 40 years after the latest assessment. Information must be given to the employee on request. A medical doctor must give advice regarding the assessment.
Civil Liability arising from Asbestos
There has been a significant amount of personal injury claims worldwide, arising from exposure to asbestos. There has been much litigation in the United States arising from liability in relation to asbestosis and the other long-term effects of asbestos.
Many asbestos-related cases are based on historical exposure. It is necessary to show negligence in accordance with the standards applicable at the relevant time. This may be possible, where there was or should have been awareness of the risks and where continued exposure was allowed in disregard to those risks.
A number of substantial awards have been made by the Irish and UK Courts on the basis of historical exposure to asbestos. Where the employer had failed to take reasonable precautions to prevent exposure, liability has applied in relation to the later consequences, notwithstanding that they did not manifest themselves for a considerable length of time after the actual exposure.
The UK Courts have allowed cases to proceed to trial in England against parent companies for personal injuries claimed to be caused by asbestos in a developing country. Such cases have only been allowed exceptionally, where the Courts took the view that the local jurisdiction would not be the appropriate forum because it did provide a basis for doing justice and ensuring compensation.
Most claims arising from exposure to asbestos relate to tangible injuries, which have been caused by the effects of exposure to asbestos. A phenomenon recorded internationally has been anxiety and depression developed from fear of asbestosis.
Claims for damages have been made on the basis of anxiety arising from the possibility of having contracted asbestos-related diseases. Some courts have accepted that such a claim is possible in principle, but only where this fear is rationally felt by a person of ordinary fortitude. The Irish courts have accepted that it is possible in principle to establish liability for depression or anxiety caused by the fear of developing serious disease arising from exposure to asbestos.
A prominent Irish case involved a former public sector employee who had worked in buildings in which asbestos was used. He had developed an anxiety neurosis in relation to and as an alleged result of exposure to asbestos. There was a finding of significant exposure to asbestos and a finding of gross negligence. The High Court had allowed compensation. The Supreme Court, although allowing that liability might arise in principle in such circumstances, held that the claimant’s reaction was not foreseeable.
References and Sources
Safety, Health and Welfare and at Work Law in Ireland 2nd Ed 2008 Byrne Ch.8
Safety & Health Acts Consolidated & Annotated 2013 Byrne
Health, Safety & Welfare Law in Ireland 2012 Kinsella
Health & Safety: Law and practice 2007 Shannon
Health & Safety at Work 1998 Stranks Ch.6
Civil Liability for Industrial Accidents 1993 While
The Health and Safety Authority www.hsa.ie
Health and Safety Executive (UK) www.hse.gov.uk
Tolleys Health and safety at work, 2017 29th ed Bamber,
Corporate liability: work related deaths and criminal prosecutions 3rd ed. Author FORLIN, G.
Health and safety at work: European and comparative perspective Author ALES, E., ed.
Health and Safety Law 5th Ed 2005 Stranks
Principles of Health and Safety at Work (8th ed) Holt, Allan St. John; Allen, Jim;
The Law of Health and Safety at Work 2014/15 (23rd ed) Moore, Rachel; Winter, Hazel;
Safety, Health and Welfare at Work Act 2005
Safety, Health and Welfare at Work (General Application) (Amendment) (No. 3) Regulations 2016 (S.I. No. 370 of 2016)
Safety, Health and Welfare at Work (General Application) (Amendment) (No. 2) Regulations 2016 (S.I. No. 70 of 2016)
Safety, Health and Welfare at Work (General Application) (Amendment) Regulations 2016 (S.I. No. 36 of 2016)
Safety, Health and Welfare at Work (General Application) (Amendment) Regulations 2012 (S.I. No. 445 of 2012)
Safety, Health and Welfare at Work (General Application) (Amendment) Regulations 2010 (S.I. No. 176 of 2010)
Safety, Health and Welfare at Work (General Application) (Amendment) Regulations 2007 (S.I. No. 732 of 2007)
Safety, Health and Welfare at Work (General Application) Regulations 2007 (S.I. No. 299 of 2007)
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