European and national legislation on asbestos contamination, and the need to manage asbestos-containing materials (ACMs) to prevent employee exposure, presents significant challenges for many companies. There are also indications that the European litigation environment regarding asbestos exposure claims may be changing. Recent UK court decisions have significantly relaxed traditional causation rules in asbestos cases and recognised the availability of ‘worried well’ compensation.With asbestosrelated deaths not expected to peak until the next decade – the height of European use of/exposure to asbestos being decades later than in the US – and silica exposure litigation largely an unknown quantity, manufacturing companies in Europe may face a repeat of the US asbestos experience, albeit on a smaller scale.
European asbestos regulation
The basic premise of the 1983 Asbestos Worker Protection Directive is to protect workers against risks to their health from exposure to asbestos at work. The Directive has been amended over the years, most recently by Directive 2003/18/EC. The main components of the EU asbestos legislation, including the modifications imposed by the 2003 amending Directive, are as follows.
- Activities covered under the Directive are subject to a notification scheme. Employers have to notify the competent authority of details such as the location of the workplace using asbestos and the measures taken to limit asbestos exposure. Under the 2003 Directive, there is a requirement to adapt the notification system to new work situations likely to result in a significant increase in exposure.
- Exposure limit provisions: the Directive states that where exposure may occur, it must be kept to a minimum. It sets exposure limits for airborne concentrations of asbestos of 0.1 fibres per cubic metre. Individuals must not work in concentrations above this.
- Training: employers must provide free and regular special training for workers exposed or likely to be exposed to asbestos.
The UK regulatory scene – CAWR 2002 and CAR 2006
The Control of Asbestos Regulations 2006 (CAR), which revoke and replace the Control of Asbestos at Work Regulations 2002 (CAWR), impose an express duty to ‘manage the risk’ from ACMs. This probably does little more than spell out what has long been part of general UK health and safety law.
Under CAR employers are expected to ensure that as far as reasonably practicable no one can come to any harm from asbestos on the premises. It is clear that this involves an obligation to repair or remove ACMs in certain circumstances. If ACMs are in good condition, not likely to be damaged and not likely to be worked on or disturbed, CAR reflects that it is better to leave them in place (rather than disturb them by attempting removal) and implement a system of management; they therefore impose a duty to manage the risk of those ACMs. In such circumstances, appropriate steps might include: (a) noting the presence of ACMs and maintaining a register of location and condition; (b) labelling such locations with an asbestos warning sign; and (c) introducing an on-site permit to work system (to ensure that anyone who comes to carry out work on the premises does not start before they are presented with the relevant information on asbestos risks and to record the use of any protective measures or equipment required). ACMs in poor condition must be repaired (eg by sealing or enclosing the ACMs to prevent further damage) or removed.
More generally, CAR obliges employers to: (a) find out whether there is asbestos in their premises, its amount and what condition it is in (presuming that materials contain asbestos unless there is strong evidence that they do not) – this will generally involve engaging a suitably trained person to conduct a survey of the premises; (b) make and maintain records of the location and condition of ACMs or presumed ACMs on the premises; (c) assess the risk from the material, seeking specialist advice if necessary from an asbestos surveyor, a laboratory or a licensed contractor; (d) prepare a detailed plan setting out how the risk from the material will be managed; (e) implement the plan and review it periodically; and (f) provide information on the location and condition of the material to anyone who is liable to work on or disturb it. The basic position in the UK is that employers have a degree of latitude in deciding how to control site asbestos exposures against the background of a duty to carry out continuous risk assessment.
The European litigation outlook
In the EU, as in the UK, most experience concerning asbestos liabilities has come from the occupational health sector. In most of the major EU jurisdictions compulsory employers’ liability schemes cover asbestos claims. In some mainland European jurisdictions, occupational health claims lie exclusively under government-constructed insurance regimes (rather than giving rise to a direct cause of action in court against employers and manufacturers as in the US). In other jurisdictions, such as the UK and Ireland, claiming from an employer’s insurer is simply easier than litigating. State social security support is similarly more freely available to sufferers of asbestos-related disease in the EU than elsewhere, which militates against litigation.
Mainland European jurisdictions, and to a lesser extent the UK, have also tended to lack a litigation/compensation culture similar to that in the US. Market experience throughout the EU has, therefore, been more focused on asbestos regulation and control than litigation. Nevertheless, similarities in the EU member states’ historical experience of asbestos use may mean that asbestos litigation will increase Europe-wide. Other factors – such as disease latency and the current widespread difficulties of the European insurance sector – point to the same conclusion.
An example – the UK litigation timebomb?
The UK arguably occupies the middle ground between the US and mainland Europe in its experience of asbestos-related litigation. Asbestos litigation in the UK is of surprisingly recent origin and is still, in some senses, in its infancy.Whereas the first US cases were brought as early as the 1930s, it was not until 1950 that the first asbestos-related claim was settled in the UK and not until the early 1970s that a series of cases against Central Asbestos resulted in an award of damages by the English courts. A number of factors may explain the relatively slow growth of litigation in the UK.
- The historical existence of compensation schemes and insurance obligations regarding occupational asbestos exposure – the first UK scheme was established in 1932 and since 1972 employers have been legally obliged to purchase employers’ liability insurance to meet claims for work-related injuries or illness suffered by their employees.
- The difficulties in litigating for asbestos-related injury in the UK – litigants have found it difficult to prove that they should be covered by the asbestos-control legislation in question, that their employer could reasonably have protected them from harm, that their claims are not statute-barred and, where they worked for more than one employer, that they should be able to recover damages for non-cumulative diseases (such as mesothelioma). The long periods between asbestos exposure and the development of symptoms also create problems.
- Personal injury litigation in the UK is generally less attractive than in the US – the availability of class actions, contingency fee arrangements and punitive damages all make the US litigation process more appealing to a litigant.
However, asbestos litigation in the UK is likely to grow over the coming years for a number of reasons.
- First, the incidence of asbestos-related disease in the UK has probably not reached its peak. The general trend in mortality and morbidity in asbestos-related diseases (identified by the UK Health and Safety Commission) is one of continuing growth. Up to 10,000 deaths a year are expected by 2010.
- Second, high profile insurance insolvencies may force claimants to resort to litigation. The UK insurance industry (wary of the US experience) is taking an increasingly combative approach to threatened lawsuits.
- Third, in recent years civil litigation procedure in England and Wales has undergone substantial reform to ensure uniform access to justice for claimants and increase the efficiency and speed of the litigation process.
These reforms have reduced the number of claims that actually reach court through their emphasis on early settlement of claims. Procedures for group litigation have also been streamlined. For example, a recent practice note published by the Senior Master of the English High Court created a special fast-track claims handling procedure for mesothelioma cases. The availability of after-the-event insurance for legal costs and judicial erosion of the prohibition on US-style conditional fee arrangements mean that funding is readily available for such claims.
- Lastly, the courts are adopting a more pro-claimant approach in asbestos cases than in the past. Two key decisions in the House of Lords (Lubbe and Fairchild) have provoked concern that an upsurge in asbestos litigation may occur. Lubbe established that legal funding is available as grounds for granting jurisdiction to foreign claimants wishing to bring a personal injuries action against a UK-based defendant even where the claimant lives overseas and the disease occurred outside England. Fairchild overturned a previous decision that had effectively barred claimants exposed to asbestos dust by more than one defendant from recovering damages for mesothelioma on the grounds that the claimant could not prove which of the defendants was responsible.
In addition to increased litigation in this area, the UK regulation of the asbestos industry is becoming tighter. In particular there is evidence that the Health and Safety Executive is exercising increasing enforcement vigilance regarding health and safety/environmental regulations relating to asbestos. The courts have also shown their willingness to impose high financial penalties on companies found guilty of breaching health and safety legislation by exposing employees and others to ACMs.