Opinion

On 21 May, Regulation 4 of the Amended Control of Asbestos at Work Regulations 2002 came into force. The regulations introduced the duty to manage and will mean that the UK has some of the most stringent controls on asbestos in the world.

Much has been made of the effect of Regulation 4 on duty holders.
One of the key issues that has arisen is whether or not it is necessary to undertake a survey of the premises to identify asbestos. Many businesses have already rushed to get their premises surveyed either through a lack of knowledge or understanding, or because they have been told they have to. This has occurred despite the Health & Safety Executive’s campaign to raise awareness about the new regulation, which makes it clear that it is a duty to manage.

There has to be a concern that the lack of understanding will extend to those involved in asbestos-related litigation as well. It is not clear whether those advising duty holders have told them there is a duty to manage or whether they have recommended that a survey be undertaken. It is also not clear whether those who will be assisting claimants in bringing actions for alleged exposure to asbestos will be seeking to argue that a failure to undertake a survey is a failure to comply with Regulation 4. While the regulation is very clear on the point, how the courts will deal with the matter is open to debate.

The simple truth is that asbestos surveys are not mandatory. It is a duty to manage, not to survey. The whole principle behind Regulation 4 is to reduce the incidence of asbestos-related diseases among building trades people and others who might be routinely exposed owing to the presence of significantly damaged asbestos-containing materials (ACMs). For any defendant facing a potential claim of exposing people to ACMs, it is going to be essential that they show compliance with Regulation 4. A comprehensive management plan that protects employees and others will discharge that duty, providing it works. If that level of protection is being achieved without surveying the premises then there is full compliance with Regulation 4. If the management plan does not work then there is non-compliance even if the premises have been surveyed.

Many duty holders have expressed concern that the requirement to survey, as they understood it, will assist potential claimants in relation to litigation in the future. Many duty holders are aware of the effects of the Fairchild decision (relating to the principles of causation) and have expressed concern. They believe that if they carry out a survey and discover that they do have ACMs in their premises, then it will be open for someone to claim, at a future date, that they have developed mesothelioma because of asbestos and the company would be liable. To a certain extent, duty holders feel that it would be unfair to make them liable for such a claim. No one is suggesting that legitimate claimants should be prevented from pursuing such claims but, clearly, there needs to be careful consideration of how the regulations are used in such litigation. If the duty holder can show that they have in place an effective management plan and that the same has been communicated to those who might come into contact with materials, then potential defendants to such claims should have nothing significant to fear. It is only going to be those duty holders who have ignored the effect of the regulations that need be concerned.

It is clear that asbestos is going to be around as an issue for many years to come and that there is huge potential for a whole new generation of claimants to come forward alleging exposure. The question is, how are the courts going to interpret compliance or otherwise with Regulation 4? There is no doubt that the aims of the new duty are very laudable, but it is quite clear from the experience we have had with other regulations that despite their introduction, there is going to be a new era of claims in the future where the courts will have to determine whether the duty has been complied with and discharged.