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Posted By Chris Black
A month or so ago, my employers sent me to a highways Agency seminar on dealing with asbestos in roads, bridges and other structures. to date they have not done a lot of surveying under reg 4 of cawr compared to the number of structures in the highways network
After outlining the potential areas of exposure, the seminar moved to discussing the HA approach to carrying out sampling surveys, in short they want service providers
to shoulder some of the logistical load and to commission, where relevant, an asbestos survey in the scope of the project and to either bill the HA direct or include it in the project fee.
I relayed the information to senior people in my organisation who have decided that we will not commission surveys on behalf of other organisations, citing the reason that we will be exposed to potential future claims if the surveys do not pick up all the asbestos in a structure. apparently we are not adequately insured to carry the risk of a poor survey carried out by a third party.
I may be naive, but i find it hard to get my head round this, surely if we display due dilligence and commission surveys from professionals who carry adequate public liability insurance and who can demonstrate ABICS, BOHS module P402 and ISO 17020 compliance and take time to check their credentials and the quality of their work then we will be seen to doing all that is resonable to ensure the adequacy of the survey and would be protected from potential claims. Does anyone have any thoughts on this?
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Posted By Stuart Nagle
Chris.
I think you have a very good point, if those who are qualified to sample, take samples with all the due precautions, is there any higher risk than taking any other samples... I would not think so, unless there is uncontrolled exposure in respect of the manner of sampling that might be necessary?
Are they thinking of core sampling or something?
I would suspect that a hammer, spike, knife (for sampling mastic asphalt, concrete etc perhaps) would be suitable and safe.
Surely if asbestos is bound into the matrix of bituminous or concrete structures, it is essentially encased into the structure, much in same way as in plastics, rubbers, tiles and roofing felts etc... so I cannot quite understand the logic here.
There are however three thoughts that cross my mind here;
1) they are concerned that claims will arise from third parties (contractors and members of the public etc) - ergo financial worries,
2) they are concerned that opinion will be adverse if it comes to light that the guy scrapping bitumen from the HRA road surface is sampling for asbestos - and it is disclosed/considered (a scare story) that asbestos from road surfacing materials is wafting all around in general caused by vehicle trafficking etc, or
3) They simply do not want to draw attention to the fact that asbestos may have been used as a 'filler' and/or strengthener in bituminous materials employed in roads/carriageways, footways surfacing, and if they do this will herald an outcry from the public etc etc... I can hear the share prices tumbling now.....
Keep us posted, I for one would be interested in learning more...
Regards...
Stuart
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Posted By David Sinclair
Chris,
I would strongly recommend your company seeks independent legal advice on this problem, but in essence, I think you need to look at the legal aspects of this problem from three angles:
1. Statutory laibility - your company will need to show it has done everything reasonably practicable, to ensure it is not prosecuted if asbestos which was not picked up on the survey is later found. The suggestions made by Neil may well cover this.
2. Liability in Tort (negligence on the part of your company) - your company will have a duty to anybody who suffers loss as a result of asbestos which was not picked up by the survey. Again, Neil looked at this and made some suggestions. However, ensuring you have a suitable contract with the surveyor and he has adequate insurenace (I don't think public liability will be sufficient) should resolve this problem.
3. Contract (with the HA and any third parties) - your company will need to look at what liabilities it is taking on under the contract and seek to avoid or mitigate them such that it is not liable for defects in the survey.
Your own solicitors should be able to advise you, but if you need further help please contact me.
Regards.
David
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Posted By Chris Black
Thanks for all the responses, both private and public.
The bottom line seems to be that anyone who gets involved in engineering work on contaminated, above ground structures that require an asbestos survey is possibly joining a chain of responsibility that could lead to them being the sole, sue-able (is that a real word?) entity in the future, even if they are not the owner or operator of the site and even if all they do is commission a survey rather than carry it out. As a result it would be easier to get insurance against Scotland losing the world cup match against Italy (before the indignant reponses rain in, I am a Scotsman!)than it would be to find an insurer who will touch this work.
This begs a whole other set of questions, agencies, consultancies and principal contractors both large and small all over the country are conducting surveys on the clients behalf every day. Effectively most of these organisations will be self-insured and i have a feeling that many of them are currently operating in ignorance of the extent of their exposure.
I know of at least a couple of companies who operate in asbestos sampling and removal who are not large entities but who are currently raking it in. they still seem to go bust on a regular basis and re-open the next day under a new(but strangely similar) name with the same client list, the same accreditations and licences, the same staff and the same directors. The only thing they seem to be dropping in the process is the previous liability in respect of future claims. if someone has to sue then the buck will stop with the poor stiff who commissions a survey or removal on a client's behalf.
I will admit to having some bleak episodes of scary thinking from time to time, but i fear for anyone who has to make a claim in the future for asbestos-related illnesses in this scenario.
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Posted By Graham Peters
Chris,I may be wrong but I would not have thought that a road or bridge would be classified or interpreted as "premises", so they would not need a survey.
You might also like to see reg 28 of CAWR and 21 of the Management of H & S at Work Regs
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Rank: Guest
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Posted By Chris Black
The HA developed their approach in conjunction with the HSE and have jointly determined a series of definitions which categorise stretches of roads, bridges, transmission stations, road tunnels, maintenance workshops, compounds, depots, stores and even picnic sites as places of work for the purpose of the regs. To be fair the HA have been up-front about their approach and have shared a lot of information about the uses, nature and probable locations of ACMs in the network.
reg 21 of the management regs does deny the employer a criminal defence in respect of actions carried out on their behalf by competent persons, however we are talking more about civil actions and the standard for an asbestos surveyor is pretty well defined which should help afford the employer some defence in claims of negligence.
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