Article

CL:AIRE Launches New Half Day CAR-SOIL Training Courses along with Full Day

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CL:AIRE has just launched a series of half day CAR-SOIL training courses in addition to their already successful full day training, in London, York, Manchester and Edinburgh. This is in response to delegate feedback from those who have already participated on the full day courses and to meet the demand of the asbestos and brownfield industry to improve their knowledge in working with asbestos in soil.

Half Day – assumes that participants already have demonstrable in-depth knowledge of CAR2012 and HSE Approved Code of Practice L143.

Prices start from: £183.75 + VAT

Full Day – This course assumes that participants already have a basic awareness and understanding of the requirements of CAR2012 and HSE Approved Code of Practice L143.

Prices start from: £221.25 + VAT

London
Half Day CAR-SOIL: 18 September 2017
Full Day CAR-SOIL: 19 September 2017

York
Half Day CAR-SOIL: 16 October 2017
Full Day CAR-SOIL: 17 October 2017

Manchester
Half Day CAR-SOIL: 13 November 2017
Full Day CAR-SOIL: 14 November 2017

Edinburgh
Half Day CAR-SOIL: 11 December 2017
Full Day CAR-SOIL: 12 December 2017

To book a place or to find out more about the courses please follow the link:

https://www.claire.co.uk/commerce/212352-asbestos-in-soil-and-construction-demolition-materials-training

Bespoke courses in Asbestos Awareness for Groundworkers, Non Licensed Work for Groundworkers and the CAR-SOIL courses are also all available, please provide your requirements using the CL:AIRE Hep Desk https://www.claire.co.uk/help-desk

Article Contaminated Land Loss Prevention

Asbestos PII Update

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The subject of asbestos cover is one that has been in the spotlight for many years since the restriction (and in some cases the complete withdrawal) of professional indemnity insurance (PII) cover for asbestos risks in 2002/03.

Wider cover is now available in the PII market to those consultancy firms that might inadvertently come across asbestos in the normal course of their activities, although it will not usually be offered to those firms undertaking asbestos inspections.

In the past, cover has generally only been available for negligence claims in respect of the direct cost of remediation or diminution in value of property due to the presence of asbestos. Any indirect costs, such as consequential delay costs, would have been excluded. With a few exceptions, cover can now be obtained for any asbestos related negligence claims regardless of whether the loss in question relates directly to remediation or diminution in value, and cover will therefore extend to cover economic and consequential losses. The exceptions relate to bodily injury claims and claims relating to property located outside the United Kingdom (including the Channel Islands or the Isle of Man) and the Republic of Ireland, which continue to be generally excluded.

Those firms undertaking ‘management’ and ‘refurbishment or demolition’ surveys as described in the Health and Safety Executive guide HSG264 (previously known as type I, II or III asbestos surveys) or similar surveys are unlikely to qualify for the wider cover and will need to negotiate specific cover with their insurers or approach a specialist provider. Consultants with UKAS accreditation should note that UKAS requires Accredited Bodies to carry asbestos cover for bodily injury claims and this is available to such bodies via specialist markets. If you require assistance with this, then please do not hesitate to contact Griffiths & Armour using the contact details below.

For those consultants who may appoint sub-consultants to undertake asbestos inspections on their behalf it is worth remembering that, in the eyes of the law, you are fully responsible for their actions and any claim that arises from work they may have undertaken is likely to expose the consultant’s PII policy in the first instance. If you are appointing third parties to undertake asbestos inspections then you should check the terms of your PII policy to ensure that you are adequately protected.

The scope of cover provided under PII policies can vary considerably and if you are in any doubt about the extent of asbestos cover under your own PII policy you should consult with your broker for further advice.

Griffiths & Armour Professional Risks
0151 600 2071

News Contaminated Land

Panel debate on Asbestos in soil

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Understanding the risks posed by Asbestos in soil will be explored  through a panel discussion that brings together Dr Richard Ogden (co-author of CIRIA’s C733 document) and members of the AGS Contaminated Land Working Group. The panel debate will take place during AGS Members’ Day, on 18 March and is scheduled for 3.30pm.

Dr Ogden will be giving a presentation to put the discussion in context and introduce the known issues and inferred risks surrounding the presence of asbestos in soils. These include topics such as the risks on construction sites during and post works, what laboratory tests are required and the international effort to understand the soil-air relationship.

Following this presentation AGS Chairman Seamus Lefroy-Brookes,  Chris Swainston, Steve Moreby, and Contaminated Land Working Group chairman Neil Parry will join Dr Ogden to discuss the issues.

 

Article

AGS Members’ Day – March 2015

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9.30am – 16.30pm, Wednesday 18th March 2015

Royal Geological Society, 
1 Kensington Gore, London SW7 2AR

AGS Members day incorporates our AGM and will feature a number of presentations on the issues that are front of mind for the geotechnical and geoenvironmental industry.

This year’s programme includes a panel discussion on Asbestos and the issues it raises within the practice area of managing the risks for contaminated land. Presentations will also be given on the “Ground Investigation Requirements for HS2” and “Educating Consultants on Laboratory Testing”.

The full programme can be download here –  AGS Members’ Day programe A4 FINAL

 

Report Loss Prevention

Loss Prevention Working Group Report

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Hugh Mallett, Chairman LPWG writes:

The group is drafting articles and guidance on a number of issues that are important to AGS members, see below for the list of our ongoing work programme and soon to be available guidance.

General

The LPWG met once since the November Committee meeting – 22nd Jan 2015. No calls have been made to the Legal or Chemical Helplines since the last LPWG meeting.

A Griffiths & Armour publication on claims “Professional Indemnity Insurance: Lessons to be learnt” is to be made available to AGS members via the new website

LPWG generally agrees with putting some documents behind a paywall on the new AGS website. There is also support for a knowledge hub (e-learning) that could be considered as a future initiative for students.

Loss Prevention Alerts (LPAs) are still in high demand for downloading [20 LPAs downloaded >100 times between Oct and Jan].

New member has joined the  group, Nora Fung – Arup legal.

Recently Published

Newsletter

  1. Elvanite Vs Amec- Limitations of Liability
  2. BGS – Deposition of Data

LPAs

LPA 58 – Risks associated with as built drawings.
LPA 59 – The Consequences of Damage to Underground Services LPA 60 – What is meant by Supervision?

Work in Progress

  • LPAs
  • Summaries for the web site being reviewed and edited for accuracy.
  • Permission is being sought for publication of LPA 09 [Mott MacDonald case] online.
  • Contractors seeking contractual indemnities from their Sub Contractors. Ready for publication

Net Contribution Clauses: Newsletter article prepared. Authorisation to publish being sought from Griffiths & Armour.

Document on Ground Investigation Reporting (GIR/ GDR): Initial redraft prepared by J Strange – subject to further review/ comment. Now held to be consistent with revised BS5930.

Asbestos & deleterious materials: Newsletter article to be prepared [may also pick up discussion at Members Day]. Article on insurance cover re asbestos last published in 2011 to be re-published.

Collateral Warranties: Griffiths & Armour being approached to allow their Collateral Warranties – Basic Guide to be made available to AGS members. If permission is granted a short article highlighting its availability to be prepared for the Newsletter.

Expert Advisor and Expert Witness: Newsletter article being prepared. 1 of 2

Copyright Paper on copyright issues: drafted [advice to Members on copyright and on issues arising from use of reports and drawings in planning process].

PI Insurance for Contaminated Land: NEC3 contract requires insurance terms to be on an each and every claim basis. Aggregate cover only available for contaminated land (and asbestos and radioactivity). A newsletter article is being drafted.

Guide to report writing: Newsletter article drafted to advertise the guidance to AGS Members. The Guide itself was up-dated, but never published. Up-dated version to be retrieved, put on the web site and publicised in Newsletter.

Limitation period and defects liability: Article being drafted

Confidentiality and Intellectual Property Rights: issues for Staff on Secondment Loss Prevention Guidance drafted to address some of the issues arising from secondment of staff.

Signing contracts under duress: Newsletter article being prepared.

Client Guide: What Institutions, Trade Associations or other organisations might a Client expect a Geotechnical/Geoenvironmental Company and their employees to belong to? Paper in preparation.

Piling Damage to Live Railway Tunnel. Paper in preparation.

 

Report Contaminated Land

Contaminated Land Working Group Report

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Neil Parry, Chairman, CLG writes:

Our last meeting was held on 10th January 2015, 17 members attended. Below is a summary of ongoing activities.

Environment Agency (EA)

Further to the meeting with Bob MacIntyre (EA Hazardous Waste) a further (or extended) Working Group meeting is proposed once the Waste classification and assessment Technical Guidance WM3 has been published. Agreement from the Main Committee was required (Ann-Marie to forward additional room costs).

Sampling

A separate working group has been set up to look into sampling protocols for contaminated soil and waste. We have been in contact with Murray Lark from the BGS and he has agreed to contribute to the sub group.

NHBC

Karen Thornton reported on the statistics for NHBC and research projects on low energy, SUDS, soil stabilisation. A new Basement Construction chapter 5.4. A full review of standards is due to take place up to April this year.

Land Forum

Chaired by Seamus Lefroy-Brooks. Work being carried out on QMLC Scheme for competence.

C4SL

SAGTA held a meeting at the beginning of February. It was agreed that Karen Thornton would feed back information from the meeting to the CLWG.

Asbestos

A panel discussion on asbestos will be held on Members’ day.

UKWIR

Further to the AGS Position Statement on the UKWIR guidance (guidance for the selection of water pipes in contaminated land) further monitoring of the general water company requirements will be carried out.

SiLC

Roger Clarke reported that there has been a drive for more assessors as the numbers in SiLC increase.

BS8485

Code of practice for the characterization and remediation from ground gas in affected developments. Some progress on the new draft reported by CLWG members involved.

Article Loss Prevention

What is Material Risk? Asbestos in Soil

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The risk of harm arising from asbestos left in soil is one which has only recently been identified. We do not yet have any legal cases arising from this type of exposure but asbestos itself has a very bad history in the workplace. There are reputed to be 4000 asbestos related deaths per year.

Consequently there are many civil cases, some appealed to the Supreme Court recently, which have given guidelines as to the way the courts view the assessment of that risk, and how they may evaluate the causal risks of asbestos in soil.

There will be two general types of claims (possibly group claims), those for property damage and those for damage to health. These will be assessed under the civil law of negligence, but there will be differences for each type of claim in proving the liabilities and the causal links between the damage and the negligence. For property claims, the process is the standard approach for negligence, but for the human health cases, the courts recognise the special circumstances of asbestos exposure and impose a lower burden of proof on the claimant.

Remember that the claimants have not only to have been exposed, but in England and Wales to have progressed to full blown mesothelioma, not just the pleural plaques which precede it (as is the case in Scotland). The claimants also have to prove that the exposure was negligent. This means that not all exposure victims will have legal claims.

Then the claimants have to prove that the negligent exposure caused their condition. This is  fundamental  to all claims in negligence; you have to prove that the negligence specifically caused the damage which you suffered. However this is so difficult in cases of asbestos exposure that the courts have made an exception for such cases.

The House of Lords decided the claimants did not have to prove which negligent source or which defendant caused the problem, only that the negligent exposure of the defendant had materially increased the risk of the disease for the claimant.

The Compensation Act 2006 amended the rule to provide that each negligent defendant would be independently and equally jointly liable, no matter how much exposure they were individually liable for. But the duty did not become a statutory duty; the process is still evaluated under the common law of tort.

In 2007, the Court of Appeal considered whether material exposure could be quantified as a doubling of the risk but decided that for mesothelioma, it could not, because it would contravene the Compensation Act which talked only of “material“ risk. So material means less than a doubling of the risk. But how much is “material”?

Cases so far have all been employers’ liability claims. This year, the Supreme Court heard two claims together, concerning different types of exposure, one low level long term at work at an increase of only 18%, and the other a single instance, when as a student, school buildings were being constructed. The court held that this test applies even here to these limited exposures.

How low can the risk be before it is not material? We do not know this as yet. But there will come a time when the exposure will be seen as too insignificant to be taken into account. Lord Phillips said in the Willmore case: “I doubt whether “material risk” is ever possible to define, in quantitative terms, what for the purposes of the application of any principle of law, is de minimis. This must be a question for the judge on the facts of the particular case. In the case of mesothelioma, a stage must be reached at which, even allowing for the possibility that exposure to asbestos can have a cumulative effect, a particular exposure is too insignificant to be taken into account, having regard to the overall exposure that has taken place.”

Scientific advances as to the cause of the disease might give us a clearer view, and the law will respond to this. Lord Phillips also said“(the 2006 act)does not preclude the common law from identifying exceptions to the “material increase of risk” test, nor from holding, as more is learned about mesothelioma, that the material increase of risk test no longer applies.”

Watch this space.

Article Contaminated Land Laboratories Loss Prevention Safety

Asbestos PII Update

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The subject of asbestos cover is one that has been in the spotlight for many years since the restriction (and in some cases the complete withdrawal) of professional indemnity insurance (PII) cover for asbestos risks in 2002/03.

Wider cover is now available in the PII market to those consultancy firms that might inadvertently come across asbestos in the normal course of their activities, although it will not usually be offered to those firms undertaking asbestos inspections.

In the past, cover has generally only been available for negligence claims in respect of the direct cost of remediation or diminution in value of property due to the presence of asbestos. Any indirect costs, such as consequential delay costs, would have been excluded. With a few exceptions, cover can now be obtained for any asbestos related negligence claims regardless of whether the loss in question relates directly to remediation or diminution in value, and cover will therefore extend to cover economic and consequential losses. The exceptions relate to bodily injury claims and claims relating to property located outside the United Kingdom (including the Channel Islands or the Isle of Man) and the Republic of Ireland, which continue to be generally excluded.

Those firms undertaking ‘management’ and ‘refurbishment or demolition’ surveys as described in the Health and Safety Executive guide HSG264 (previously known as type I, II or III asbestos surveys) or similar surveys are unlikely to qualify for the wider cover and will need to negotiate specific cover with their insurers or approach a specialist provider. Consultants with UKAS accreditation should note that UKAS requires Accredited Bodies to carry asbestos cover for bodily injury claims and this is available to such bodies via specialist markets. If you require assistance with this, then please do not hesitate to contact Griffiths & Armour using the contact details below.

For those consultants who may appoint sub-consultants to undertake asbestos inspections on their behalf it is worth remembering that, in the eyes of the law, you are fully responsible for their actions and any claim that arises from work they may have undertaken is likely to expose the consultant’s PII policy in the first instance. If you are appointing third parties to undertake asbestos inspections then you should check the terms of your PII policy to ensure that you are adequately protected.

The scope of cover provided under PII policies can vary considerably and if you are in any doubt about the extent of asbestos cover under your own PII policy you should consult with your broker for further advice.

Griffiths & Armour Professional Risks
0151 600 2071

Article Contaminated Land Laboratories

Asbestos in Soil

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The AGS is active in establishing industry guidance for asbestos in soils. The CLWG and LPWG have formed a small sub-group to discuss what guidance and advice should be provided for our Members, and to contribute to the work that is currently being undertaken by other groups and associations on this issue. This article is intended to give Members an awareness of the present situation; what has happened, what is being done and what may be happening in the future.  It has been suggested that many of our members, while insured for investigating and providing advice on contaminants, have specific exclusions to their professional indemnity policies in regard to claims relating to asbestos, and this may possibly have indirectly led to a lack of training and awareness about the risks of asbestos in soils.

LEGAL ASPECTS
Attempts by government agencies and independent organisations to define “safe” or “minimal risk” threshold concentration values, either for fibres in soil or for fibres in air, have been thwarted by the scientific evidence that death can be caused by a single fibre.

The current legal rule in relation to Mesothelioma is that any “material increase in risk” is sufficient for legal liability. In a recent appeal court ruling the exposure was judged to be just 18% higher than background levels.

REGULATIONS
The UK, in 1931, was the first country to establish laws regulating exposure to asbestos, primarily to protect the health of factory workers.

Currenty UK Statute is dominated by the Control of Asbestos Regulations (CAR) 2006 which were implemented under the provisions of the 1974 Heath and Safety at Work Act and bring together the three previous sets of Regulations covering the prohibition of asbestos, the control of asbestos at work and asbestos licensing.  However, while these regulations are relevant for asbestos in soil, they do not define limits or best practice and there is currently no specific published guidance from either the HSE or the Environment Agency.

TRAINING
The British Occupational Hygiene Society (BOHS)  have a series of asbestos-related proficiency qualifications that cover the identification, sampling and management of Asbestos in Buildings.
The development of specific training and qualifications for the contaminated land industry is being actively considered by various bodies and will need to include consideration of the following issues

  • background of asbestos; including health effects
  • recognition of debris in soil that may contain asbestos
  • procedures to be followed when soil that may contain asbestos is identified
  • safe packaging, labelling and handling of soil samples that may contain asbestos
  • the nature of operations that could result in exposure to asbestos
  • proper use, handling and disposal of personal protective equipment (PPE)
  • personnel decontamination
  • equipment cleaning

FIELDWORK and SITE WORK MANAGEMENT
All personnel either organising fieldwork or inspecting and/or handling suspected asbestos-contaminated soil or being exposed to soil-disturbing activities at sites where there is a risk of asbestos-contaminated soil being encountered must be able to demonstrate an appropriate level of awareness of the risks associated with asbestos-contaminated soil.

The first step is to identify the potential for asbestos at a site by studying the site history and to exercise an appropriate level of caution. Asbestos may be expected within the demolition rubble from former buildings, in association with buried heating pipework and ducts, or simply within fly-tipped materials.  Asbestos Containing Materials (ACM) have been in use since 1834 but were most widely used between the 1950’s and the 1980’s.  The use of ACMs was not banned until 1999.

The potential for fibre release from ACM in damp soil may be limited, but if the site is dry and dusty, fibres may readily become airborne.

In addition to artificially damping down dust down drilling or trial pitting activities, the following PPE can be considered:

  • Boots that can be easily washed down.
  • Disposable overalls(type 5) fitted with a hood
  • High efficiency disposable particulate air respirator (FFP3)
  • Disposable Gloves
  • Goggles

Any suspect fibrous material or any cement / board type products which have evidence of fibres within them should be considered to potentially contain asbestos and samples must be taken for subsequent laboratory confirmation. All samples should be double-bagged with both the sample container and outer bag labelled as potentially containing asbestos so that the laboratory can take all the necessary precautions to prevent exposure to their staff.

Asbestos may occur as:

  • Sprayed coatings and wrapped lagging used for thermal & fire protection,
  • Insulating boards, wallboards and ceiling tiles used for fire protection, thermal and acoustic insulation
  • Profiled and flat roofing sheets, partitioning boards and decking tiles
  • Bitumen products, mastic pads, roofing felts gutter linings
  • Ropes and yarns
  • Cloth mats, fire blankets
  • Millboard and paper, general heat insulation
  • Flooring, thermoplastic, PVC floor tiles, mastics, sealants etc
  • Textured coatings e.g. artex
  • Bakelite

LABORATORY ANALYSIS
Unless a formal screening is requested by the person commissioning the laboratory testing, the laboratory will simple carry out a visual check.  There is an issue here in that a large proportion of soil samples are put through laboratories without any formal screening and it has been conjectured that significant percentages of made ground samples are passing through both geotechnical and analytical laboratories with undetected asbestos.

Most labs provide a tiered approach involving screening, identification and quantification:

  • Basic screening: examined under an optical microscope with magnification of x2 to x5
  • Detailed screening: ditto with magnification of x10 to x40
  • Identification: Polarised Light or Phase Contrast Microscopy (PLM or PCOM)
  • Quantification: Gravimetric (typical LoD 0.1%) *
  • Quantification:  Sedimentation and Fibre Counting (typical LoD 0.001%)

*The Gravimetric quantification method is currently being phased out.
EXISTING GUIDANCE
Current UK workplace regulations for asbestos in air have a single Control Limit (max. concentration of fibres in the air averaged over a 4 hr period) for all types of asbestos of 0.1 fibres per cm3 (100 000 f/m3).  The World Health Organisation indicate that 1000 f/m3 is associated with a 10-6 to 10-5 risk of lung cancer in a population where 30% are smokers and 10-5 to 10-4 risk of Mesothelioma.

ICRCL Guidance Note 64/85 “Asbestos on Contaminated Sites” (1990) is still the most current guidance for asbestos in soil and suggest asbestos fibres should be  <0.001% w/w.

Waste Soil containing >0.1% w/w asbestos is classified as hazardous waste.

The key issue in assessing risks from asbestos in soil relates to modelling the exposure. It is not possible to use the CLEA model to calculate exposure and no reliable quantitative relationships between factors which affect asbestos fibre concentration in air and asbestos concentrations in soil are known.

There is some consensus between the UK (ICRCL), Dutch and Australian Guidance on the use of a threshold of 0.001% as a threshold for asbestos in soil. The Dutch Guidelines consider the risk from Chrysotile to be ten times less than Amphibole asbestos but the HSE, WHO, the Australian DoH and the USEPA have chosen not to distinguish between different asbestos fibre types.

For bound asbestos there is recognition that the potential generation of asbestos fibres is much lower and hence Dutch and Australian guidance use a threshold ten times higher than that for friable asbestos.

The USEPA use a method based on direct measurement during vigorous activity to assess the soil by measuring ambient air concentrations. A measurement approach is also used in the Dutch guidance.

New Guidance
It is believed that the Environment Agency and the HSE have in recent years collaborated to prepare new draft guidance for asbestos in soils in the form of a document entitled ‘A Study to Derive Soil Guideline Values for Asbestos in Soil’.

It was rumoured that this draft guidance recommended use of a strategy based on the Dutch approach for the assessment of soil contamination with asbestos.  However, the EA have seemed reluctant to publish this document, and despite a recent Freedom of Information request by the EIC it is now not expected to emerge, being instead superceded by a forthcoming update to the HSE document HSG248 (2005) ‘Asbestos: The analysts’ guide for sampling, analysis and clearance procedures’. Public consultation on this HSE document is awaited.

 

THE FUTURE
The AGS are supporting a current EIC incentive to develop best practice industry guidance with input from the EA / HSE / HSL/ BOHS and CL:Aire.  A CIRIA project has also been launched with similar goals so we may at present end up with two (or more!) pieces of industry guidance.     For the immediate future there is planned to be a workshop organised by CL:Aire in association with EIC & BOHS  at the Manchester Conference centre on the 1st November 2011.

Article Business Practice Contaminated Land Loss Prevention

Notes on Asbestos liability and Insurance Issues

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From ABI Seminar on the availability of insurance for asbestos related risks and the impact of the new asbestos regulations

The ABI provided a series of well qualified and experienced speakers to address this topic from a selection of viewpoints. The delegates fortunate enough to attend came from a wide range of professions including consulting engineers, construction contractors, insurance brokers, insurance underwriters, research bodies, trade associations, government agencies, solicitors, surveyors asbestos removal contractors, regulators and analytical laboratories.

The scene was set by Bill MacDonald of the HSE who outlined the historic and future problems associated with asbestos. Currently asbestos related deaths run to around 3500 in the UK and are expected to rise until 2011, when the effects of improved working conditions and asbestos prohibitions will begin to kick in. However the nature of how the effects will diminish cannot be predicted. The new Regulations (Control of Asbestos at Work Regulations, 2002) react to conditions now, which indicate the greatest risk is due to occupational exposure within buildings, especially for workmen involved in internal and maintenance trades. The Regulations only apply to non-domestic properties

The Regulations impose a ‘Duty to Manage’ asbestos risk by assessing existing conditions, recording the findings, preparing action and management plans and advising/cooperating with others with respect to asbestos risks. The ‘Duty Holder’ is the person with contractual responsibility for maintenance repair of the building and may be the owner, occupier, managing agent, but in all cases will be ‘in control’ of the building.

The HSE advice is to: Adopt precautionary approach -NOW Carry out condition surveys – SOON Plan compliance strategy -START NOW These should take into account that compliance is a rolling process and that expenditure should be proportional to the level of risk. The HSE website has relevant information and guidance www.hse.gov.uk/campaigns/asbestos. HSE Information line 08701 545500

The background to why asbestos has become a major insurance issues was provided by Helen Hatchek of Royal Sun Alliance. The asbestos insurance market is global and it is the influence of the US experience, which is driving the market at present. Public liability claims are currently at $200 Billion and rising (equivalent to the twin towers x2), with average claims T $6-6.5Million. Under US law, most claims fall under public/product liability as employers cannot be sued. As such all industries in the supply chain are potentially affected. Class actions are normal, and due to joint and several liability, claimants target the defendant with most ‘funds available’. There has also been successful ‘unimpaired’ health claims, where compensation has been awarded for ‘worry’/ stress and cost of on-going health screening.

Although, all claims to date are related to Employers liability and judges currently set awards which is less emotive that those set by a jury, the UK market is showing signs of following the US. This has led to concern that additional claims may arise through public liability due to subrogation from Employers liability claims, ‘shake-down’, neighbours, product liability and corporate responsibility. The market has reacted by re-insurers excluding asbestos in its entirety, insurers have introduced exclusion and limitation wordings and in a market of declining appetite, some insurers have removed all cover, leaving limited availability.

Matt Farman of Howden Insurance Brokers discussed the developments in the PI market. They offer a bespoke scheme for UKAS accredited laboratories.

The current insurance market is hard with high premiums and restricted cover, but it should be borne in mind that insurers are commercial bodies and do not need to be exposed to high risks. Asbestos exclusions appeared in 2003, driven by the re-insurance market in light of huge asbestos related claims and losses suffered by the Employers Liability and Public Liability insurers worldwide, with an even more unsure future. In 2003 RICS voiced concerns about the lack of asbestos cover and set up a working party .to find a solution. This involved the asbestos cover being excluded by the re-insurers but with a ‘write-back’ clause added by the insurers reinstating some limited and very restricted cover. Typically this is around £250,000 on aggregate, ie the re-insurance limit. It is generally only available at the discretion of the insurers. The cover is limited to claims arising from negligence for rectification, remediation and loss in value, but excludes consequential loss and any form of bodily injury.

In the same way that ‘Pollution and contamination’ cover was originally withdrawn and the market softened so that it is now currently available on a restricted and ‘aggregated’ basis, asbestos cover may follow the same path, depending on how the re-insurance market responds to future events and information. However, in order to achieve the best available cover currently, professionals, their governing bodies and trade associations need to be pro-active to demonstrate sensible levels of risk assessment and management. This may include only offering suitable terms and conditions to clients, with restricted cover based on a multiple of fees and excluding consequential loss, using only experienced and qualified staff.

Insurance from a buyers perspective was discussed by Kevin Goodwin of AIRMIC Contractors Group. He noted that insurance was generally not available, but due to time lags over renewal dates, some contractors still had cover whilst others were unable to provide on-going cover, except where a ‘write-back’ clause could be negotiated. There is also a wide variation in the exclusion clauses seen with no apparent consistency.

In France and Germany, the problem is being addressed by government funding being provided to cover personal injury asbestos claims, but the UK government has not shown any sign of adopting a similar approach. Indeed, tightened regulations, which generate more asbestos ‘activity’, have coincided with the insurers pulling out of that market.

Liabilities with respect to asbestos for many can arise from a variety of sources. Typically those most affected are likely to be employers/property owners, consultants, contractors (licensed or not) and facilities manager. Insurance policies in all areas have responded to the asbestos risk.

Employers Liability:   may exclude asbestos cover, but cover may be found based on demonstrable risk management, but unlikely for asbestos contractors.

Public Liability: possible total exclusions, of which there are numerous versions, with possible ‘write-backs’.

Professional Indemnity: check wording of exclusions, PI liability will probably be covered but all health hazard risk excluded.

Director and Officer Insurance: -exclusions possible. Beware of clauses such as ‘Board’s failure to act under Regulations.’failure to maintain insurance’ (which may not be available!),

Beware of ‘silence’ within any policy. This should be queried.

In all cases, to demonstrate risk management to be able to obtain the best terms available, compliance with Regulations 9,10 and 15 of the CAWR 2002 will be essential ie employer ensuring adequate training of staff, and limiting potential exposure to minimum levels. However, where insurance is difficult and costly to obtain, there is potential for growth of the ‘black market’ contractors, ie with no insurance.

Roger Flaxman explained how RICS, as a professional body representing members dealing with asbestos, are approaching the problem associated with lack of available cover for its membership. Generally chartered surveyors face a high risk/reward ratio and are in competition with lesser qualified /experienced ‘inspectors’. P402 is seen as a low technical standard and RICS members believe that they would be expected to provide a higher standard. If the surveyors work to a higher standard and hence risks are reduced, proof of this should make obtaining affordable insurance a greater possibility. To this end RICS have introduced the National Individual Asbestos Certification Scheme (NIACS). This requires proof of suitable professional qualifications as a foundation to membership, supported by increased training requirements, and individuals (not forms) being examined and audited on technical capability related to both asbestos and building construction. It is further proposed that the NIAS qualification will be linked to UKAS accreditation.

Conclusions

The introduction of the CAWR Regs 2002 has coincided with re-insurers withdrawing from the asbestos insurance markets due to a huge potential for future asbestos related claims worldwide. This has resulted in insurance policies all excluding asbestos. The only way cover can be obtained is under ‘write back’ clauses where insurers provide very restricted and limited cover aggregated within the limit of the re-insurance requirements. This cover does not include any bodily injury claims. This insurance is also only available at the discretion of the insurers , typically to established clients who have a good no-claims record and demonstrate an adequate level of risk assessment and management with respect to asbestos.

The market is currently uncertain and therefore hard. Once the true level of risk becomes clearer and the insurance purchasers recognise that there is an onus on them to educate the insurers and re-insurers of the actual asbestos related activities and associated risks for which cover is required, it may be possible to purchase more bespoke cover. This is the aim of qualifications such NIACS as proposed by the RICS.

However it is unlikely that cover for ‘bodily injury’ will ever become available and there is a case for governmental provision to cover some of the future uninsurable compensation claims arising from asbestos issues.

Report by Jo Strange Card Geotechnics

Footnote: Policy wordings are very variable and must be studied carefully.