Summary
In the first of a series of our Law Behind the Headlines podcasts, Richard Burrows, Principal Associate and Peter Ward, Legal Director discuss the recent high-profile disturbances of asbestos in public buildings, and how schools and NHS buildings in the UK could be the setting of a vast number of asbestos-related injury claims in the future.
Transcript
Peter Ward: Hello and welcome to this first Law Behind the Headlines podcast in relation to recent press attention regarding asbestos in public buildings.
Peter: I'm Peter Ward, a Legal Director in Weightmans' national disease team, and I'm joined today by Richard Burrows, Principal Associate, also in Weightmans' national disease team.
Peter: And we're going to be delving into the changing landscape of asbestos-related injury claims and the likely shift in the demographic of claimants in the coming years. So without further delay, Richard, welcome to this podcast.
Peter: Now, it seems that not a week goes by at the moment when asbestos isn't identified in a building or a situation where it could be encountered by members of the public.
Richard Burrows: Thanks, Peter. Yeah, you're right. Since the start of 2022, I've almost lost count of the number of different scenarios and settings where asbestos has been unexpectedly encountered, with the general public coming into, at the very least, very close contact with the same.
Richard: So that can be in a theatre, on the London underground, or even going to school, or going into hospital.
Peter: And is that something which has transpired relatively recently, or has it been going on for a number of years?
Richard: So I think that the general public have been coming into contact with asbestos in these settings for a number of years, but it appears that as time goes by, with many of these buildings being renovated and demolished, asbestos, which has remained in place for a number of years, is now being disturbed. And it's the disturbance of the asbestos which has given rise to potentially negligent exposure to the same.
Peter: So I think the most high-profile discovery of asbestos in public buildings in recent weeks has been at the Houses of Parliament. So how exactly did that arise?
Richard: Yes, that's certainly one of the most recent discoveries of asbestos, which stands out in my mind due to the high-profile nature of the building in which the asbestos was located.
Richard: So essentially in 2016, a report deemed the Houses of Parliament to be riddled with asbestos and the building themselves were said to be in a poor state of structural repair, not just in relation to asbestos, but in terms of maintenance overall.
Richard: So there was a recommendation given that staff should be temporarily relocated to another building so that a thorough renovation of the buildings could allow for asbestos to be removed safely and more cost-effectively. But there were some objections to the proposed relocation, including by Jacob Rees-Mogg.
Richard: So it seems that as part of this restoration work, specifically that which took place between October and November late last year to the speaker's apartments on the parliamentary estate, this disturbed asbestos and would have exposed workers and members of the public in those parts of the Houses of Parliament at around that time.
Peter: And how exactly would MPs and members of the public have come into contact with asbestos if they were simply in the building at the time?
Richard: So it's the disturbing of asbestos and release of fibres, which causes the same to be inhaled by us as humans. Therefore, it was probably the uncontrolled removal and disturbance of asbestos at the same time that MPs and others were working in the building and they may well have inhaled asbestos produced as a consequence of that maintenance work.
Richard: What's perhaps most infuriating, particularly to those who are likely to have been exposed to this asbestos in those circumstances, is that it's likely that MPs and peers are now going to have to move away from the Houses of Parliament for a period of up to two decades anyway.
Richard: So I think it's demonstrates that no matter how obstructive and inconvenient removal of asbestos is deemed to be, it is essential that it's removed safely and in compliance with the careful legislative framework, which we have in place in this country to ensure the safety of the general public, whether that be employees or simply passers-by.
Peter: Now, it's quite startling to me that a building such as the Houses of Parliament, which is in the public eye and in which asbestos legislation originated, is also the setting of potentially negligent exposure to asbestos itself.
Richard: Yes, definitely. The difficulty is — and it always has been — is that for a period of time, asbestos was considered to be such a brilliant material to use in the construction of buildings due to its fireproof qualities.
Richard: It was used on such a wide scale, but it's inevitable that it will still likely lie in buildings which have not been structurally repaired or maintained for a number of years.
Richard: So a lot of our public buildings in the UK have now quite dated. If you look at our hospitals and schools, for example, even if the interiors of the buildings have been decorated and renovated over time, the main structures are almost identical to what they were when the buildings were originally constructed.
Richard: So in some cases, that means that the buildings can date back more than a century.
Peter: So just turning to schools, a number of individuals go in and out of those buildings, obviously. Now is it likely that they too could have been exposed to asbestos because almost every child in the UK will have attended a school at some point. So surely that generates quite a wide pool of people exposed in that setting?
Richard: Yeah, you're right. And studies actually show that female primary school teachers now have one of the highest prevalences of mesothelioma as an occupational group, and figures vary between studies but it's believed that between 350 and 400 school teachers have died from mesothelioma since 1980, which might not sound like a too great number, but 249 of those have died sadly since 2001. So in the last 20 years or so.
Richard: So it works out at a rate of about 19 each year. And it's not just school teachers who are potentially exposed to asbestos in schools, there's been instances of caretakers, cooks, cleaners, secretaries, teaching assistants, nursery nurses also dying from cancer within the same period.
Richard: It's actually suggested that, aside from teachers and staff and in relation to the pupils themselves, a five-year-old child is over five times more likely to develop mesothelioma by the age of 80 than their teacher, who is aged around 30.
Richard: And I think that's likely due to the lag time between being exposed to asbestos and mesothelioma developing. So someone can be exposed to asbestos and not develop nuclear until 20, 30, 40 or even more years later. So with children potentially exposed at a very young age, they have their whole lifetime in which to develop an asbestos-related injury with school teachers, who may not be exposed to asbestos until later in their life, it's entirely feasible, again, unfortunately, that they may die from another cause before they show symptoms or develop any asbestos-related injury.
Peter: And so is it the same with the Houses of Parliament in that individuals will only become exposed to asbestos if the asbestos is disturbed and does that mean that unless there's any substantial renovation work carried out on schools, the likelihood of exposure is quite slim.
Richard: Yeah, you're right, in that substantial renovation work may disturb asbestos, which is in place at schools, but it's also likely that staff and pupils could also be exposed to asbestos from other disturbances.
Richard: And some of the examples that have arisen in the past have been the slamming of asbestos-containing doors, pushing in drawing pins and staples into asbestos display boards and studies also suggest that some amount of asbestos-related fibers are released from something as seemingly innocuous as removing books from a classroom stationery cupboard with an asbestos insulation board back.
Richard: So it may not be something as extravagant as renovation work, which exposes an individual in a school to asbestos, but something that could be taking place on a daily basis and which is considered to be fairly innocent.
Richard: If we put it in context, there's approximately 33,600 schools in Britain, and it's believed that more than 75% of them contain asbestos. It's anticipated that almost all schools that were built before 1975 contain asbestos.
Richard: So widespread is the problem that the government policy tends to be that if asbestos is in good condition, then it's better to manage and maintain it rather than spend the money to remove it.
Richard: Asbestos in schools can be in floor and ceiling tiles. It can be in exposed pipework in classrooms, corridors and boiler rooms. It can also be in window frames, insulation boards, spray finishes on walls, ceilings, columns, exterior roofing and also insulation surrounding boilers.
Richard: So you can see from that list of potential asbestos-containing settings that teacher or pupil could come into contact with asbestos fairly frequently, even if only in small doses.
Richard: So rather than being exposed to a single event which released a significant number of asbestos fibers into the air like, for example, with the Houses of Parliament, it could be that small amounts of fibers are being released on a regular basis, entering the respiratory zones of those people that are in the school for one reason or another.
Peter: And you also briefly touched upon asbestos in NHS buildings, now they're also buildings which have a large number of people coming and going, aren't they?
Richard: Yeah, that's right. As of 2018, it's believed that 9 out of 10 NHS Trusts have hospitals which still contain asbestos, albeit they were said to have been registered as containing the same, with the asbestos safely maintained within them. So it's not necessarily that negligent exposure will be happening at the same time.
Richard: Between January 2013 and December 2017, there were 352 asbestos-related injury claims from those alleging exposure to asbestos in NHS buildings. So this resulted in payments of £6.8 million in relation to claims brought by employees and patients and their businesses.
Richard: NHS buildings are again buildings which will have which will likely have a large number of visitors going into them, whether that be from doctors, nurses and other health care workers or patients and people visiting them.
Peter: And how do we anticipate that exposure to asbestos in public buildings will change the claimant landscape going forward?
Richard: So it remains at present that the majority of claims for asbestos-related injuries come from those who were involved directly with working with asbestos in their trades.
Richard: So these claims tend to come from industrial workers or people who worked in close proximity to laggers and factories, power stations and other generally industrial settings. But what we may see now, especially with the press attention attached to the same, is that more and more claims would be brought from white collar workers and also individuals who may have visited premises containing asbestos, but not necessarily in an employment capacity.
Richard: So whilst exposure to asbestos in an employment setting is fairly easy to assess, both in terms of the likelihood of the same and also the quantity of respiratory respirable asbestos fibers likely ingested. The difficulty with exposure in scenarios such as schools and NHS buildings is that such a vast number of people visit these buildings on a daily basis. And it's going to be difficult to prove that an individual was, for example, exposed to asbestos when visiting a hospital in the 1980s, when there's unlikely any record of them visiting that building to confirm the veracity of their allegations.
Richard: Also, for instance, if a claim is brought by a supply teacher who may have worked in a variety of schools across a number of different local authorities, how can we accurately identify what exposure took place and where?
Richard: In terms of calculating the apportionment of the exposure, it's difficult enough, with an industrial claim for asbestos exposure to weight the exposure between different employers. But if we have an individual who works across a multitude of different buildings in which they were potentially exposed to asbestos, then this becomes even more difficult and claimants will be even less likely to recall with any precision exactly what exposure took place and where.
Richard: What helps, I suppose, in claims at present is that certainly the exposure from 1960 onwards is often recorded on an HMRC schedule, which details a claimant's list of employers, but there's not going to be such record for potential claimants bringing claims in relation to exposure in public buildings.
Richard: So it's perhaps one that employers are something to look out for going forward is that the public buildings and offices that have records of who has been attending them need to keep those records now, because it's unlikely they're going to have records dating back to the 80s, 90s or even 2000s for the same.
Richard: So that will make it very difficult to properly respond to any allegations made of exposure to asbestos in those settings if we've got no evidence that the claimant was actually in the building in the first place.
Peter: And what can be done now to stem potential claims for asbestos-related injuries in the future? Is it now too late to stop a potential opening of floodgates for such claims in relation to exposure in public buildings?
Richard: Certainly in relation to potential exposure to asbestos in years gone by, it is, unfortunately, likely too late to take any steps to remedy the same.
Richard: As we've recently touched upon, part of a successful defence will depend on the claimant establishing whether they were indeed exposed to asbestos in the settings alleged.
Richard: Therefore, if organisations do have records which record who attended the premises on what days and for how long the person was there, these should be stored because they might be useful in the future.
Richard: And in relation to those buildings which are still to this day encountering asbestos, which has remained in place for a number of years, it's of the utmost importance that they comply with the relevant legislation and regulations for the safe removal of asbestos to minimise even any potential exposure to asbestos by workers, visitors and employees.
Peter: So it's clear to me that claims for asbestos-related injuries may likely evolve in the coming years, with claims potentially arising from different circumstances than we are historically used to seeing. And it will certainly be interesting to see as time goes by, whether the press attention now given to exposure to asbestos in government buildings, NHS buildings, schools and the like will encourage the claimant market to focus on those, and it will certainly be one to watch for the future.
Peter: So that's it for today's podcast and it remains for me to thank you, Richard, as it's been really interesting to talk to you and thanks to all for listening as well. And just remember to listen out for our next Law Behind the Headlines podcast.