By Samantha Varela, Legal Risk Advisor at Aon South Africa

Built environment professionals are becoming increasingly aware of their roles and responsibilities set out in terms of legislation.  The legal and insurance implications for work done where asbestos is used or was used is far-reaching and requires adequate consideration and attention to detail.

It has been historically documented that the effects of exposure and inhalation of asbestos have been catastrophic, long-term and even fatal. Studies have shown that this includes fibrotic lung disease (asbestosis) and changes in the lining of the chest cavity. These diseases can ultimately result in reduced respiratory function and may even be fatal.  Long-term inhalation of asbestos fibres also increases the risk of lung cancer and mesothelioma.

The most recent Global Burden of Disease estimate of the number of asbestosis deaths is a staggering 3,495 and was published in 2016. Asbestos-caused cancer was identified in the late 1930’s but despite the damning evidence, it is still used across the globe. Various estimates have been made over time including those of World Health Organisation (WHO) and International Labour Organisation: reporting 107,000–112,000 deaths

Apart from the legislative requirement on all employers and even self-employers to comply with the Occupational Health and Safety Act and the regulations, discussed below, there is also a potential for employees to hold their employer liable should they suffer as a result of exposure to asbestos.

Such claims could be catastrophic. The costs associated with medical care and treatment, loss of income, the loss associated with the inability to work or loss of breadwinning capacity are just some of the legal implications for an employer.

It is important to note that the professional indemnity policy specifically sets out in its asbestos exclusion that:

“Notwithstanding any provision of this Policy including any exclusion, exception or extension or other provision which would otherwise override an exclusion, this policy does not cover any legal liability, loss, damage, cost or expense whatsoever or any consequential loss directly or indirectly caused by, arising out of, resulting from, in consequence of, in any way involving, or to the extent contributed to by, the hazardous nature of asbestos in whatever form or quantity.”

However, the reality is that many of our insured professionals work or have to work on sites and structures where there is existing asbestos. Insurers are aware of this and should a claim with regards to such a site ensue, the position is as follows:

The insured will be covered by their professional indemnity policy for negligent acts, errors and omissions in the provision of their professional services. Should they be working on an existing structure that has existing asbestos, they will still have cover should a claim ensue as a result of their professional negligence, i.e. a design defect or flaw.

Should a claim ensue as a result of the effects of the actual asbestos or exposure thereto, that will not be picked up by the PI policy or any other policy for that matter.

The law regulating asbestos is clear and is set out below:

1. The Constitution specifically contains environmental rights contained in terms of section 24 which states that everyone has the right:

(a) To an environment that is not harmful to their health or well-being; and
(b) To have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that

• prevent pollution and ecological degradation;
• promote conservation; and
• secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

2. In terms of Section 8 of the Occupational Health and Safety Act (“The OSH Act”) it is set out that every employer shall provide and maintain, as far as reasonably practicable, a working environment that is safe and without risk to the health of their employees.

3. The South African Department of Labour Asbestos Regulations (No.155 of 2001) (“the Regulations”)

Prohibit an employer or a self-employed individual from carrying out work that will put any person at risk from asbestos exposure.

• The Regulations require that, where asbestos forms part of a building, plant or premises, steps are taken to ensure that the asbestos is identified and that potential exposure of any person to the fibres is prevented or adequately controlled.
• No work is allowed to take place on asbestos before a written work plan has been devised and the necessary precautionary measures have been taken.
• Demolition or removal of asbestos can only be carried out by an approved asbestos contractor.

4. The regulations further set out that “However, the reality is that, many existing structures in our country and across the globe, already have existing Asbestos. Such structures requiring remedial work or additions thereto.

Where asbestos forms part of the structure of a workplace, building, plant or premises, the employer or self-employed person shall:

• take reasonable steps to ensure that he or she determines the location of asbestos in such workplace, buildings, plant or premises, where that asbestos is likely to release asbestos dust that could impact on health or pollute the environment;
• make and maintain a written inventory of the location of asbestos in such workplace, buildings, plant or premises.

Taking in to account the legal implications and the uninsurability of asbestos-related claims, one is forewarned about the severity of working in or around a site where asbestos is or was used. Specific attention is drawn to the legislative regulation around such work and the requirement to consider same effectively.