In response to a survey of asbestos in 16 British schools by the Asbestos Training and Consultancy Association, Marsh, the world’s leading insurance broker and risk adviser, has outlined some of the risk management and insurance processes that schools should be taking to identify and manage their asbestos exposures.
Kevin Molloy, UK Leader of Health and Safety in Marsh Risk Consulting, explained: “All schools, regardless of their ownership or funding status, should have conducted asbestos surveys in order to begin compliance with the Control of Asbestos Regulations 2006. This legislation stipulates that organisations have a duty to identify where asbestos might be in its buildings and what condition it is in, therefore enabling it to accurately assess the risk it poses to teachers, pupils, support staff and the wider general public.
“If the initial assessment identifies asbestos-containing materials in any buildings, current Health and Safety Executive policy suggests that it should be left undisturbed and subsequently managed, rather than be removed. Schools then need to develop a robust asbestos risk management plan which is kept up to date and is fit for purpose.
“Ensuring legal compliance by completing a ‘tick-box’ exercise and creating an Asbestos Register is simply not enough. These plans need to be reviewed and routine inspections of asbestos material should be conducted on a regular basis to ensure that the risk has not changed over time.
“The issue regarding when an Employers’ Liability insurance policy is triggered for mesothelioma related claims is being contested through the courts under a test case, Durham v BAI (Run-off) Limited. If the courts rule that the policy should be triggered when the illness develops, rather than at the time of infection, then insureds will potentially have a gap in insurance cover, relating to the years between exposure to asbestos and the actual manifestation of any disease.
“This principle already applies to Public Liability insurance following the Bolton Metropolitan Borough Council and Municipal Mutual Insurance case, which covers any claims relating to pupils that have contracted an asbestos-related illness. Aside from the obvious duty of care, schools may run the risk of sizeable financial losses in the future, depending on the outcome of this appeal, if they fail to manage asbestos materials on their premises effectively in the long-term.”
Marsh published research in October 2009 on actual mesothelioma cases before the Queen’s Bench Division of the High Court of Justice in London which highlighted the range of UK occupations and industries affected by diseases such as mesothelioma.
Over a third (36%) of the cases examined were from 1956 to 1960, making it likely that initial exposure would have been 40 years prior to the effective start of a claim. This indicator, supported by data from the Health and Safety Executive which indicates UK mesothelioma claims are expected to peak in 2016, suggests that it is likely that affected employees will have been exposed to asbestos between the late 1960s and mid 1970s. The final settlement values in the cases reviewed ranged between £50,000 and £200,000.
Ian Pelham, a Managing Consultant at InSolutions, part of Marsh’s Risk Consulting Practice, added: “Marsh’s research highlights that few, if any, industries are immune to the possibility of mesothelioma claims. Mergers and reorganisations in the second half of the 20th century have resulted in many public sector entities now being unaware of their potential exposures to asbestos-related claims.
“With the fast track approach to claims, championed by Senior Master Whitaker, in place in the courts entities now have a very limited time window to locate their legacy employers’ liability coverage, once they received notice of a potential claim.
“If local education authorities or independent schools have not yet investigated their potential future liabilities, it would be prudent to do so now. They should ensure that they review and understand their history and that, where available, they catalogue copies of their old employers’ liability policies and store them safely. If an entity becomes aware of a potential gap in its insurance record that might give rise to a mesothelioma claim, it should investigate whether the insurers from that period can be found as a matter of urgency.”