Worksafe has not prosecuted any landlords for failing to have asbestos management plans

Friday, 15 March 2019

Building owners have duties to manage asbestos well, but not having an asbestos management plan appears unlikely to result in prosecution.

It has nearly a year after the asbestos regulations came in and not a single commercial building owner has been prosecuted for failing to put in place an asbestos management plan.

Worksafe says it has also not prosecuted a residential landlord for failing to have an asbestos management plan.

The regulations came into force in April last year, as part of a plan to reduce the amount of exposure to asbestos dust that can lead to asbestosis, cancers and early death.

But while some tradespeople have been prosecuted by Worksafe for unsafe handling of asbestos, for building owners, even those caught with no asbestos management plan, the chances of being prosecuted, and fined up to $10,000 seem low.

* Botched asbestos removal job results in $35k

* Building owners are struggling with asbestos obligations

* Timaru firm fined $10,000 for breaching asbestos removal rules

* Create a 'Homesafe' to deal with asbestos threat, expert says

One residential landlord was found by the Tenancy Tribunal in January to have breached the asbestos regulations when he hired a builder to do work on his property, which spread asbestos fibres throughout the property, but the tribunal did not alert Worksafe to the breaches.

The tenant told Worksafe about the case, but it did not prosecute , though it ordered work on the site to stop until it could be done safely.

The builder hired to do the work, was also given a 'compliance letter'.

While Worksafe did not seek a fine, the tribunal awarded $4000 in exemplary damages for the breaches of the asbestos regulations to be paid by landlord Michael Rayner to tenants Adam Reis and Liat Reis.

The tribunal agreed that the landlord was in business and must must ensure the health and safety of tenants and ensure that work environments are without health and safety risks.

Homeowners need to work out where the asbestos is in their homes.

'The landlord cannot simply put their head in the sand and pass that risk over to [tradespeople]. The work site should be under the control of the landlord,' the tribunal said.

Asbestos has to be handled with care by workers wearing hazard suits.

Worksafe's general manager of better regulation and legal, Mike Hargreaves, said it was easy to focus on prosecution as the only method to ensure regulatory compliance.

WorkSafe had a range of enforcement tools, not just prosecution to help ensure that businesses meet their asbestos obligations, including eduction, he said.

Asbestos was used in thousands of building materials, and is present in hundreds of thousands of homes, government and commercial buildings.

It can be hard to spot, but as long as it is not in a 'friable' state, giving off dust, asbestos, is not a threat to human health.

Homeowners were not required to have an asbestos management plan, but had a legal duty to handle asbestos with care.

This week public health specialist Dr David Skegg pointed to New Zealand's failure to manage the threat asbestos poses to human health and life as one of four examples of public health failure.

In The Health of the People, he puts that failure down to the absence of a national agency for public health, which the country did have, until it was disbanded in 1994 by health minister Dame Jenny Shipley.

Had the Public Health Commission, which was seen as a threat by the alcohol, tobacco and food industries, survived, Skegg believed New Zealand would have a national asbestos strategy, just like Australia.

Without an independent public health agency, public health issues which were not immediately pressing were easy to ignore, he said.

'If exposure to asbestos caused cancer within weeks, there would have been immediate action. [But] because the process actually takes decades, New Zealand authorities were lulled into complacency long after the risks had been clearly documented,' Skegg said.

'Reports documented a rising toll of both asbestosis and mesothelioma. Mesothelioma is nearly always described as a 'rare' tumour but, in fact, there are now about a hundred people newly diagnosed with this cancer each year in New Zealand.

'In 2015 the number of deaths from mesothelioma (107) was double the number from cervical cancer, although most were at older ages. The great majority of deaths (84 per cent) were in men, reflecting the occupations at increased risk,' Skegg said.

'Asbestos probably causes an even higher number of cases of lung cancer. Asbestos exposure is the leading occupational cause of death in New Zealand. Sadly, this toll of avoidable deaths will continue for decades to come, while hundreds of millions of dollars are spent trying to remove asbestos from our buildings.'

Skegg said asbestos awareness, and safe handling, had improved, but a plan to lift public awareness was needed.

He did not support calls for an electronic register to be set up for asbestos management plans.

While he called for the establishment of a public health commission, he did not support the setting up of a government agency to deal with asbestos, as Australia has done, saying New Zealand was too small to justify the costs.

ASBESTOS TIMELINE

* 4500 years ago people in the landmass that is now Finland used asbestos to strengthened earthenware pots and cooking utensils.

* Large scale asbestos industries began in the mid-19th century. Early attempts at producing asbestos paper and cloth in Italy began in the 1850s.

* Canadian samples of early industrial asbestos products were displayed in London in 1862, and the first companies were formed in England and Scotland to exploit this resource.

* Industrial scale mining began in Quebec, Canada, in the 1870's.

* In 1899, the negative health effects of asbestos were first officially noted at Charing Cross Hospital in London.

* The first documented death related to asbestos was in 1906; a young man had died from pulmonary fibrosis after a 14 year career in an asbestos textile factory.

* The first diagnosis of 'asbestosis' was made in the UK in 1924; Nellie Kershaw was employed in Manchester, from 1917, spinning raw asbestos fibre into yarn. Her death in 1924 led to a formal inquest.

* By 1930, British authorities were concluding that the development of asbestosis was irrefutably linked to the prolonged inhalation of asbestos dust, and included the first health study of asbestos workers.This study concluded that 66 percent of those employed for 20 years or more suffered from asbestosis.

* The report led to the publication of the first Asbestos Industry Regulations in 1931, which came into effect on 1 March 1932. New Zealand's first asbestos regulations were in 1978.

* The UK banned the importation of asbestos-containing materials in 1999. Australia did it in 2003. New Zealand waited until 2016.