22-03-2010
What’s in a name?
Legal implications of the new asbestos guidelines on professional negligence claims against surveyors
The revised Health and Safety Executive guidance for asbestos surveys (HSG264) came into force at the end of January 2010, replacing the previous MDHS100. Whilst the name has changed, what else is new? More importantly, what do the changes mean in reality?
Given the increased emphasis on the role of the ‘Duty Holder’ (i.e. employer) in the new regulations, who will ultimately approve the surveyor’s asbestos survey, it will no longer be quite so easy to blame the surveyor if things are not in order.
Conversely, the surveyor will now find it more difficult to produce a less thought out survey and blame it on time or cost constraints. Surveyors who tender on a ‘pile them high, sell them cheap’ basis will quickly find that they do not get as many orders. The employer cannot now afford to accept such surveys even less than before for the following reasons.
Planning
The Duty Holder must now check the competency of the prospective surveyor in terms of:-
• Training - for example the surveyor’s procedures for health and safety training; and
• Resource – the surveyor must be allocating sufficient time and staff to the job.
Whilst the above will have implications on the cost of the survey, the Duty Holder must get involved and take an interest in the survey right from the outset. He will now not be able to treat the commissioning of the survey as a ‘tick box exercise’ and then complain to the surveyor. Moreover, the Duty Holder must make sure the report will be fit for purpose, which is quite a shift in the burden of proof if the results of a survey were ever to be tested.
Caveats
Although there is a renewed emphasis on the obligations of the Duty Holder, the surveyor is also under an important new restriction. The surveyor will need to agree any caveats in writing and expressly confirm to the Duty Holder which areas are not to be assessed.
The Duty Holder should not accept any restrictions on the areas to be assessed or any other caveats if this fetters his duty to manage asbestos. Otherwise, it does so at its own risk.
Final Checks
If the parties still do not understand what the final survey should contain, there is now an added fail-safe to the procedure. The Duty Holder is now obliged to check for, amongst other things, any obvious errors and that the report is fit for purpose in terms of the areas assessed and the samples taken.
The increased obligations on the Duty Holder means that surveyors are less likely to escape liability for poor performance. These processes and the emphasis on the pro-activeness of both parties limits any contractual limitations.
So are disputes over shoddy asbestos surveys now a thing of the past? In theory, there should at least be less of them. It is important to realise that the Duty Holder’s failures under the regulations, whether it be a failure to hire a competent surveyor or to check the surveyor’s report, does not automatically preclude actions against negligent surveyors. It will however help to clarify what is expected of each party in terms of the required thoroughness and due diligence of the employer.
The revised Health and Safety Executive guidance for asbestos surveys (HSG264) came into force at the end of January 2010, replacing the previous MDHS100. Whilst the name has changed, what else is new? More importantly, what do the changes mean in reality?
Given the increased emphasis on the role of the ‘Duty Holder’ (i.e. employer) in the new regulations, who will ultimately approve the surveyor’s asbestos survey, it will no longer be quite so easy to blame the surveyor if things are not in order.
Conversely, the surveyor will now find it more difficult to produce a less thought out survey and blame it on time or cost constraints. Surveyors who tender on a ‘pile them high, sell them cheap’ basis will quickly find that they do not get as many orders. The employer cannot now afford to accept such surveys even less than before for the following reasons.
Planning
The Duty Holder must now check the competency of the prospective surveyor in terms of:-
• Training - for example the surveyor’s procedures for health and safety training; and
• Resource – the surveyor must be allocating sufficient time and staff to the job.
Whilst the above will have implications on the cost of the survey, the Duty Holder must get involved and take an interest in the survey right from the outset. He will now not be able to treat the commissioning of the survey as a ‘tick box exercise’ and then complain to the surveyor. Moreover, the Duty Holder must make sure the report will be fit for purpose, which is quite a shift in the burden of proof if the results of a survey were ever to be tested.
Caveats
Although there is a renewed emphasis on the obligations of the Duty Holder, the surveyor is also under an important new restriction. The surveyor will need to agree any caveats in writing and expressly confirm to the Duty Holder which areas are not to be assessed.
The Duty Holder should not accept any restrictions on the areas to be assessed or any other caveats if this fetters his duty to manage asbestos. Otherwise, it does so at its own risk.
Final Checks
If the parties still do not understand what the final survey should contain, there is now an added fail-safe to the procedure. The Duty Holder is now obliged to check for, amongst other things, any obvious errors and that the report is fit for purpose in terms of the areas assessed and the samples taken.
The increased obligations on the Duty Holder means that surveyors are less likely to escape liability for poor performance. These processes and the emphasis on the pro-activeness of both parties limits any contractual limitations.
So are disputes over shoddy asbestos surveys now a thing of the past? In theory, there should at least be less of them. It is important to realise that the Duty Holder’s failures under the regulations, whether it be a failure to hire a competent surveyor or to check the surveyor’s report, does not automatically preclude actions against negligent surveyors. It will however help to clarify what is expected of each party in terms of the required thoroughness and due diligence of the employer.
