Government left shipyard workers to face asbestos risk since 1970s

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The European Court of Human Rights has upheld, unanimously, a violation of the right to life and the right to respect for private and family life, of ship repair workers who were exposed to asbestos for a number of decades beginning in the 1950s to the early 2000s which led to them suffering from asbestos related conditions.

In a Chamber judgment in the case of Brincat and Others v. Malta, the Court said that in view of the seriousness of the threat posed by asbestos, and despite the room Malta had in taking positive steps against this threat, the government neither legislated nor took practical measures to ensure that the applicants were adequately protected and informed of the risk to their health and lives.

“Indeed, at least from the early 1970s, the Maltese government had been aware or should have been aware that the shipyard workers could suffer from consequences resulting from the exposure to asbestos, yet they had taken no positive steps to counter that risk until 2003," the Court said.

The government has been ordered to pay €30,000 jointly to the applicants in one of the four cases; €12,000 to John Mary Abela, €1,000 to Francis John Dyer, and €9,000 to each of the remaining applicants; and €24,000 to all claimants jointly in legal expenses.

The applicants are 21 Maltese nationals who were, or are the immediate family of, employees of the Malta Drydocks run by the government from 1968 to 2003 who had been exposed to asbestos and in certain cases suffered conditions – and in one case passed away of a malignant cancer – linked to exposure to asbestos.

The applicants alleged that they and their relatives were constantly and intensively exposed to asbestos particles during their employment repairing ship machinery insulated with asbestos. In May 2009 all the applicants brought constitutional redress proceedings alleging that the State had failed to protect them from unnecessary risks to their health and they sought compensation.

They alleged that the authorities had to have been aware of such risks as early as 1938, when the link between asbestos exposure and respiratory disease had first been documented, and that the shipyard employees had neither been informed nor protected from the dangers of asbestos in any way.

Moreover, they alleged that the government had failed to properly legislate or take practical measures concerning the removal of asbestos. They further complained that they had been denied an effective remedy by the Maltese courts.

Former chief justice Vincent de Gaetano, the Maltese judge in the European Court of Human Rights, was one of the judges in the decision taken by the Strasbourg court.

The Court found that the Maltese government knew or ought to have known of the dangers arising from exposure to asbestos at least as from the early 1970s, given the domestic context as well as scientific and medical opinion accessible to the government at the time.

The applicants were left without any adequate safeguards against the dangers of asbestos, either in the form of protection or information about risks, until the early 2000s when they had left employment at the ship repair yard, other than the applicant who had died earlier).

Legislation which was passed earlier, in 1987 did not adequately regulate asbestos related activity nor did it provide any practical measures to protect employees whose lives may have been endangered.

In view of the seriousness of the threat posed by asbestos, the Court said the Maltese government had failed to satisfy their positive obligations, to legislate or take other practical measures under Articles 2 and 8.

The Chamber judgment is not final and during the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.