Human rights court is to hear asbestos case
‘Men not informed of danger’
About 20 former dockyard workers suffering from the effects of asbestos inhalation have taken their battle for compensation to the European Court of Human Rights, which has given the government four months to reply. They are joined by the family of another worker who died from cancer caused by asbestos.
The workers claim the Maltese government, which owned the Malta Shipyards between 1968 and 2003, failed to fulfil its “positive obligations” to protect their life against the cancer-causing fibre and inform them they were exposed to any danger.
They had been “constantly, heavily exposed” to asbestos when working at the dry docks, their lawyer Juliette Galea argues. The material was stocked in storerooms while ships containing asbestos regularly came in for repairs. This involved breaking apart fibre casing, releasing asbestos particles into the air in the process.
Once the repairs were completed, the mechanical parts had to be again encased in asbestos. Not only were the particles inhaled but they settled on the clothing they carried back home, affecting their families.
The men said they now suffer respiratory problems and areas of calcification on the lungs, known as plaques. One of them died in 2009 from mesothelioma – an aggressive cancer caused by asbestos – and his compensation case is being followed by his family.
Asbestos is a mineral fibre used in construction materials for insulation and as a fire retardant, especially in ships. The fibres are too small to be visible but if inhaled can accumulate in the lungs.
The symptoms of mesothelioma or asbestosis – irreversible lung scarring – do not show up until many years after exposure.
The men turned to the ECHR after three Maltese judges sitting in the constitutional court upheld previous judgments which said their request for damages should have been filed in a civil court and not a constitutional one.
Among other things, the complainants failed to use all the legal remedies available to them, the appeals court ruled, turning down their request for moral damages which they made on the basis of another ECHR judgment. The European court has now accepted to hear the case and the Maltese government has four months in which to submit its replies on whether it was aware of the risk associated with exposure and whether measures listed in international treaties were implemented.
The government must say whether the employees were warned about the risks and whether it fulfilled its “positive obligation” to protect their lives.
The court has also requested the government to give its position, and possibly proposals, about an out-of-court settlement.
In their application, the men pointed out that the link between asbestos and respiratory disease was documented as early as 1938 and the link between the fibre and the cancer was established in the early 1960s.
At that time, Malta became a member of the International Labour Organisation and World Health Organisation, which had both raised awareness about the danger of asbestos since the 1950s. This meant that information about asbestos was available and that the authorities should have known of the danger.
However, they “were neither informed nor protected from the dangers of asbestos in any way”, they said.
The first available information about the fatal consequences of asbestos, which was not “publicly disseminated”, was a 1989 judgment that established the Malta Shipyard’s responsibility for Joseph Pellicano’s death from mesothelioma in 1979.
No action was taken after the judgment and the employees were told that “adequate ventilation” and cloth masks would protect them, they said.
After a number of their colleagues passed away, the men ran a number of medical tests including X-rays that revealed a “considerable presence” of asbestos in their lungs which had formed plaques.
This suggested there was a “strong probability” that there were fibres in their stomach lining and other digestive organs while also making them more prone to mesothelioma.