Brincat and Ors. v. Malta

From 1968 to early 2003 the applicants were employees at the state-owned Malta Drydocks Corporation (MDC), where they alleged they were exposed to asbestos. The applicants also alleged that the asbestos particles settled in their clothing and were carried home, affecting their private life. Asbestos had been known to be dangerous since the 1950s, however, the employees of MDC were not informed of the dangers of asbestos, nor were they protected from it. In 1989, MDC asbestos was implicated in the death of Paul Pellicano, and damages were awarded. Following that judgment, employees were assured they were protected from asbestos by adequate ventilation and fabric masks. One applicant died from asbestos-caused cancer, and the other applicants were sick with illnesses caused by asbestos fibers in their bodies.

The applicants claimed that their rights under Articles 2, 3, and 8 of the Convention for the Protection of Human Rights (“Convention”) had been violated. Article 2 protects the right to life, Article 3 prohibits torture or inhuman or degrading treatment, and Article 8 protects the right to private and family life.

The Court found that the Republic of Malta violated Articles 2 and 8 of the Convention. Given the scientific evidence available, the Maltese government knew or ought to have known about the dangers of being exposed to asbestos from the 1970s onwards. The court also pointed to the 1989 court decision in the death of Paul Pellicano as indicating that the MDC knew about the effects of asbestos. The applicants were left without any effective safeguards against the asbestos or knowledge of the risks of exposure.

The court dismissed the argument that the applicants had yet to exhaust all their domestic legal options, and should file a claim in tort action.  The court held that in the event of a breach of articles 2 and 3 of the Convention, compensation for the non-pecuniary damage flowing from the breach should in principle be available as part of the range of possible remedies. The same was true of the applicants’ complaint under Article 8 which in this specific case was closely connected to those provisions. Noting that under Maltese law the constitutional remedy, unlike a civil action in tort, was capable, in theory at least, of affording appropriate compensatory redress in respect of both pecuniary and non-pecuniary damage, and that there was no pre-existing mandatory legal requirement to bring an action in tort before using the constitutional remedy, the Court considered that the applicants could not be blamed for having pursued one remedy instead of two.

“The applicants noted that they were seeking damages arising from death and grievous bodily harm which were not the result of normal torts such as a traffic accidents but which were a result of the Government’s failure to fulfil their positive obligations under the Convention, namely to safeguard a person’s life, to investigate properly any death or harm for which the State was responsible, to provide information about any risk to life or health, and to identify the persons responsible for the violation.” Para. 51.

“It would therefore appear that no information was ever collected or studies undertaken or reports compiled specifically about the asbestos situation at the applicants’ place of work. Furthermore, the Government did not even argue that any general information was, in fact, accessible or made available to the applicants. Instead the Government, seemingly oblivious to the obligations arising from the Convention, opted to consider that it was not their responsibility to provide information at the outset and that anyone in such a work environment would in any case be fully aware of the hazards involved. The Court considers the latter statement to be in stark contrast to the Government’s repeated argument that they (despite being employers and therefore well acquainted with such an environment) were for long unaware of the dangers. The Court further finds inappropriate the Government’s contention that the distribution of the above-mentioned masks was an implicit source of information. Additionally, in relation to the Government’s reference to the information available at the OHSA, the Court notes that this authority was only created after the year 2000 and it could therefore not have been a source of information before that date. It follows that in practice no adequate information was in fact provided or made accessible to the applicants during the relevant period of their careers at the MDC.” Para. 114.