Issue link: https://maltatoday.uberflip.com/i/838705
48 maltatoday, SUNDAY, 18 JUNE 2017 Opinion T he First Hall of the Civil Courts, in its constitutional jurisdiction, held that the legislation concerning workers handling asbestos was not sufficient to protect them and as a result was a breach to their right to life. This was decided on 14 June, 2017 in Maria Rosaria Fenech v Principal Medical Government Officer and the Attorney General. Ms Fenech explained that her late husband died from respiratory complications derived from exposure to asbestos. Her husband John worked as a fitter at the Malta Drydocks and he together with his colleagues was exposed to asbestos for many years. The Drydocks workers became aware of the danger of asbestos without the support of their employer. This affected John Fenech's health, which caused his death. This was in breach of Article 33 of the Constitution and Art 2 of the European Convention on Human Rights. The applicants asked the Court to declare that John Fenech's right to life was breached and to condemn the defendants. The defendants presented a statement of defence disagreeing with John Fenech's widow that they caused his death. They argued that the Maltese government had been unaware that asbestos was dangerous and it introduced new legislation when it did become aware, which legislation was aimed to stop the importation of asbestos. Mr Justice Mark Chetcuti, who delivered the judgement, examined the evidence produced. Prof Joseph Cacciattolo, head of the medical department at the University of Malta, explained that there is a link between asbestos and lung cancer and this was established in 1960. Dr Ray Busuttil, Chief Medical Officer, said there was no information on asbestos on a national level from 1956 and 2010. Joseph Saliba, health and safety officer at Malta Shipyards up to 1993, confirmed that asbestos was widely used. It was confirmed that John Fenech worked at the Drydocks for 30 years and was exposed to asbestos. There was sufficient evidence that asbestos was dangerous from 1960, but in Malta the authorities took action in the 1990s. The Court examined Article 33 of the Constitution and Articles 2 and 3 of the European Convention, which read: "33. (1) No person shall intentionally be deprived of his life save in execution of the sentence of a court in respect of a criminal offence under the law of Malta of which he has been convicted." Article 2: "Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law." Article 8: "(1) Everyone has the right to respect for his private and family life, his home and his correspondence." The Court quoted from the European Convention on Human Rights in Brincat v Malta, which held: "The Court reiterates that Article 2 does not solely concern deaths resulting from the use of unjustified force by agents of the State but also, in the first sentence of its first paragraph, lays down a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction" The European Court of Human rights continued to say that the first legislation against the use of asbestos was drawn up in 1987. Furthermore, from this time to the early 2000s the legislation was insufficient to protect workers from asbestos exposure. Mr Justice Chetcuti held that he shares the same opinion of the European Court. The Court added that from the evidence produced John Fenech had died due to a serious omission by the State, when it failed to legislate on the dangers of asbestos. The State also failed to inform the public about the use of dangerous substances. As a consequence John Fenech continued to work for many years in a dangerous environment. As with regard to compensation, the court noted that John Fenech had worked at the Drydocks and his wife and family were at his side when he was unwell. It is clear that he suffered in his last years of his life. The court took into consideration the time from when John Fenech had retired from work to when he in fact became unwell. He died when he was 78, 16 years after he retired. As a consequence the court ordered that the Fenech family be given €9,000 in compensation. Dr Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates A development application entitled "to sanction existing residence structures post 1967 and demolish and reconstruct deteriorated roof slabs" was turned down by the Planning Commission after it was found that the proposal ran counter to ODZ policies, specifically policy 6.3 of the Rural and Policy Design Guidelines which allows for limited extensions to dwellings on condition that the residential use had commenced prior to 1992. Indeed, the Commission held that, in this case, the applicant failed to demonstrate that the premises were used as a dwelling prior to 1992 notwithstanding the property being described as an 'existing residence' in the proposal. Reference was also made to Thematic Objective 1 of the Strategic Plan for Environment & Development (SPED) which 'limits' the land take up for uses which are not necessary or legitimate in rural areas. Furthermore, the proposal was deemed to be in violation of Rural Objectives 1, 3, and 4. These objectives were designed 'to facilitate sustainable rural development by controlling the location and design of rural development, as well as the cumulative effect of such development.' As a reaction, the applicant filed an appeal before the Environment and Planning Review Tribunal insisting that the Commission's decision should be reversed. In his appeal submissions, the applicant went to explain that 'the only problem that the Authority found, was the fact that the address on the evidence submitted referred to Annunzjata, Triq Hal-Tarxien, Tarxien whilst today it makes part of Ghaxaq and the address is now Annunzjata, Triq Hal- Tarxien, Hal-Ghaxaq.' The issue was eventually taken up by the Ghaxaq Local Council, following which it released a written communication stating that 'the street originally named Triq Hal- Tarxien, Tarxien, today forms part of the locality of Ghaxaq.' This went to prove, according to the appellant, that his property, originally located in Tarxien, was subsequently registered in Ghaxaq. In reply, the Authority reiterated that there was a discrepancy between the address shown in the permit application (namely, Annunzjata, Triq Hal-Tarxien, Hal-Ghaxaq) and the addresses quoted in the 1991 Electoral Register (namely, Annunzjata, Triq Hal-Tarxien, Tarxien). In this light, the applicant failed to convince the Authority that the residential use was established prior to 1992 as required by policy. Moreover, the Authority held that it was not satisfied with the declaration released by the Ghaxaq Local Council whereby it was held that 'the street originally named Triq Hal-Tarxien, Tarxien, today forms part of the locality of Ghaxaq.' In its assessment, the Tribunal maintained that there was no dispute insofar as the name of the premises was concerned as both parties agreed that the building was known as 'Anunzjata'. The Tribunal noted that the 1991 electoral register showed that a building named 'Anunzjata' was located in Triq il- Gudja, Tarxien. Nonetheless, the boundaries were eventually changed in 1995 so that Triq il-Gudja now forms part of Hal-Ghaxaq as highlighted in the Council's letter. The Tribunal was therefore convinced that both registers referred to one and the same dwelling – the house known as 'Anunzjata'. Against this background, the Tribunal ordered the Authority to issue the permit. Dr Robert Musumeci is an advocate and a perit with an interest in development planning law Ghaxaq Council declaration saves application Robert Musumeci Tribunal convinced of one and same address – Changes due to 1995 boundary revisions Malcolm Mifsud Legislation failed to protect workers from asbestos