British Asbestos Newsletter

Issue 18 : Winter 1995

Table of Contents:

1. Parliamentary Lobby on behalf of Asbestos Victims

2. British Statistics

3. Escalation of US Claims at T&N plc

4. Asbestos Claims Continue to Rise at Lloyd's of London

5. Research in Finland

6. Asbestos Contamination in Germany

7. Landmark Ruling in Western Australia

8. Asbestos Exposure & Lung Cancer

In Appreciation of Dick Jackson

It is with great sadness that we announce the sudden death of Dick Jackson on October 30, 1994. Dick, founder of the Hull Asbestos Action Group and stalwart anti-asbestos campaigner, began his working life as a thermal insulation engineer and was first exposed to asbestos when lagging pipes in the Hull dockyards. Exposure to asbestos continued throughout his working life and Dick died from mesothelioma only six weeks after the disease was diagnosed.

Dick was a pivotal force in the British anti-asbestos movement for more than twenty years. During this time, he worked tirelessly on both a national and international level: assisting British victims in their struggle for compensation and liaising with a network of like-minded individuals and groups throughout Europe. Dick's enthusiasm, determination and humanity will be sorely missed.

1. Parliamentary Lobby on behalf of Asbestos Victims

Members of Clydeside Action on Asbestos, a group representing Scottish asbestos victims, led a Parliamentary lobby on November 22 which proposed the repeal of legislation behind the operations of the Compensation Recovery Unit (CRU), a branch of the Department of Social Security that recoups state benefits from asbestos victims who succeed in obtaining judicial compensation of more than £2,500 ($4,000).

Speaking on behalf of the lobby Ian McKechnie, Assistant Secretary for Clydeside Action on Asbestos, called for the abolition of the CRU and the reimbursement of victims whom the CRU has penalized. Set-up in 1989, the CRU's role is to recover state benefits, including income support, unemployment benefit, statutory sick pay and disablement benefit, awarded to victims who have obtained more than £2,500 through court action against employers and others. Up to five years worth of benefits can be reclaimed. In 1990/91 the CRU clawed back £3.7 million; by 1993/94 it collected £81.9 million. Civil servants appear confident that an annual target of £150 million will be achieved.

While the operations of the CRU affect a broad spectrum of personal injury claimants, it was logical that the focus of the day's activities would be on the plight of asbestos victims who have, according to Clydeside Action, "been disadvantaged more than any other group in society by this legislation." During the day at the House of Commons members of the lobby, sponsored by Tony Worthington, Labor MP for Clydebank and Milngavie, gave a press conference, met with MPs and other political representatives and presented the case to Frank Field MP, the chair of the influential House of Commons Select Committee on Social Security.

Tony Worthington, MP who has previously asked Parliamentary questions about the operations of the CRU, submitted an Early Day Motion to Parliament on November 17, 1994 which called for the abolition of the unit. The motion was signed by more than 200 MPs belonging to the Labour, Liberal Democrat, Scottish National, Irish Nationalist, Ulster Unionist and Welsh Nationalist Parties.

Frank Maguire, a Scottish solicitor specializing in personal injury litigation and a member of the lobby, believes that "the reasoning behind the Act (which established the CRU) was the idea that if the victim received benefit and compensation then there was an element of over compensation." According to Maguire, this theory ignores the basic difference between benefit, to which victims are entitled having paid National Insurance contributions, and compensation, "paid because the law gives you the right to damages against any person or body which negligently causes you harm." In his analysis of the repercussions of the CRU's activities, Maguire explained that the £2,500 cut-off has been used by defendants to pressurize plaintiffs in civil actions into accepting miniscule payments rather than risk losing larger sums to the CRU. The longer the cases are pending, the higher the state benefits received and the more the victims have to lose.

On December 19, the Select Committee on Social Security announced its intention to re-examine the workings of the CRU and the "policy behind the legislation on which it is based." Nick Wright, a committee assistant, has requested that Clydeside Action on Asbestos submit written evidence for the Committee's consideration. Oral evidence will be heard in London on February 8.

2. British Statistics

Published in November, 1994, The Statistical Supplement (ISBN: 0-7176-0852-2) to the 1993/94 Annual Report of The Health and Safety Commission confirmed the continuing upward trend in deaths from asbestos-related diseases in Britain and predicted that the number of deaths from these diseases will increase "very probably until 2010 and possibly up to 2025." The number of compensated asbestosis cases has trebled since 1981. Concern was expressed in this report about the occurrence of asbestosis resulting from exposure after the introduction of the 1969 Asbestos Regulations which are admitted to have had limited effect in controlling asbestos-related occupational disease.

The figures quoted in this report are of limited value as computer problems at the Office of Population Censuses and Surveys have delayed the computation of current death certificate statistics. The most recent year covered remains 1991, the same as in the 1992/93 statistical report and even the 1991 figures are classified as provisional. The difficulty in accurately calculating the number of British deaths from asbestos-related lung cancer is recognized: "the mesotheliomas currently being seen are likely to be matched by an equal or greater number of asbestos-related lung cancers..."

A more precise method for quantifying the number of asbestos-induced lung cancer deaths and one which is bound to yield far higher statistics is found in a September statement by a spokesperson for the Health & Safety Executive (H&SE):"it is estimated that for every death due to mesothelioma, there are two from asbestos-induced lung cancer." The September statement also predicts that the death toll from asbestos-related diseases in Britain could reach between 5,000 to 10,000 annually. In response to this escalation of preventable deaths, the H&SE has announced plans to "target guidance at the specific occupational groups such as construction & demolition workers, plumbers, carpenters, electricians, painters & refurbishers which it suspects as still being at risk." In addition, H&SE-sponsored research into asbestos-related matters will be reviewed and support for Professor Julian Peto's investigation into the occurrence of mesothelioma in younger victims is proposed.

3. Escalation of US Claims at T&N plc

T&N plc announced an "exceptional provision of £100 million for US asbestos-related disease claims in the 1994 accounts" in a press release issued on November 29, 1994. Attempting to minimize this development, it was claimed that the trend in asbestos claims still looks promising. Three months ago Colin Hope, T&N's chairman and chief executive, had predicted that "asbestos-related costs will now stabilise and then enter a period of progressive decline" following a judicial settlement reached in the US. A NatWest research analyst told the Financial Times that: "the manner and way in which the £100m exceptional charge has arisen can only be described as disconcerting."

While the T&N board "does not expect the exceptional charge to affect payment of the final dividend for 1994 or the excellent prospects for the Group in 1995 and beyond," shareholders' confidence had been shaken and T&N's shares experienced a 25 per cent fall in two days.

4. Asbestos Claims Continue to Rise at Lloyd's of London

Published in December, 1994, The Chatset Guide to Syndicate Run-Offs 1994 quantifies the on-going costs of asbestos bodily injury and property damage claims to Lloyd's of London syndicates. In a three page discussion, an underwriter from Syndicate 219 describes current trends in U.S. asbestos litigation which include bodily injury claims by construction and shipyard workers, property damage claims for asbestos removal and/or sealing and general liability claims from plaintiffs living/working in the vicinity of asbestos facilities.

The number of asbestos bodily injury claims increased from an average of 2,000 claims received monthly in the year ending May, 1992 to an average of 2,500 claims for the twelve months ending May, 1993. An asbestos summary for Syndicate 604 is depicted in chart format which illustrates the continuous rise in asbestos losses experienced by a Lloyd's syndicate between 1987-1993. Total asbestos losses for this syndicate nearly doubled, rising from $46 million in 1987 to $85 million in 1993. The figures quoted include the cumulative net paid plus notified outstanding claims.

5. Research in Finland

Occupational asbestos exposure, pulmonary fiber burden and lung cancer in the Finnish population (1994) is the title of the doctoral dissertation written by Antti Karjalainen and presented on June 17 to the Medical Faculty of the University of Helsinki. This work set out to: examine asbestos exposure among lung cancer patients in Finland, evaluate and compare the effectiveness of scanning and transmission electron microscopic procedures in measuring the presence of mineral fibers, study the links between asbestos exposure and the different types of lung cancers and pleural plaques and produce an overview of the health risks of asbestos exposure to Finnish society.

Reviews of research and papers previously written are noted as a background to the author's own conclusions which include confirmation of widely held beliefs as well as controversial findings. After pulmonary mineral fiber analyses of 135 lung cancer patients and 300 referents, Dr. Karjalainen accepts the usefulness of SEM, TEM and X-ray microanalysis, the correlation between lung fiber burden and asbestos exposure and the need for pulmonary fiber analysis. The author states that: "Past exposure to asbestos is a significant factor in the etiology of lung cancer in men in Finland. The asbestos-associated risk seems to be higher for pulmonary adenocarcinoma and lower lobe tumors than for squamous cell carcinoma and upper lobe tumors. The risk was similar for exposure to anthophyllite as compared to crocidolite/amosite fibers."

Of particular interest to asbestos victims' legal representatives is Dr. Karjalainen's finding that asbestos-related lung cancers can occur in the absence of asbestosis or fibrosis: "The observation of a lower lobe predominance of cancers among asbestos-exposed individuals without histologically evident diffuse pulmonary fibrosis and the increased risk estimates among exposed individuals without fibrosis support the view that exposure to asbestos increases the risk of lung cancer even in the absence of fibrosis." This finding is reiterated in another 1994 paper entitled: Asbestos exposure and the risk of lung cancer in a general urban population which appeared in The Scandinavian Journal of Environmental Health. Written by Dr. Karjalainen and three colleagues, this paper also concludes that "asbestos increases the risk of lung cancer even in the absence of asbestosis."

6. Asbestos Contamination in Germany

A British asbestos removal expert has estimated that this year's bill for the removal of asbestos from German offices, hotels, universities, hospitals, schools and factories is running at $190 million. The costs can only escalate as German administrators and city officials grapple with the problems caused by the widescale use of asbestos before 1979 in tens of thousands of German buildings where it was used on fire protection and sound absorbent panels. Asbestos has been found in the buildings of large companies such as IBM in Stuttgart, German Telecom and the Bundesbank in Frankfurt, branches of the Deutsche Bank throughout West and East Germany, Opel's car factory near Frankfurt, Audi's plant near Stuttgart, Ford's facility in Cologne, Frankfurt airport, the main government building in Berlin, schools throughout the country and every major German utility and power generator. Before completing the withdrawal of US forces from Germany, $15 million worth of work will be required to decontaminate former army bases.

In Germany, as in the UK, waste asbestos is buried in controlled landfill sites. Currently, work by the firm Inertam on a new French process for disposing of asbestos is being carried out. Although not yet operational, a mobile furnace is being engineering which can transform asbestos waste into an inert, vitrified end-product suitable for use as road aggregate. The U.S. firm GTS Duratek already has technology available which uses a temperature of 2,000 degrees to transform asbestos waste into glass suitable for use in counter tops, ceramic tiles, bricks and road building materials.

7. Landmark Ruling in Western Australia

A judgment by the Full Court of the Supreme Court of Western Australia on October 18, 1994 marked a landmark in Australian asbestos litigation. John Gordon, representing the plaintiff, expects that the decision will have repercussions for hundreds of Australian lung cancer victims who have previously been denied compensation for exposure to asbestos because of smoking.

In 1991 Mrs. Elizabeth Culkin sued CSR, her late husband's employer, after he died from lung cancer. Although Culkin had been exposed to asbestos in the course of his employment as a fitter and welder at the CSR sugar refinery, the company refused to pay compensation on the grounds that Culkin had been a smoker. On July 16, 1993 the Workers' Compensation Board found that Mr. Culkin's death from lung cancer "was caused by a combination of his smoking habits and the inhalation of asbestos fibre on the respondent's premises" and ordered CSR to compensate his widow. The October, 1994 ruling was the culmination of CSR's appeal.

The appeal was heard by Judges Rowland, Pidgeon and Seaman. Much of Judge Rowland's comments focused on research undertaken in the U.S. by Professors Hughes and Weill and reported in their 1991 paper "Asbestos as a precursor of asbestos related lung cancer: Results of a prospective mortality study." Judge Pidgeon discussed the evidence given to the Workers' Compensation Board by Weill as well as the 1991 article which concluded that: "Finally, these data may provide further evidence to support the common practice of attributing lung cancer to exposure to asbestos only if asbestosis is also present; otherwise, the tumors are, in most cases, due to cigarette smoking." Although Culkin was found to have had mild asbestos- related interstitial lung disease, asbestosis was not diagnosed as the disease was focal and not diffuse. Nevertheless, the Court was convinced of the increased risk of injury caused by Culkin's exposure to asbestos and upheld the 1993 ruling. Mrs. Culkin was awarded Australian $34,000.

Robert Vojakovic, the President of the Asbestos Diseases Society of Australia, said that "until now no lung cancer claims linked to asbestos had been successful unless the person also had asbestosis." Vojakovic expects that this ruling will spark a flood of cases throughout Australia. CSR has sought special leave to appeal to the High Court.

8. Asbestos Exposure & Lung Cancer

An interesting series of articles appeared in Volume 26 (1994) of the American Journal of Industrial Medicine. Pages 835-844 contain commentaries by American and British scientists on the links between asbestos exposure and the occurrence of lung cancer.

Does Asbestos or Asbestosis Cause Carcinoma of the Lung? (p.835-838) written by VL Roggli et al reviews the research and findings of several scientists and concludes that: "the association between asbestos exposure and carcinoma of the lung is indisputable." In his article: Asbestos Inhalation, Not Asbestosis, Causes Lung Cancer JL Abraham (p.839-842) calls for continuing discussion of the relationship between asbestos exposure and lung cancer and highlights the problems for scientists arising from the medico-legal implications of the debate. Abraham does not believe that "there needs to be asbestosis to attribute lung cancer to asbestos" and questions the value of the 1993 study of large airway burden by Churg & Stevens.

In Thoughts Inspired by Reading the Correspondence: Hughes and Weill vs. Roggli et al., April, 1994 Dr. Morris Greenberg (p.843-844) casts doubt on some of the sacred cows in asbestos research work including the reliance on traditional methods for measuring environmental asbestos dust concentrations. Greenberg also discusses "the confusion in the field of dose responses for asbestos in the various asbestos diseases" which arises from the uncritical use of lung dust burden. Closer attention to fundamental toxicological principles which define the critical dose as that quantity of the agent or its metabolite acting on the critical cell, tissue, or organ, that leads to the disease under consideration is required.

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Compiled by Laurie Kazan-Allen for the LKA Group*

*LKA Group:

LKA Services Ltd.

Jerome Consultants