Issue 25: Autumn 1996
Table of Contents:
1. Asbestos Banned by France 2. T&N plc: Swings and Roundabouts
3. News for UK Asbestos Victims
4. Asbestos Seminars
5. News Round-Up
1. Asbestos Banned by France
Throughout 1996, a flood of newspaper articles, scientific papers and media coverage has documented the escalation of the anti-asbestos campaign in France. Pressure on the government culminated in June, 1996 with the publication of an authoritative report: Effects on Health of the Main Types of Exposure to Asbestos. Among other important conclusions, the report predicted that the French mortality rate from asbestos-related diseases will exceed 1900 in 1996; the majority of fatalities will be linked to occupational exposure. The day after this report was made public Jacques Barrot, the Minister of Labour, Health and Social Affairs, announced the imposition of a French ban on the manufacture, import and use of asbestos fiber and asbestos-containing products. Although there are some exemptions, asbestos cement, a product that "has been the most widely used material in France in finishing works since the end of the 1960s" is included in the ban which will come into force on January 1, 1997. The inclusion of chrysotile in the ban caused great concern at the Montreal offices of the Asbestos Institute which hurriedly advised members of steps being taken "to minimize the impact of the French decision in Europe and at the international level." These measures included: an emergency meeting of the Governing Council, implementation by the Institute's European Advisory Council of "a strategy aimed at avoiding the adoption of an asbestos ban at the level of the European Union" and mobilization of other pro-asbestos governments.
The French report, which supported many of the arguments espoused by anti-asbestos campaigners and agitated the Canadian asbestos lobby, was written by eleven experts working under the auspices of the French Medical Research Council (INSERM). The scientists spent six months trawling through more than twelve hundred international studies; information and statistics on the situation in France were also examined. The report drives a horse and cart through the claims of those trying to "rehabilitate" chrysotile (white asbestos), finding that "all asbestos fibres are carcinogenic, whatever their geological origin." Data implicating chrysotile fibers in the causation of lung tumors and mesothelioma are presented throughout the paper. The authors state that: "the increase in mortality from lung cancer arising from exposure to asbestos fibres is as high in populations exposed to chrysotile as in those which have combined exposure or exposure to amphiboles alone... populations exposed occupationally to fibres known commercially as 'chrysotile' have an indisputable additional mortality from mesothelioma."
Despite these findings, the Canadian government continues to actively support the asbestos industry. According to Arthur Eggleton, Canadian Minister for International Trade: "The jobs of 2,000 workers in the asbestos-mining area of Quebec depend on the world's continued acceptance of chrysotile fibre in applications where it is permanently encapsulated, e.g. asbestos cement pipe." In October, several Canadian scientists, trade and mining officials attempted to persuade French officials to weaken the ban on asbestos products. Commenting on the meetings in Paris, the Canadian Ambassador to France said: "We have no idea what the French will budge on... if they reach a decision against the use of asbestos, it will probably be because public opinion is strongly against its use."
The increasing diversity of occupations among asbestos victims which has been observed by English epidemiologists, is replicated in France; the INSERM scientists found that "instances of exposure to asbestos are to be found in a vast number of occupations... welders, dockers, laboratory technicians, painters and decorators, jewellers, metal workers, car mechanics, railway workers, etc... Moreover, as these occupations are not usually considered as being 'at risk', they are subject to less monitoring and fewer adequate protection measures." As in England, there is a high incidence of mesothelioma among French building workers: "The building trade alone currently accounts for one quarter of all the deaths from mesothelioma, with this proportion considered as probably being an underestimate."
Until recently, the problems of asbestos and asbestos victims have largely been ignored by the French government. With the INSERM report and subsequent ban, France has joined several other European countries which have banned asbestos. This outcome had probably not been foreseen when the Labour Relations Service and French Health Directorate commissioned the report in 1995. Over the last three years an informal coalition of academics, scientists, environmentalists and trade unionists has worked assiduously to raise the public's awareness of asbestos-related problems in France. The National Association of Asbestos Victims Support (ANDEVA) was set up in February, 1996 to formalize this association, to coordinate efforts on behalf of French asbestos victims and to lobby for a complete ban on asbestos. ANDEVA has worked closely with the Committee Against Asbestos, a group of 600 teachers, researchers and officials, to generate support for the 50,000 students and staff who attend Paris VI and Paris VII universities on the Jussieu campus. Built between 1968 and 1972, these institutions share what is believed to be the largest asbestos-riddled premises in the world. Much of the asbestos fireproofing which was sprayed on the universities' steelwork during construction is now deteriorating and therefore highly friable. In October, the Minister of Education finally announced plans for decontamination of the site; the asbestos abatement program will be carried out over a period of three years at a cost currently estimated to be in the region of $228.3 million (1,2 millard francs). A useful article about the current developments in France is featured in the current issue (No. 552) of the French publication Occupational Health (Travail & Securite).
2. T&N plc: Swings and Roundabouts
The last quarter has seen the continuation of a pattern characterized by swings from good to bad news at T&N plc, formerly the UK's biggest asbestos producer. Celebrations of the successful outcome of a major US property damage case were dampened by threats of more personal injury claims in the US and UK; hopes that a newly acquired insurance policy would reassure shareholders have been soured by predictions of a corporate take-over. The latest available financial results show that sales in the first half of 1996 were £38 million down on last year's figure while the £25 million sum reserved for asbestos-related charges remained the same.
In October, 1996 John G. Koeltl, a judge in the Southern District of New York, produced his ruling on two equitable claims for indemnity and restitution which were outstanding following last year's jury verdict in the case of The Chase Manhattan Bank, N.A. vs. T&N plc. Finding for the defendants, the judge stated that: "the jury verdict, that Chase did not prove that SLA (Sprayed Limpet Asbestos) fireproofing was defective and not reasonably safe, precludes a finding that there is a sufficient public health or safety risk." Among the thirty findings of fact, number 4 could be of interest to other plaintiffs: "For purposes of this action T&N acknowledges that it is responsible for the acts of its four United Kingdom subsidiaries including J.W. Roberts." Attorneys for Chase Manhattan are considering an appeal.
Within a month of Koeltl's ruling, other judicial developments presaged a rise in asbestos-related personal injury claims on both sides of the Atlantic. In November, the US Supreme Court agreed to review the decision of the Third Circuit Court of Appeal to decertify the Georgine class action. Although the opening briefs will probably be heard in December, a decision is not expected until July, 1997. Previously, T&N had warned that should decertification proceed the company would need to make provisions of £100m this year, twice as much as planned. In addition, the trend to subrogate asbestos-related personal injury claims is involving T&N in an increasing diversity of cases. In the previous issue of the newsletter, it was reported that Britain's foremost employers' liability insurer had issued writs against T&N to recover money previously paid out for 35 compensation claims. At the end of November, defendants Metro Cammell and T&N plc, as the parent company of J.W.Roberts, admitted liability in nine out of eleven cases being tried in the Leicester High Court. The nine plaintiffs are widows of Metro-Cammell factory workers; the Birmingham men were allegedly "exposed to asbestos as it was being sprayed onto the frameworks of railway carriages or whilst drilling into asbestos that had already been sprayed and dried onto the frameworks." One witness told the court that the factory was: "extremely dusty. The asbestos was flying about as we worked. At times it was like a blue fog. There were never any screens or anything to shield us." Discussions on the amount of compensation are on-going.
Previous attempts by T&N to quantify its future asbestos-related liabilities have been unsuccessful. On November 27, the company announced that it had structured a financial package to cap these liabilities which include: a provision of £373 million ($595 million) by T&N, funded over two to three years from free cash flow, the sale of non-core activities and external sources, and £500 million insurance cover provided by a consortium of European reinsurers for a one-off premium of £92 million. Sir Colin Hope, T&N's Chairman, claimed that: "The proposals are intended to bring to an end the uncertainty surrounding the asbestos issue that has overshadowed the Group for so many years. Together with the provision already in the balance sheet we now have over £1 billion of cover, about three times the central estimate of the present value of the liability." Following this announcement, T&N's shares leapt 32p to 176.5p. Some analysts fear that the cure could be nearly as dangerous as the disease and warned of a hostile take-over bid. Speculations are rife as to the identity of potential predators; US firms eager to expand into Europe, the engineering group GKN and the German firm of Siemens have been suggested.
On December 3, Hope wrote to T&N's shareholders to explain the company's provision for asbestos-related disease costs; he detailed the insurance package which had been assembled and described the company's plans to fund the huge sums required. T&N proposes to "reduce the Company's issued share capital by cancelling 60p of the capital paid up on each issued Ordinary Share, thereby reducing the nominal value of each issued Ordinary Share to 40p ... The Capital Reduction will create a reserve of approximately £319 million ... (which) will be applied to eliminate the deficit on the Company's profit and loss account." As the capital reduction requires the passing of a special resolution, an extraordinary general meeting is being convened in London on December 27th. Proxies must be received by 10:30 a.m. on December 25th.
3. News for UK Asbestos Victims
Two long-awaited government decisions were announced in November both of which will benefit asbestos victims. Changes have been announced in the 'clawback' operations of the Compensation Recovery Unit (CRU) and the prescription of asbestos-related diseases by the Industrial Injuries Advisory Council (IIAC) which should alleviate some of the hardships and delays encountered when compensation claims are made.
Solicitors' organizations and victims' groups have lobbied against the CRU since it was set up in 1989 to recover state benefits, including income support, unemployment benefit, statutory sick pay and disablement benefit, from victims who had been awarded more than £2,500 through court action against employers and others. The Scottish group, Clydeside Action on Asbestos, led a Parliamentary lobby against the CRU in November, 1994. In 1995, the House of Commons Select Committee on Social Security, chaired by Frank Field, conducted an enquiry into the recoupment scheme and the policy behind the legislation on which it was based. The Select Committee report: Compensation Recovery, was published on June 21, 1995; it condemned the operations of the CRU as "revolting to the ordinary man's sense of justice." A Compliance Cost Assessment (CCA) was then commissioned by the Secretary of State for Social Security to analyze the cost implications for insurers and businesses of the Select Committee's proposals. In early 1996 the CCA reported these reforms would increase premiums for employers' liability by 3.7-5.6% and for public liability by 1-3.9%. Recently, Roger Evans, Parliamentary Under Secretary of State for Social Security, informed the Clydeside asbestos group that "the Government has decided to reform the Compensation Recovery scheme at the earliest opportunity... Under the reformed scheme, compensators will be made liable to repay all relevant Social Security benefits paid to the successful plaintiff in respect of his injuries... Damages for pain and suffering will not be available for offset by the compensator, thus enabling this head of damage to be paid in full." The new rules will apply to awards or settlements made on or after the implementation date in October 1997. The twenty page Social Security (Recovery of Benefits) Bill, announced in the Queen's speech, received cross-party support at its second reading in the House of Lords on November 19.
On the day that IIAC's review into Asbestos Related Diseases (Cm 3467) was published, the Secretary of State for Social Security told Parliament that the government had accepted all its recommendations. Professor J. M. Harrington, the outgoing Chairman of the Council, expressed the hope that the changes in the present terms of prescription would "improve the speed with which benefit can be paid for this particularly unpleasant rapidly fatal cancer, and extend the cover provided by the scheme for people in whom this disease is caused by work." The report accepts that the incidence of mesothelioma is rising among victims from an increasing diversity of occupations. Appendix 2 includes a list of occupations in which exposure to asbestos could be significant. As well as the familiar trades some newer occupations such as environmental health officers, fishermen, manual workers in the processing of metal and electrical goods, fork lift operators, crane drivers and others are included. A note at the end of the report points out that: "significant exposure to asbestos may also have occurred in other occupations not included in the above list, particularly where the job did not involve working directly with asbestos but was carried out in an industry where asbestos was used (e.g. a clerk in an asbestos textiles factory) or in support services (e.g. laundering the protective clothing of workers handling asbestos)."
4. Asbestos Seminars
Two one-day seminars brought together asbestos victims, academics, professionals and union delegates in Scotland and England during the month of November. Capacity audiences attended the Glasgow and London conferences on November 6 and 19; because the second conference, held on-board HMS Belfast was sold out, the program was repeated on December 10 in Birmingham. The first meeting, organized by Clydeside Action on Asbestos (CAA), was sponsored by the General Municipal and Boilermakers Union and the Transport and General Workers Union. The objective of the conference was to bring together a cross-section of parties to explore the problems being caused by occupational and environmental exposure to asbestos. Ian McKechnie, CAA's Vice Chairman, told delegates that: "we have observed a disturbing phenomenon. A significant proportion of recently diagnosed cases are in the age group 40-45 years, an age group that was exposed at the workplace, after regulations were in place." CAA is calling for a complete ban on asbestos and its safe removal wherever possible. Other speakers explored medical and legal problems facing UK asbestos victims, the role played by national trade unions, the gulf between approved procedures and usual asbestos removal practices, the bureaucracy of the Department of Social Security vis-à-vis asbestos claims and the attempts, led by the Canadian asbestos lobby, to 'rehabilitate' white asbestos.
Asbestos Removal Operations - the New Reality was the title of the autumn scientific meeting of the British Occupational Hygiene Society (BOHS). Robin Howie, the BOHS President-elect for 1997, repeated the controversial findings from the report he co-authored last year: "for either crocidolite or amosite the available respirators do not provide adequate protection for either dry strips or for wet strips involving the use of power tools or grit blasting. Adequate protection is afforded only for well conducted manual wet strips of crocidolite or amosite and for well conducted strips of chrysotile." Susan Stranks, a post-graduate student, presented an informative paper on the effectiveness of wetting agents in the suppression of asbestos fiber release during the removal of asbestos ceiling tiles. From measurements taken during site visits and in laboratory tests, Stranks concludes that wetting agents used properly can drastically lower fiber concentration levels.
5. News Round-Up
Working with asbestos cement and asbestos insulating board (EH71) is the title of new guidance notes issued by the HSE. Aimed at contract managers, site agents, self-employed builders and general contractors, the eight page booklet lists the main uses of these materials, common brand names and means of identification; it explains the control limits set by and the precautions required under The Control of Asbestos at Work Regulations 1987. Tables listing average fiber concentrations produced by work with asbestos cement and board show that rough handling and machine cutting without exhaust ventilation generate dangerously high levels.
Asbestos Fibre Control by the Asbestos Control and Abatement Division (ACAD) provides practical advice for reducing fiber creation at source.
The Sizes, Shapes, and Mineralogy of Asbestos Structures that Induce Lung Tumors or Mesothelioma in AF/HAN Rats Following Inhalation by D.W. Berman et al. appeared in the journal Risk Analysis in 1995. The scientists "did not find a difference in the potency of chrysotile and amphibole toward the induction of lung tumors. However, mineralogy appears to be important in the induction of mesothelioma with chrysotile being less potent than amphibole."
Asbestos-Related Disease Claims - A Continuing Case for Concern in the 1990s and Beyond? is the title of a dissertation by J. M. Parsons, who concludes that: "The most frightening aspect of this situation is that men who were involved in the insulation trade appear to have been working with scant protection even up to the mid-1980's."
The Health and Safety Statistics 1995/96 reported an 8 % increase in mesothelioma (m) and a corresponding fall in asbestosis (a) deaths. The mortality rate (m + a) for 1994, the latest year for which figures are available, is 1409. Although deaths from asbestos-related lung cancer are "at least equal to the number of mesotheliomas and may even be greater," they are not included in the total which is therefore considerably understated. A regional breakdown of mesothelioma statistics show that between 1976-1991 the worst mortality rate in the country for males was in Clydebank, Scotland (212 deaths per million) and for females was in Barking & Dagenham, England (31 per million).
The Asbestos Guide: Photographic Supplement was launched at the Glasgow Asbestos Conference by the GMB; copies are available from union offices at £5. This booklet compliments The Guide to the Prevention of Exposure to Asbestos (and its supplement) previously issued by the GMB.
The case of Walker-v-London Borough of Bromley was settled with an out of Court payment of £70,000 to a widower represented by the London law firm of Field Fisher Waterhouse. Mrs. Walker died from mesothelioma in October, 1994. The Walkers had been council tenants for ten years. In 1974 the couple was advised that their home contained "metal frames set in breeze concrete against external asbestos cement block-shaped forms, and lined internally with flat asbestos cement sheets on battens." Prior to this notification, the Walkers had redecorated the house twice with Mrs. Walker sweeping up the asbestos dust generated by the stripping and sanding of walls.
Marlene Pryer, an asbestos widow, is calling for increased government funding for research into the treatment of mesothelioma and new medical guidelines so that other asbestos victims don't experience the delay in diagnosis and pain relief which was endured by her husband John who died in September, 1996.
Professor Nicholas Wikeley will be giving his Inaugural Lecture at the Faculty of Law at the University of Southampton on February 4. The talk, entitled: Asbestos in the Shipyards: Dust, Disease and Drafting Regulations, will begin at 5:30 p.m. Tickets are available.
An asbestos workshop will be part of the Sixth European Work Hazards Conference in Holland in March, 1997.
Compiled by Laurie Kazan-Allen