BRITISH ASBESTOS NEWSLETTER
1. Update: UK Asbestos Compensation
2. Clampdown by Health and Safety Executive?
3. Advances in the Treatment of Lung Cancer
4. News Round-up
1. Update: UK Asbestos Compensation
Expectations of substantial increases in court awards for personal injury plaintiffs were dashed on March 23 by the Court of Appeals’ rulings in a series of test cases. The judgment of Lords Woolf, Beldam, Otton, May and Mr Justice Nelson was a de facto rejection of the Law Commission’s Report (number 257) which had recommended up to 100% increases in the non-pecuniary loss component of such claims. The Appeal Court judges felt that only "a modest increase is required to bring some awards up to the standard, on which both sides are agreed, namely to a sum which is fair, reasonable and just." Two of the eight decisions being appealed were asbestos cases: Rees v Mabco and Schofield v Saunders & Taylor Ltd. The award to the relatives of Mrs Florence Base, a mesothelioma victim whose exposure to asbestos occurred whilst washing her husband’s work overalls, was increased from £45,000 to £50,000. The estate of Keith Schofield received a derisory £4,000 increase for his death in 1996 at the age of fifty-seven; the 10% uplift in general damages for pain, suffering and loss of amenity brought the total compensation to £114,000.
Defendants in asbestos cases do not like to go to court; on the rare occasions that they do so, they are loathe to let the judicial process run its course. Having conceded liability just days before a civil action began, defendants could not agree on the apportionment of damages to a former industrial cleaner. Proceedings were brought to an abrupt end on the last day of the trial when Chard Janitorial Supplies Ltd., General Cleaning Contractors Ltd. and Rentokil Initial PLC made an offer of £500,000 for the mesothelioma of Mr. T, a fifty-two year old businessman. For over three decades, the plaintiff had been in regular contact with asbestos during "high-level cleans" of thousands of industrial, commercial, public and local authority premises. Recently, the case of Plaintiff F vs British Gas was settled at the 11th hour when the defence offered £130,000 for the mesothelioma victim’s death. Although retired, Mr. F had been a full-time carer for his disabled wife and son; this was reflected in the £72,500 ear-marked for their past and future care costs. Following the Court of Appeals’ ruling in Rees vs Mabco, £50,000 was considered an appropriate amount for general damages, with the remaining £7,500 constituting the statutory bereavement award. Allegations that the late James Emerson’s mesothelioma stemmed from exposure to damaged asbestos lagging at a London hospital were never tested in a court of law. Instead, Camden & Islington Health Authority made an out of court offer of £1.15 million to his widow and three dependent children in March, 2000. Formal judicial scrutiny of this arrangement will take place in April, 2000 at the Royal Courts of Justice. Emerson, an eminent consultant plastic surgeon, studied medicine at Middlesex Hospital from 1966-1970; from 1972-1973, he was a resident houseman at the hospital. During these periods, he used an extensive underground system to walk from one building to another several times a day. Running through the network of passages was a plethora of cables and pipes carrying hot/cold water, electricity, gas, steam, sewage and telecommunications. Many of the pipes were lagged with asbestos insulation material, some of which was damaged. Emerson recalled maintenance men repairing the pipes. A newspaper article from 1977 corroborated this state of affairs: "parts of the underground area of one of London’s major teaching hospital, the Middlesex, have been closed down, and the stores kept there removed and decontaminated because of the presence of blue asbestos in pipe lagging."
In February, 2000 a landmark verdict handed down in the Queens Bench Division of the Manchester High Court acknowledged the dangers from erratic exposure to asbestos. A joint case against Shell Tankers UK Ltd. and Cherry Tree Machine Co. Ltd. resulted in a court award of over £270,000 to the families of two deceased seafarers. The proceedings were brought under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976 (as Amended). Common law negligence was the basis of the case against Shell, while the claim against Cherry Tree, co-defendant in the second claim, was also based upon breach of statutory duty. Concluding that the employers’ actions had contributed to the deaths of Miller Jeromson at age 60 and Peter Dawson at 68, Deputy High Court Judge R. D. Machell QC awarded their widows £157,794 and £113,356 respectively. The defendants have given notice of their intention to appeal.
"Was exposure sufficient to give rise to a foreseeable risk of injury at the material time" even though the known risk was asbestosis and not mesothelioma, the illness which proved fatal to both men? From 1952-1957, Mr Dawson was employed by Shell as a maritime engineer on board the Verena, Tectus, Haustrum, Hadriania, Hyalina and Trochisaus. Mr. Jeromson was similarly employed from 1957-1961 on board the Hyria, Nassa, Tomogerus, Hadriania and Rita. Although the judge accepted that "the engine room of these ships contained large quantities of asbestos by way of insulation… the mere presence of asbestos does not equate with exposure, which requires some disturbance of that asbestos. The extent of the disturbance represents the major issue of fact in these cases." Both Mr Dawson and Mr Jeromson spoke of asbestos exposure as a "frequent occurrence." According to Dawson: "Many running repairs on board ship in the boiler room or engine room would entail disturbance or removal of asbestos lagging… Jackets containing asbestos would have to be removed and replaced or alternatively asbestos cement chipped away. I therefore had frequent contact with asbestos throughout the whole of my period of employment with Shell Tankers." Days before he died, Jeromson recalled: "During the period of employment with Shell Tankers Limited I was frequently in close touch with asbestos, often in extremely dusty and hot conditions as was necessary to maintain ship machinery. This was particularly so on STS Hyria, HTS Hadriania and TES Tomogerus. Aboard the latter I was responsible for ‘mothballing’ the vessel at Lock Swilley, County Donegal, during which process, a lot of stripping and draining of machinery was undertaken. I actually assisted with removing asbestos from the machinery… I frequently carried out actual hands-on labor with asbestos… As all but one of the vessels I sailed on… were steam powered vessels (there would have been less asbestos in diesel powered vessels), there was a far greater likelihood of fatal exposure to asbestos as in my case."
Predictably, the evidence of the expert witnesses was conflicting. In his judgment, Machell homed in on internal discrepancies within the testimony of Brian Barnard, one of Shell’s experts: "A greater contrast between written and oral evidence would be difficult to envisage." In a written submission, Barnard asserted that during his years with Shell he had never "seen clouds of asbestos dust." He was confident that work with asbestos lagging materials only occurred on rare occasions, perhaps "once in 3 months." During cross-examination however Barnard "conceded that the removal of asbestos on major leaks entailed cutting into asbestos or removing asbestos rope, and that these instances constituted the work of any one man of the three on duty, so that, in addition, each man might be in the vicinity of other men carrying out similar work on a similar number of occasions." The Court’s criticism did not end here; another statement by Barnard was introduced during cross-examination. In a case brought by Mrs Ridges, the widow of a deck officer, Barnard had said: "Common running repairs consisted of removal of lagging mats… These mats were quite often old and the stuffing leaked from the material. The pre-formed pipe lagging was made of a solid asbestos and sometimes had to be cut back with a saw to allow removal of the mats and bolts." The testimony of another Shell witness underwhelmed the Judge who commented: "I largely discount the evidence of Captain Parker." The defence’s concept of average exposure lost out to one of potential exposure based "upon the great variety of experience of individual engineers." The repair of leaks at joints and flanges, a process which generated liberal amounts of asbestos dust, was required many times a week. Burst pipes and other emergencies necessitated "much greater removal of lagging, both from the burst pipe itself, and from adjacent pipes affected by the burst. The probability is that any necessary removal of lagging would be quite extensive, and would be undertaken by crude methods." Handling of poorly maintained asbestos mattresses, manual mixing and spreading of asbestos compound and annual dry docking operations all contributed to the "potential exposure to asbestos dust."
The Merewether and Price Report (1930), the Asbestos Industry Regulations (1931), Section 47 of the Factories Act (1937), Annual Reports of the Chief Inspector of Factories in 1938, 1943, 1949, and 1956, correspondence from the Chief Inspector of Factories to shipbuilding and ship repairing companies in 1945 and to power station companies in 1949 and 1954 were used to support the conclusion that during the relevant period, a reasonable employer would and should have known that asbestos dust was "highly dangerous." Citing the judgment in the Margereson v Roberts case, Machell echoed Justice Russell’s comments: "liability only attaches to these defendants if the evidence demonstrated that they should reasonably have foreseen a risk of some pulmonary injury, not necessarily mesothelioma." Forced to choose between the precedents of Gunn v Wallsend Slipway & Engineering Company Limited (1988) and Owen v IMI Yorkshire Copper Tube (1995), Machell opted for the later agreeing that the dangers posed by asbestos were "sufficiently uncertain in their extent and effect, in the 1950’s, for employers to be under a duty to minimise exposure." The risk from substantial and regular exposure to asbestos could not be "brushed aside as far-fetched." Shell was negligent; simple precautions were not taken, expert advice was not sought. "If proper care had been taken in considering the potential circumstances of a marine engineer’s work, in the context of the available literature, these exposures would not have continued unprotected. In reality, Shell (in common with many employers) did not give a second thought to their marine engineers’ potential exposure to asbestos dust." Pauline Chandler, Mr Jeromson’s solicitor, said: "Since the judgment was given I have been contacted by a number of marine engineers who… were actually employed by Shell and are concerned about their own future health because they can identify with the description of work given by the Claimant’s witnesses in this case. This judgment would benefit not only them but lots of other people who have had limited, intermittent or occasional exposure to asbestos during their working lives."
During Mr Dawson’s employment with Cherry Tree, he was occupationally exposed to dry asbestos fibres at regular intervals. Between 1946 and 1948, he prepared and applied six batches of asbestos flock to dry cleaners’ presses every week. The case against Cherry Tree succeeded under Regulation 2 of the Asbestos Industry Regulations 1931 which stipulate that "mixing or blending by hand of asbestos shall not be carried on except with an exhaust draught effected by mechanical means so designed and maintained as to ensure as far as practicable the suppression of dust during the processes." Machell agreed with the interpretation of the term, "as far as practicable" as given in Brooks v Coates, 1984 by Justice Boreham: "I take practicable in this context to mean a precaution which could be taken or undertaken without practical difficulty." As the provision of an exhaust draught to suppress the dust would not have necessitated any practical difficulties, the claimant established a breach of Regulation 2.
Jurisdictional problems could have been anticipated in this case; Miller Jeromson was after all a foreign national working for a UK company. These did not arise, however, as Mr Jeromson had been employed by Shell Tankers UK from their London base and not from his native New Zealand. Other overseas plaintiffs haven’t been so lucky; last year both Mr. Justice Buckley and the Court of Appeal decided that a UK court was an inappropriate forum for the personal injury lawsuit brought by Hendrik Afrika, Cupido Adams and 1,537 other South Africans against Cape plc, formerly Cape Asbestos Co. Ltd. In March, 2000 the South African Cabinet announced its backing for an application to the House of Lords by Penuell Maduna, the Justice Minister. The diplomatic intervention has been taken to forestall jurisdiction being transferred to South Africa, the preferred forum of the defence. The hearing at the House of Lords is due to begin on June 19.
2. Clampdown by Health and Safety Executive?
The grim reality contained within the pages of the Health and Safety Commission’s 1998/99 report supports the overwhelming impression that the number of people dying from asbestos-related diseases has rocketed. A comparison of statistics from 1987 and 1997, the most recent year cited, is telling: while the number of deaths from asbestosis remained constant at 253, mortality from mesothelioma rose nearly 65%. The data in table A2.28 clearly shows an inexorable rise in annual deaths from 317 in 1974 to 1519, in 1997, an increase of almost 500%. Metal plate workers (including shipyard workers) and vehicle body builders (including rail vehicles) had mesothelioma rates more than six times the average; rates for plumbers and gas fitters were quadruple and for carpenters treble the average. Electricians, construction workers, construction managers, plasterers, builders and handymen, steel erectors, painters and decorators, scaffolders, production fitters, electrical plant operators, boiler operators, sheet metal workers, welders, upholsterers, chemical engineers, scientists and electrical and electronic production fitters experienced elevated rates of disease. As the incidence of asbestos-related lung cancer, the largest asbestos killer in the UK, remains unquantified, the HSE’s predictions are grossly underestimated. It is reasonable to assume that 2000 such deaths occurred in 1997. Twenty-six were recognised by Special Medical Boards, leaving 1974 victims unacknowledged and uncompensated. Although a raft of asbestos legislation and codes have been introduced, many observers have doubted the Health and Safety’s (HSE) commitment to enforcement. The number of proceedings brought by the HSE and derisory fines levied in 1998/99 are not reassuring. Six convictions under the Asbestos (Licensing) Regulations of 1983 produced average penalties of £1,583, while thirty under the Control of Asbestos at Work Regulations 1987 and four under the Control of Asbestos at Work (Amendment) Regulations 1992 resulted in average fines of £5,100 and £1,250 respectively. In November, 1999, the Deputy Director General of the HSE, David Eves, announced an initiative to name and shame those caught breaching health and safety legislation. "Our inspectors work hard to bring to book those who flagrantly break the law, and we seek publicity for our prosecutions in these cases to deter others from taking unacceptable risks." The HSE intends to publicise convictions in press releases and on its website. A supplement to the annual report will list convicted firms and individuals and record their offences. Interestingly, there will be a list of "crown censures, which are recorded when the HSE considers that, but for Crown immunity, the circumstances of a case would merit prosecuting a Crown Body."
High profile prosecutions and large penalties in recent months may echo this change of tactics. In November, 1999 a record UK fine of £120,000 was handed down to Reach Environmental Ltd., licensed contractors, for failing to adequately supervise asbestos removal operations carried out at a former Wills tobacco factory. Thirty Reach employees and thousands of residents from Hartcliffe, a Bristol housing estate, could have been exposed to asbestos during inadequately controlled stripping operations. Several prior warnings by inspectors had been ignored. Walsall Metropolitan Borough Council is considering an appeal against the size of a £35,000 fine imposed by Wolverhampton Crown Court for breaches of the Health and Safety at Work Act (HSWA) 1974 and the Control of Asbestos at Work Regulations 1987. The case arose from refurbishment work carried out in the foyers of two tower blocks in Darlaston, West Midlands in September, 1998. A carpenter, electrician and council caretaker had been endangered during the "brutal" removal of asbestos-containing ceiling tiles; the Council’s lack of management system and records led to the incident. Prosecutions are often brought against those carrying out on-site operations while the client, he who ultimately benefits from the dangerous cost-cutting, escapes liability. In a precedent-setting case, the developer, architects and demolition contractors were all charged for failing to enforce health and safety provisions. The case involved the redevelopment into luxury accommodation of Tehidy hospital in Camborne, Cornwall. On October 22, 1999, Exeter Crown Court concluded that the conversion work had been characterized by faulty stripping procedures, inadequate management controls and the illegal removal and disposal of asbestos insulation. Admitting charges brought under the Construction, Design and Management Regulations 1994, cost developer Raven (Cornwall) Ltd. £65,000 and Daniel Lelliot Krauze Ltd., the designers and appointed planning supervisors, £20,000. Infringements of the HSWA cost demolition contractor, Excavation and Contracting Company (Northern) Ltd., £1000. Legal action was also taken against John Henry Clark, a demolition sub-contractor, and Graham Bolton, the company’s site agent who has failed to answer charges; an arrest warrant has been issued. Ignorance is no defence; clients, professional advisers and contractors are required to satisfy increasingly strict standards. This year, a Consultative Document entitled: Surveying, Sampling and Assessment of Asbestos Containing Materials in Premises for Management Plans will be circulated. Asbestos awareness and management training should be priorities for all commercial organisations, local boroughs and property owners.
3. Advances in the Treatment of Lung Cancer
The development of new protocols may prove to be of benefit to patients with asbestos-related lung cancer. The earlier lung cancer is diagnosed, the better. Research into the effectiveness of fluorescence bronchoscopy (FB) and photodynamic therapy (PDT) is producing good results. Fluorescence bronchoscopes detect differences between normal and abnormal tissues enabling doctors to locate pre-invasive lesions and invasive carcinomas at an early stage. Researchers at the Bronchology Unit of Wythenshawe Hospital are "currently evaluating the sensitivity and specificity of the technique using high risk population groups in whom lung cancer is the single commonest cause of death; these include patients with asbestosis and survivors from treated lung and laryngeal carcinoma." A programme at the Yorkshire Laser Centre (YLC) to assess the comparative efficacy of White-light and FB in identifying cancer affecting the bronchial tree is on-going; four categories of high-risk individuals, including those with a history of exposure to asbestos, are eligible. The development of effective primary screening tests is essential as FB is too invasive and expensive a procedure to be used for blanket testing. Sputum screening, using molecular genetic and immunocyto-chemical markers to select potential patients, is one of the techniques being investigated.
Although some experts remain sceptical, the clinical value of photodynamic therapy (PDT) seems much more apparent. With adequate precautions, PDT is a safe method for the durable palliation of symptoms in patients with advanced obstructive tumours. According to Consultant Respiratory Physician Philip Barber, PDT "involves the intravaneous administration of a systemic sensitiser which is selectively taken up by tumour tissue, followed by the application of laser light of a specific wavelength… Tumour regression can be obtained in progressive or relapsed disease following conventional treatment. It is also a potentially repeatable therapy with excellent healing characteristics, and may be uniquely suitable for the early treatment of metachronous primary disease in high risk populations." A joint study undertaken by the YLC and the Universities of Hull and Leeds concluded that "PDT is effective in palliation of inoperable advanced lung cancer." Some patients with good performance status showed a "definite survival benefit in addition to palliation." Dr Jeremy George, a Consultant Physician in Thoracic Medicine, believes: "the excitement of PDT lies in its ability to eradicate very early lung cancers which can now be detected by FB. The combination of these two techniques may therefore allow patients exposed to asbestos, with very high risks of malignancy, to be diagnosed and treated in fairly rapid succession."
4. News Round-up
Apartheid’s legacy of dehumanisation and the effect on the health care of the majority of its citizens is the subject of the book: An Ambulance of the Wrong Colour by L Baldwin-Ragaven, J de Gruchy and L London. Research in the 1970s which revealed that the "risk of mortality in crocidolite (blue asbestos) mining areas due to asbestosis and/or mesothelioma as well as other cancers of the lung and stomach was elevated" in the Northern Cape Province was suppressed by a national research body which accepted the "definite responsibility towards all interested parties in this country, including the industrial sector."
In Consensus Kills AJP Dalton argues that twenty-five years after the Health and Safety Commission was established, four hundred people still die in work-related accidents, one million experience an occupational injury and two million get ill from working conditions per annum. Dalton is highly critical of the tripartite system of control in which government, employers and trade unions set the health and safety agenda.
The inaugural issue of the Italian journal Epidemiologia & Prevenzione featured B Castleman’s paper: Controversies at International Organizations over Asbestos Industry Influence and L Kazan-Allen’s contribution: Europe Bans Asbestos – Finally!
The current issue of the American Journal of Industrial Medicine contains a series of important papers. Medical Examination for Asbestos-Related Disease by SM Levin et al "delineates the steps necessary for the comprehensive screening and clinical assessment of individuals for asbestos-related disease, in order to assist physicians in identifying and preventing illness associated with exposure to asbestos among their patients." Confirming the "high risk of pleural mesothelioma due to occupational asbestos exposure," the authors of Occupation and Risk of Malignant Pleural Mesothelioma: A Case-Control Study in Spain do not dismiss the significance of domestic and environmental exposure. Asbestos Content in the Lymph Nodes of Nonoccupationally Exposed Individuals by EF Dodson et al "raises the question as to whether the lymph nodes, though (sic) less efficient clearance, may be better indicators of lifetime exposure to dust than lung tissue." Published letters to the editor on the subject of the Collegium Ramazzini’s call for an international ban on asbestos were five to one in support. Dr Richard Lemen, formerly the Assistant Surgeon General of the US Public Heath Service, Dr William J Nicholson, Professor Emeritus, Professor Cesare Maltoni, Scientific Director of the European Ramazzini Foundation, and Drs. Morris Greenberg and Barry Castleman produce cogent arguments endorsing these restrictions. The solitary voice of Dr J. Corbett McDonald advocates the continued mining and use of chrysotile "a remarkably safe and valuable natural resource."
Microscopic Identification of Asbestos Fibres Associated with African Clay Crafts Manufacture by K Khudu-Petersen et al describes the use of fibrous tremolite in hand crafted pots produced by women in a village in Botswana.
Compiled by Laurie Kazan-Allen
Ó Jerome Consultants