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|ISSN 1470-8108||Issue 49||Winter 2002-03|
Throughout last year, there was a sustained media offensive against plans to introduce "duty to survey" legislation designed to protect workers from asbestos hidden within the UK infrastructure.1 The dossier of errors, exaggerations and omissions which was the basis of this attack was fed to, and subsequently regurgitated by, members of the Conservative Party including its leader Ian Duncan Smith and Shadow Minister for Work and Pensions, John Bercow, whose complaints and letters contributed to a climate of uncertainty. For months, the regulations remained unsigned by the Minister. On October 24, 2002, a two-hour adjournment debate on the Control of Asbestos at Work Regulations 2002 (CAWR 2002) was held in the House of Commons at the request of the Conservative Party leader. The new Minister for Health and Safety, Nick Brown, told MPs:
"it is estimated that something like 500,000 commercial and public buildings across the country still have materials in them that contain asbestos. In many cases, no one is consistently managing the risks from the thousands of tonnes of asbestos in those premises. People working on those buildings, such as plumbers, electricians and other maintenance workers, often do not know that they are at risk from disturbing the material or whether their work is putting other users in the building at risk…The new duty to manage asbestos will require those who have responsibilities for maintenance activities in non-domestic premises to assess whether there is any asbestos in their premises. If asbestos is present, they must decide either to remove it or to manage it, depending on its condition, while ensuring that subsequent maintenance activities do not expose the workers to avoidable risk."
Predictably, opponents of the regulations relied on standard chrysotile (white asbestos) propaganda such as those listed below; the underlined sections are actual quotes from the debate:
During the Commons debate, pro-chrysotile arguments were soundly refuted by MPs, Michael Clapham, David Heath, Stephen Hepburn, Tony Worthington and Rob Marris, many of whom represent constituencies with high rates of asbestos-related disease.2 It is of interest to note the acknowledgment by Conservative MP John Bercow of input received from John Bridle "an experienced south Wales surveyor, qualified chemist and unpaid consultant to the Asbestos Cement Product Producers Association." As well as assisting Bercow, this "unpaid consultant" was, in 2002, a source of information for Sunday Telegraph Columnist Christopher Booker who cited Bridle as an authority on asbestos issues on more than one occasion. In his column of August 18, Booker wrote:
"In my last report on the great "asbestos scam" in May, I gave an e-mail address (firstname.lastname@example.org) where readers horrified by the sums quoted for asbestos work by HSE-licensed contractors could obtain expert advice. As a result of that article, 200 owners of homes and businesses who responded have saved a total of more than £600,000 for work which could either be carried out perfectly safely and legally for a fraction of the quoted sums, or which proved wholly unnecessary."
On September 8, he reported:
"Since January, our expert John Bridle has received more than 600 emails (on email@example.com), as a result of which readers have been saved nearly £1 million through his advice."
If these statements are accurate, between August 18 and September 8, Bridle was able to achieve £400,000 (US $650,000) of savings for 400 Sunday Telegraph readers. Looking more closely at these figures, a discrepancy is revealed. If the 200 customers in the first group were saved £600,000, this is an average saving of £3,000; members of the second group only saved £1,000 each. Perhaps the increase in customer numbers, decreased productivity; perhaps there is another explanation?
Within hours of the Commons debate, Minister Nick Brown signed Statutory Instrument No. 2675 - the CAWR 2002; the new regulations were laid in the House of Commons on October 31, 2002. In a public statement, Brown said: "Asbestos is the most serious occupational health problem, in terms of fatal disease, that the country faces and results in much human suffering and misery. These regulations will do much to prevent exposure today and prolonged illness and death in the future." Part of the regulations came into force on November 21, 2002; regulations 4 and 20 become law on May 21, 2004 and November 21, 2004 respectively. Regulation 4, the duty to manage asbestos in non-domestic premises, introduces an explicit responsibility for tasks such as locating, assessing and managing asbestos risks to a variety of dutyholders including property owners, developers, employers, managing agents, maintenance and facilities managers, local authorities, tenants and: "every person who has, by virtue of a contract or tenancy, an obligation of any extent in relation to the maintenance or repair of non-domestic premises…" The regulations were produced by the Health and Safety Executive (HSE) after four years of consultation with a range of stakeholders. Support for the new law has been expressed by the Confederation of British Industry, the British Property Federation, government departments with major property portfolios, local authorities, London boroughs, NHS trusts, charities, trade unions, retailers, banks, universities and others. Critics argue that the CAWR 2002 do not fully implement the European Union Carcinogens Directive which imposes a standard of care based on what is "technically possible." According to Occupational Hygienist Robin Howie: "there is no facility in the Carcinogens Directive to play off cost against benefit: if it can be done, it must be done." The watered down UK legislation only requires precautions which are "reasonably practicable."
Presenting the CAWR 2002 to the House of Commons was not the end of the legislative process. Under UK procedures, there is a forty day "praying period," in which objections may be lodged; a vote could be called for in the House of Lords which, if won, would annul the regulations. This happens very rarely on matters relating to health and safety but on December 5, 2002, the Earl of Onslow moved in the House of Lords "that an humble Address be presented to her Majesty praying that the regulations, laid before the House on 31st October, be annulled." At the beginning of the two hour debate, he declared "an interest. I am a name at Lloyds (of London) and have been clobbered…" During the 1990s, Lloyds came close to collapse from a tide of long-tail liabilities including asbestos and pollution claims. Equitas3 notwithstanding, some observers feel that Lloyds is still at serious risk from asbestos claims. Onslow’s speech contains:
The Eton-educated Earl, whose full name is Michael William Copplestone Dillon Onslow, readily admitted that he "studied no science even at GCSE." He contested the accusation that he cares little about human life by responding: "I would not have used the energy and undergone the boredom of trying to get my pea-sized brain around this subject," had I not cared "about (the) lives and the welfare of my fellow subjects." Lacking both scientific knowledge and interest did not prevent him from lecturing the House of Lords on these technical subjects; neither did it prevent him from criticizing work by Professor Julian Peto, an eminent epidemiologist. Replying to Onslow’s accusation that his research had been "well rubbished," Professor Peto says:
"There were 1600 mesothelioma deaths in 1999 and the number is still rising. The latest HSE estimate suggests the peak will occur earlier than we originally predicted and that the maximum will be of the order of 2000 new deaths in or around 2010.
Based on data up to 1991, we predicted a peak of about 2500 mesothelioma deaths per year around the year of 2020. The rate of increase since 1991 has flattened, presumably due to the very abrupt reduction in the use of asbestos in the late 1970s particularly in construction. Assuming at least one other asbestos-related death due to either lung cancer or asbestosis for every mesothelioma, there are thus more than 3000 deaths a year occurring now and the mortality will be at or above the current level for the next 20 years. These data and calculations are taken from an official government document. The Earl of Onslow’s belief that he is ‘reasonably well informed,’ is incorrect."
Scores of MPs outraged "that the Conservative Party should attempt to use the second chamber to annul the Control of Asbestos at Work Regulations," signed Early Day Motion 296: House of Lords and Asbestos Regulations on December 5, 2002. Fortunately, intelligent contributions from several members of the Lords won the day and the motion to annul the regulations was not pressed. By sheer fluke, within a few days of the rear-guard action failing in the House of Lords, two documents appeared which further exposed the fallacy of the pro-chrysotile arguments. According to the Health and Safety Statistics Highlights 2001/2002:
Some days later, a long-awaited EU report was published which reviewed recent scientific findings on the relative hazards of chrysotile and its substitutes: cellulose fibres, PVA fibres and p-aramid fibres. Risk to Human Health from Chrysotile Asbestos and Organic Substitutes by members of the Scientific Committee on Toxicity, Ecotoxicity and the Environment concluded that: "the evidence for harmful potential is more extensive for chrysotile than for its organic substitutes. In particular, there is sufficient evidence that all forms of asbestos, including chrysotile, are carcinogenic to humans. No evidence of fibre-caused cancer occurrence in humans is available for any of the three candidate substitutes."5
With an asbestos epidemic raging, compliance with health and safety legislation is still poor. According to a report by Zurich Risk Services (ZRS), 82% of manufacturers do not manage the asbestos in their premises and "more than 75% of small businesses have no asbestos risk management plan."6 Roger Cottell, Managing Director of ZRS, says: "These statistics are worrying because small and medium sized businesses do not seem to understand the implications of the new Control of Asbestos at Work Regulations which include a ‘duty to manage’. The new Regulations, which were recently signed in the House of Commons, mean that companies must get plans in place." With only sixteen months left until regulation 4 becomes law, time is running out. Assistance is available from both the public and private sector. The CAWR 2002 are supported by a range of publications launched by Kate Timms, the HSE’s Deputy Director General, at a London press conference on December 16, 2002: The Management of Asbestos in Non-domestic Premises, Work with Asbestos which does not Normally Require a License, Work with Asbestos Insulation, Asbestos Coating and Asbestos Insulating Board, A Short Guide to Managing Asbestos in Premises, Managing Asbestos in Premises and An Asbestos Building Poster. In addition, the HSE has produced an extremely informative multimedia package entitled: Asbestos Risk Management Workshop Material which contains literature, a video, and a CD.7 Commercial schemes on offer include an Asbestos Management Product devised by ZRS to provide customers with "a practical solution to manage this risk effectively."8 The National Asbestos Training and Accreditation Scheme (NATAS) has also launched a new product in response to the CAWR 2002: The NATAS Asbestos Survey and Risk Management Database. According to Max Lopacki, Managing Director of NATAS, the user-friendly database has been tailored to meet the new requirements and is based on years of experience. NATAS training modules on CAWR 2002 are available for surveyors and risk assessors (P402: Building Surveys and Sampling for Asbestos) and dutyholders (P405: Management of Asbestos in Buildings) at events held throughout the country.9 On March 26, 2003, The Asbestos Risk Management Conference: Defusing the Toxic Time-Bomb Affecting UK plc will be held in London. The issues to be addressed during the ten hour program are of concern to insurers, risk managers, company secretaries and executive dutyholders.10 The speakers, including insurance industry specialists in risk management and reinsurance, will make presentations on: the UK asbestos epidemic, the CAWR 2002, policy action plans, compliance strategies, legal and trade union positions, insurance implications and case studies.
As one asbestos exercise passed into law, another began. In December, 2002, the HSE issued Consultative Document 186: The Proposal to Amend the Asbestos (Prohibition) Regulations (1992) to eliminate an embarrassing discrepancy between the rules for importing and marketing asbestos-containing material. The European Commission has received complaints that the implementation of the UK’s Asbestos (Prohibition) (Amendment) Regulations 1999 contravenes the Single Market Treaty as it forbids the import of "crude, fibre, flake, powder or waste asbestos and any product containing asbestos." Exports from Scandinavia of some natural minerals for sandblasting have been turned back by customs because of trace amounts of asbestos. As the restrictions on the supply and use of asbestos products only apply to products to which asbestos has intentionally been added, the use of these minerals would be legal, as long as they did not produce airborne levels of asbestos above the maximum exposure limit. However, as the user of these imports would be unaware of the asbestos risk, he would be unlikely to monitor exposure levels. As the HSE enforces the supply and use prohibition and Customs and Excise enforces the importation prohibition, there is plenty of scope for confusion. A medium-term solution is being suggested to harmonize the rules by adopting the less stringent prohibition for both categories. Comments should be sent to the HSE by February 28, 2003.11
Scientists predict that by 2025, twenty thousand Scots will have died from asbestos-related diseases; this in a country with only 5 million people. Recent government figures show increases of 12% and 40% in mesothelioma death rates for Scottish men and women during the 1990s.12 Phyllis Craig, Senior Welfare Rights Officer at Clydeside Action on Asbestos, an asbestos charity in Glasgow, confirms this trend: "In 2001/2002, the composition of our caseload altered dramatically. Whereas, previously most of our cases were for asbestosis and pleural plaques, now mesothelioma predominates. Many people who had pleural plaques are contracting mesothelioma." A decade ago, Scots asbestos sufferers were dubbed: "Victims Twice Over"13 in a highly influential report; Author Joanne Lenaghan concluded that "the members of Clydeside Action on Asbestos (CAA)14 are not just victims of a cruel disease, but also victims of an inadequate and unjust system which fails or refuses to address their needs." She pointed out that: "The overwhelming majority of applications for Industrial Disablement Benefit (by CAA members) were rejected, despite the fact that many of our members were clearly disabled by asbestos." Ms. Lenaghan’s report could easily have been called: Victims Thrice Over, as the Scottish legal system was also heavily skewed against asbestos victims. Although one of the glaring injustices has been remedied, the survival of claims for pain and suffering and loss of expectation of life after a plaintiff’s death, many remain.
In January, 2001, a petition was submitted to the Scottish Parliament by Clydeside Action on Asbestos and Solicitor Advocate Frank Maguire entitled: Civil Justice for Asbestos Victims (PE336). It alleged that the Scottish legal system was failing to "properly identify the real issues in such cases, leading to delay and denial of adequate compensation which would otherwise enable the victim to achieve accountability for their injuries, improve their quality of life, and provide them and their family with financial security." The Scottish Parliament was urged to review procedures by which the Court of Session processes asbestos claims and to introduce new methods to identify issues, minimize delays, make interim payments and increase access to jury trials. In a thorough and detailed analysis of current procedures, the petitioners highlighted injustices currently being experienced by hundreds of asbestos claimants. Several examples of how defendants abuse the written system of civil justice are cited:
"They simply deny everything. That denial relates to everything which has been said on behalf of the pursuers… They are denying that they employed any of the said persons, they are denying that they employed the deceased despite a letter from them specifying the deceased’s employment, the capacity in which he was employed and the precise dates… They also continue to deny they had a shipyard at Clydeholm Shipyard as per said letter. They also deny that they employed piecework counters. They also deny that they operated a shipbuilding and repair yard in the Upper Clyde at any time in the period 1950 to 1960. They also deny that they worked on any of the ships there. They also deny that joiners and laggers were employed by them or outside contractors."
Delays caused by these blanket denials benefit defendants and their insurers who "retain the sums for a longer period and thereby continue to realise the dividends and profits from continued investment of those funds;" many mesothelioma claimants die never receiving judicial acknowledgement of their injury and never benefiting from compensation. The smokescreen thrown up by defendants’ behaviour bars access to a jury trial which personal injury litigants are entitled to under Scottish Law. Section 9(b) of the Court of Session Act 1988 states that "if a defender can show special cause as to why there should not be a Jury trial and instead a Hearing before a Judge alone i.e. Proof then the pursuer will be denied a right to a Jury Trial." The petition points out that in cases arising from industrial diseases, like those caused by asbestos, the grounds for "special cause" claims are many: long latency periods, large volumes of documents, highly technical matters relating to industrial hygiene and complex issues of fact and law. As "Judges’ awards are generally lower than a Jury’s and to a substantial extent," it is easy to see why defendants routinely cite "special cause."
On May 8, 2001, the Public Petitions Committee referred the petition to the Justice 2 Committee (J2C) which, over the next 18 months, considered the issues raised in the petition seven times. According to Pauline McNeill, the Convener of the J2C: "We have given the petition a high level of commitment…" At the October 25, 2002 meeting of the J2C, Convener McNeill summarized the Committee’s views as follows:
"We have agreed a timetable of the end of the year. We will focus on judicial intervention as the principle of the system. We want a system that will address asbestos victims. Des McNulty’s paper looks at the system in New South Wales, which identified urgent cases, priority cases and ordinary cases. We will appoint two advisers. Members will have some information the next time we meet. After selecting the advisers, we will use the information that we have received in evidence. We will seek to report in December, with a view to asking the Executive for the resources that we believe are needed to implement a different system, We will notify the parties - Lord Cullen, the Executive and the petitioners - accordingly."
The determination of the J2C to correct the injustice meted out to Scottish asbestos claimants, 500 of whom are currently waiting for their cases to be heard at the Court of Session in Edinburgh, was widely reported in the Scottish press in November, 2002 with headlines such as MSPs Call for Action to End Asbestos Claims Delays, MSPs to Demand Cash for Asbestos Victims, Efforts to Speed Up Asbestos Claims, More Cash Wanted for Asbestosis Sufferers and Cancer Victims’ Court Battle. A quote from an article in The Scotsman was typical:
"Radical measures to speed up the compensation claims of victims of asbestos have been called for by the Scottish Parliament. Members of the Justice 2 Committee said that the current proposals to fast-track the most serious cases were not working and demanded the Executive ensure that enough resources were in place to resolve the issue."
The same article reported comments by Frank Maguire: "The parliament is taking action to help people who are dying and we are looking forward to judicially managed procedures being introduced." Harry McClusky, Chairperson of CAA, said: "We are pleased with this positive move to help people who are terminally ill through no fault of their own. A fast-track system will allow their compensation cases to be brought before the courts speedily."
When it was published two months later, the final report of the J2C did not deliver the promised reforms; CAA was dismayed about "the exclusion of a specifically judicial managed system with the appointment of an additional judge to preside in such cases." It is clear from the Committee’s final report that input from the Lord President was pivotal in the about-turn. The Lord President told the Committee that adopting commercial court procedures, such as a computerized court diary, more frequent hearings, flexible hours and a high level of judicial intervention, to fast-track asbestos claims would be "wasteful of the scarce resources of the court." Throughout the period during which the petition was being considered, a Working Party of the Court of Session was studying other proposals to speed up the processing of personal injury cases. The recommendations made by Lord Coulsfield’s Working Party, which have been accepted and will be implemented in April, 2003, provided the J2C with a ready-made excuse for further delay: "The new provisions should certainly be given time to prove themselves before further general change is considered." Unfortunately, neither the Coulsfield proposals nor the J2C report deals with the issue of blanket denials. Neither do they address the discrepancy between the Commercial Court working throughout July, August and September and the rest of the Court of Session being on vacation throughout that period.
It would be unfair to say that the entire Parliamentary exercise has been worthless; the J2C has recommended that in mesothelioma and other terminal illness cases, the following changes should be made:
While these changes are welcome, they do not justify the vast amount of time and work invested by CAA, Frank Maguire and others who appealed to the Scottish Parliament on behalf of the country’s asbestos victims. Where a major overhaul was required, the J2C has confined itself to tinkering at the edges. Expressing the anger of the petitioners, Harry McCluskey says: "If the law can be changed with respect to firearms overnight after the unfortunate shooting of innocent bystanders in Birmingham, why can’t it be changed for asbestos sufferers who are dying through no fault of their own? After two years of discussion, we are left with a civil justice system that continues to disadvantage the injured and dying." In the three weeks since the J2C report on the Asbestos Petition was published (January 8, 2003), there has been no indication from the Lord President of the Court of Session as to whether he even agrees with the limited proposals of the Justice 2 Committee. Frank Maguire says: "We have also sought a meeting for some time with the Deputy Justice Minister, Hugh Henry, who as of today’s date (January 30, 2003) is still delaying. We have cases where dying claimants are asking us what is happening. They need to know quickly."
1 See newsletter issue 48.
Compiled by Laurie Kazan-Allen