ISSN 1470-8108 Issue 72 Autumn 2008

Contents:

1. Britain's Asbestos Panorama
2. Booker, Bridle and Bernstein
3. British Activists say “Non” to Toxic French Ship!
4. News Round-up

1. Britain's Asbestos Panorama

According to a recent publication, twice as many people die from occupational injuries as from homicide each year. Authors Drs. Steve Tombs and Dave Whyte calculate the odds of being killed by homicide and workplace injury in England and Wales as: 14 and 42 per million respectively.1 Less than 10% of major injuries reported to the Health and Safety Executive (HSE) are investigated and few employers are prosecuted by the criminal justice system. In other words, in 21st century Britain fatal occupational injuries have been decriminalized. If workplace fatalities are viewed by regulatory authorities as unfortunate consequences of British commerce, what hope is there for victims of long-tail occupational diseases, such as those caused by asbestos, to obtain justice?

At the beginning of October 2008, amosite asbestos paneling was found at the top of five of Selfridge's Oxford Street windows. Speaking on behalf of the landmark institution, Christine Watts said the windows “were sealed immediately and the HSE was informed. Everything was done according to HSE guidelines… The removal has been completed and now the next stage is obviously to rebuild the window frames. It's an old building and we always check for asbestos whenever we do a refurbishment.” The store remained open while the work was carried out. You have to wonder about the potential damage to those who might have come into contact with these highly contaminated boards over the years such as the window dressers and construction workers called to make alterations or repairs. According to HSE data published in 2008: “The annual number of mesothelioma deaths has increased from 153 in 1968 to 2056 in 2006;2 “high levels of mortality continue to be seen among occupations associated with construction work such as carpenters, joiners, plumbers and electricians.”3 These deaths are, however, just the tip of the iceberg. Occupational health expert Rory O'Neill believes that the national incidence of asbestos-related deaths is approaching 10,000 a year; a spokesperson for the construction trade union UCATT agrees that official figures woefully underestimate the fatal impact asbestos is having.4

It is certainly true that this “carcinogen shows no respect to wealth or class,” as a leader article in the October 24th edition of The Independent stated.5 Prime Ministers, Cabinet Ministers, elected representatives and members of the House of Lords are also at risk from hazardous occupational exposures. In July 2008, there was a major exposé in the Guardian newspaper about asbestos contamination at the 170 year old Palace of Westminster.6 At a meeting of the Parliamentary Asbestos Sub-Committee on October 22, 2008 Chair Jim Sheridan MP confirmed the serious nature of the problem; plans were, he said, being made to evacuate the building for a protracted period while major refurbishments, including asbestos removal, are carried out. More details about the work needed were contained in an article in The Times (Oct 16):

“More than 500 miles of water pipes, electricity and telephone cables need to be replaced for the first time since the Second World War – the last time the MPs had to relocate. There is also a potentially serious problem with asbestos, making it the most extensive refit since the mid-19th century, when Sir Charles Barry rebuilt the Palace of Westminster.7

The work is unlikely to start before 2012. It is estimated that the planned work could cost 350 million and necessitate MPs relocating to alternative premises for three years. By sheer coincidence this sum is not far different from that being spent to refurbish and decontaminate federal buildings on Parliament Hill in Ottawa which has been costed at $800 million or 396m. The Canadian renovations have been ongoing for some while and include measures for removing “hazardous asbestos insulation from the interior walls to make the building fit for human occupancy.”8

Mounting Death Toll

In the last few months, asbestos has taken the lives of thousands of British people amongst whom were saxophonist Keith Shadwick, former Ministry of Defence employee Richard George, business graduate Leigh Carlisle, pensioner Diana Innes and Scottish MP John MacDougall. Keith Shadwick was a broadcaster, a music critic and a much-loved member of the jazz community; he died from mesothelioma on July 28, 2008, age 57. Mesothelioma also caused the death of 81 year old Richard Derek George. Ron, as he was known, was working at the Donnington military storage depot in 1983 when a massive fire released asbestos fibers into the atmosphere. Ms. Carlisle, who succumbed to mesothelioma on August 27, at age 28, is believed to be the UK's youngest asbestos victim; investigations are ongoing as to the source of her exposure. Sixty years after being exposed to asbestos fibers brought home on her father's work clothes, 68 year old Dianna Innes died of mesothelioma (July 2). Coroner Grahame Short recorded a verdict of death due to industrial disease. Former boilermaker and MP John MacDougall, a personal friend of Prime Minister Gordon Brown, died on August 13 at 60 years of age, two years after having been diagnosed with mesothelioma. His death, the publicity it generated and the need for a heavily contested by-election raised the profile of mesothelioma not only in the media but also amongst colleagues in the House of Commons. Mr. MacDougall's family is pursuing a legal action against the Ministry of Defence for its negligence in allowing hazardous exposures at the Royal Naval dockyards in Rosyth in the 1960s and 1970s. While the facts relating to the cases discussed above are insufficient to draw any definitive conclusions about the country's ongoing asbestos epidemic, they do make one thing blatantly clear: whoever you are, whatever the source of your exposure, asbestos is a serious threat.

The Wider Implications of Compensation

The receipt of compensation, “something, typically money, awarded to someone in recognition of loss, suffering or injury,”9 is viewed by most of the asbestos-injured as an acknowledgement of negligence. Speaking about the settlement extracted from Cape, the owner of an asbestos factory in the part of London where George Dickerson grew up, his daughter Jane said her father, who died of mesothelioma in 2006, would have been “delighted that the firm had accepted responsibility.”10 George was, she added, angry that Cape's contamination of the neighborhood had gone unchecked for so long:

“As soon as he was diagnosed with mesothelioma, he knew it had been caused by playing with the asbestos when he was a child… He was angry about it because nothing was done to protect local residents from the asbestos. He wanted to make people aware about the factory's negligence and he wanted to the owners to take responsibility.”

Throughout his career, trade unionist Jim Crowe fought for better working conditions; he regularly questioned employers' orders regarding asbestos removal on boilers and at schools, pointing out the lack of protective equipment and preventative measures for workers. As a general foreman at the Greater London Council (1968-1971) and a clerk of works and senior clerk of works at Haringey Council (1972-1988), Jim was often exposed to asbestos liberated during work by tradesmen and insulators. After his death from mesothelioma in June 2007, the Crowe family was determined to honor his wishes and pursue a claim for compensation. His daughter Anita Crowe said “He felt it was only right that his former employers should be made to accept responsibility for his illness.” Damages of 140,000 were paid to the family by the defendants.

Other claims which have succeeded in recent months include the following:

  • A former employee of the Department for Work and Pensions at the Prestwich Unemployment Benefit Office, who retired in 2000 after 30 years, received a 170,000 payout for his asbestos-related disease; in 1984 the unnamed benefits officer obtained a letter from his department saying that asbestos had been discovered throughout his office. This letter played a crucial role in the settlement negotiations.11
  • Mesothelioma sufferer Lionel Waldridge, aged 78, was awarded 120,000 damages from EON plc for hazardous exposures he experienced as a maintenance fitter at Cliff Quay Power Station in Ipswich during the 1960s.
  • A claim brought by the surviving family of Margaret Littlemore resulted in a substantial settlement even though the negligent employer had ceased trading. Mrs. Littlemore, who died of mesothelioma less than 3 months after having been diagnosed, was exposed to asbestos as an employee at the Plessey Factory on North Hyton Road, Sunderland during the late 1960s / early 1970s. Crucial evidence was provided by former workmates about the hazardous exposures at the plant.12
  • Seventy-four year old ASLEF member Kenneth Chapman worked for the New Southern Railway, part of British Rail, as a fireman, boiler cleaner and train driver from the 1950s until retirement (1996); he has been awarded damages of 180,000 for the occupational asbestos exposure which led to him contracting mesothelioma.
  • A shipyard lagger who contracted mesothelioma from occupational asbestos exposures experienced whilst employed by Millers Insulation, Turner & Newall and Vickers Shipyard in Barrow-in-Furness was awarded 70,000 compensation. Speaking on behalf of the claimant, his daughter stressed the importance to the family of bringing the negligent employers to account. The settlement was secured within 19 weeks.13
  • In a little over 4 months, a settlement of damages was negotiated of approximately 125,000 for Mr. H, resident in Australia since 1972 but born in London. Mr. H. was diagnosed with mesothelioma at the beginning of 2008. The only occupational asbestos exposure Mr. H. recalled was a couple of months employment as a laborer at Cape Asbestos in the 1950s. Despite a lack of documentary evidence, a satisfactory outcome was achieved for the client.14
  • Another Cape employee, referred to as BW, worked as a centre lathe turner at the company's infamous Barking factory. Before various bits of machinery could be repaired, BW was required to clean off the asbestos dust. Another source of hazardous exposure was the workshop visits by fitters covered with asbestos dust. Three months after BW was diagnosed with mesothelioma (March 2008), his case was settled for 130,000.15
  • The environmental hazards of living near an asbestos polluting factory such as the one in Barking are well known. Although mesothelioma sufferer Mrs. R. was too young to recall the nature of the living conditions during her early childhood in Barking, historical documents detailing the neighborhood contamination prompted Cape to admit liability and settle the case.

Changes in Asbestos Regulatory Procedures

By a bizarre twist of fate, changes to the British regulatory regime came into effect on October 1, 2008 which affect the asbestos-injured in contrary ways. As of this date, the Employers' Liability (Compulsory Insurance) (Amendment) Regulations 2008,16 adopted on July 4, 2008, ended legal requirements to retain corporate insurance records for 40 years.17 As the long latency period of asbestos diseases means that claims can be brought decades after negligent exposures took place, any move that makes it harder to trace relevant insurance policies disadvantages victims. Government claims that this legislation reduces the administrative burden on UK plc, ring hollow with asbestos victims' representatives, one of whom spoke about the government's “utter indifference to and disregard for asbestos victims.” Plaintiffs' solicitor and Partner at Irwin Mitchell Solicitors Adrian Budgen is also concerned:

“Now that employers no longer have to keep backdated evidence of their Employers' Liability Insurance, identifying the insurer responsible for the time at which asbestos exposure occurred will become much more difficult. We will waste precious time trying to trace insurance details that could easily be stored on a central database.

Everyone in society is expected to work yet there is no statutory protection for people who discover they have been treated negligently by their employers. These regulations and the lack of any attempt to fill the gap which they leave are a clear indication of the prioritization of corporate needs over common sense and natural justice.”18

Roger Maddocks, also a solicitor at Irwin Mitchell's, submitted an e-petition to Number 10 which called on the Prime Minister to:

“abandon the Department of Business Enterprise and Regulatory Reform's proposal to remove the requirement upon employers to retain copies of Employers Liability Insurance certificates for a period of 40 years and; put in place as a matter of urgency arrangements for a compulsory national database containing current and historic details of employers insurers so as to safeguard the position of victims of mesothelioma and other occupational diseases for which there is a long period of latency before the condition develops and to enable compensation claims pursued by them to be dealt with quickly.19

By October 24, 1,208 people had signed the petition.

In an attempt at damage limitation, the Association of British Insurers (ABI) announced a new Protocol for Recording Employers Liability Policies on October 1. Developed in collaboration with other insurance industry groups, the new scheme aims “to ensure that EL policies are being kept in a format that will allow easy tracing in the future – and that claimants are easily able to search for past EL policies now.”20 Giving the ABI the benefit of the doubt, the Association of Personal Injury Lawyers points out that “It's disappointing that it (the new protocol) is not compulsory… injured people won't get the protection they need until we have a compulsory central electronic database for recording these policies.”21 Asbestos specialist Kevin Johnson from the Liverpool office of John Pickering & Partners remains underwhelmed:

“According to the most recently published ABI data (2006), an average success rate of 25% had been achieved for its tracing scheme. In other words, of the 13,648 enquiries made during the period in question, 10,236 applicants received no useful information. Judging by the success:failure ratio I've witnessed, I would say this figure (25%) could even be an overestimate. The ABI tracing scheme is under-resourced and is likely to remain so for the foreseeable future, whatever grandiose claims are being made for the new protocol. Many insurers continue to obstruct and deny claims for as long as they can as they know it is not in their financial interest to do otherwise. Until there is a compulsory system to force them to make the details of policies easily accessible and publicly registered, little will change.”22

Good News, Bad News

October 1 was the first day of operations for the 2008 Diffuse Mesothelioma Scheme. A veteran observer of the UK asbestos regulatory system speculated that the timing of this good news was intended to counterbalance the bad news represented by the reforms of the EL policy system. The purpose of the new body was to ensure that all mesothelioma sufferers receive compensation regardless of the source of their exposure.23 Categories of mesothelioma claimants who could benefit include: the self-employed, victims of take-home exposure (from asbestos on relatives' work clothes), sufferers who could not trace the source of their asbestos exposure and people who had the misfortune to live in neighborhoods contaminated by facilities processing asbestos fiber. The Department for Work and Pensions predicted that up to 600 people a year would, under the new scheme, be entitled to government payments averaging 10,000 ($15,913) in lieu of civil damages.24 Initial reactions to the “universal compensation” were positive; Joanne Carlin of the Derbyshire Asbestos Support Team said:

“It is a good thing that anyone can get a payment now. I think it is going to be mainly women who benefit – who may have inhaled fibres from their husband's or son's overalls.”25

Speaking about her husband Derek's fatal battle with mesothelioma, Angela Cox said: “If I had got the money when Derek was alive, it would have made him feel better and it would have helped me pay for things like my taxi fare to the hospital, which cost 30 a time.” Fifty-one year old mesothelioma sufferer Steve Gillingham's attempt to obtain compensation from his former employer has, till now, proved unsuccessful. Welcoming the government's new initiative he said: “This will make my life a lot easier. At the moment we have nothing in the bank, so whatever amount it might be, it will be a very nice Christmas – I cannot plan beyond that at the moment.”

But things were not quite as rosy as they had been painted. Indeed the “universal compensation” is not universal at all; former servicemen with mesothelioma, banned from suing their Ministry of Defence employer, are ineligible for compensation under this scheme. If universal compensation for diffuse mesothelioma does not cover all those affected, it is by definition not universal. As with every agreement, contract or scheme, the devil is in the detail. Some of the funding for the government's handouts is coming out of the pockets of other sufferers of asbestos-related diseases. Prior to October 1, compensation disbursed by the T&N bankruptcy scheme and other trusts was retained in full by claimants. This meant that individuals, such as T&N victims,26 who were receiving only a fraction of their full entitlement, would not be further disadvantaged. Under the system as it was operated before October 1, benefits and trust payments could be received concurrently. It was expected, therefore, that the exemption concession on benefits would be applied to lump sum payments after October 1; unfortunately this was not the case. Asbestosis claimant Alan Robinson reported:

“I stand to receive about 8,000 from a T&N Fund instead of the 50,000 I should have got. The government is going to recover 4,334 and I will be left with 3,666. Had I concluded my claim a few months ago I would have had nearly 12,000 in compensation. That's been cut by a third. I fully support a lump sum payment to all mesothelioma sufferers, that is the right thing to do. But, it is wrong to fund the new scheme by hitting asbestos victims like me.”

Other people victimized by the new rules include those whose compensation was curtailed due to the fact that some negligent employers were no longer trading. At a meeting in Parliament on October 22, Tony Whitston, Chair of the Asbestos Victims Support Groups' Forum, said that the Mesothelioma Scheme was:

“worthless to some and injurious to others… No one anticipated that the government would allow already reduced compensation to be further reduced by recovering the full amount of any lump sum payment that had been made. We were shocked and appalled to discover that some mesothelioma sufferers will lose out under the new arrangements.”

Concluding Thoughts

In the current economic climate it is all too easy for officials to use the credit crunch as an excuse for unfulfilled promises, however, further penalizing those who, through no fault of their own, have been injured by exposure to a substance as dangerous as asbestos is both unfair and immoral. Although Britain was the first country to regulate harmful workplace exposures under the Asbestos Industry Regulations 1931, the use of asbestos did not end until 1999. The government's failure to take decisive action for more than 100 years could finally come home to roost. In Japan and France, class actions against national governments have been mooted by aggrieved victims of asbestos poisoning. There is no saying whether some clever British solicitor, motivated by the continuing deprivation experienced by the country's asbestos-injured, could find a way to bring similar proceedings under national or European law. In the long-run, compassion might prove more cost-effective and politically palatable than the alternative.

2. Booker, Bridle and Bernstein

Observers of the global asbestos panorama will be familiar with the names of Christopher Booker, John Bridle and David Bernstein. Booker is the columnist who has ad nauseum downplayed the dangers of chrysotile asbestos in the pages of the Sunday Telegraph. In 2007, Booker devoted a chapter of his book Scared to Death: From BSE to Global Warming – Why Scares are Costing Us the Earth to the “Great Asbestos Scam.” In his publications, Booker has consistently cited the work of John Bridle, lauding him as “an experienced South Wales surveyor and qualified chemist” who is a “knowledgeable and brave whistleblower.” John Bridle's knowledge came from 38 years in the UK asbestos-cement industry.27 Latterly, he was the technical consultant for the Asbestos Cement Product Producers Association and the founder of Asbestos Watchdog, a body praised by Booker as “dedicated to giving honest advice to the ever-larger number of people who are victims of the (asbestos removal) racket.” Dr. David Bernstein has conducted “scientific research” paid for by asbestos stakeholders in Canada and Brazil; he has also spoken at events organized by the asbestos industry in Canada, Brazil, Indonesia and elsewhere.

These individuals, who for the sake of brevity we will collectively refer to as the “B team,” have come under increasing public scrutiny this Autumn. A book published in September 2008 entitled Don't Get Fooled Again: The Sceptic's Guide to Life discussed actions taken by Booker and Bridle in the context of the UK chrysotile offensive. Author Richard Wilson lists various effusive statements by Booker about Bridle “one of the country's leading asbestos experts” and details Booker's robust defense of the beleaguered “expert” in the face of a BBC radio program which was, so Booker said “a farrago of make-believe.” Needless to say, Wilson did not agree with this assessment and concluded that:

“Bridle's error was in overstating his case and telling a number of demonstrable lies, which made him easy to discredit, and led to his eventual prosecution under the Trades Descriptions Act in 2005.”28

The analysis of the Booker-Bridle connection continued in the September 23rd column by George Monbiot:

“Since 2002, he (Booker) has published 38 articles on this topic, and every one of them is wrong. He champions the work of John Bridle, who has described himself as 'the world's foremost authority on asbestos science'. Bridle has claimed to possess an honorary professorship from the Russian Academy of Sciences, to be a consultant to an institute at the University of Glamorgan, the chief asbestos consultant for the asbestos centre in Lisbon, and a consultant at the Vale of Glamorgan trading standards department. None of these claims is true.” 29

Kathleen Ruff, author of Exporting Harm – How Canada Markets Asbestos to the Developing World, a publication released on October 23, 2008 by a prestigious Canadian think tank, includes mention of the “B team” members in the section headed “Using Industry and Dubious 'Experts'.”30 Ruff details praise lavished on John Bridle by the Chrysotile Institute (CI) including the news contained in a CI media release about Bridle's “prestigious honorary degree in 'Asbestos Science' by the Russian Institute of Occupational Health.” The CI boasted that the “new professorship makes him the foremost authority on asbestos science in the world.” Ruff points out that this accolade “is quite surprising for someone who has never published a single scientific paper on asbestos.” In the 31-page report, Bernstein receives special attention as the “expert that the Canadian government and the Chrysotile Institute promote the most heavily.” Bernstein, Ruff says, describes himself as “an independent consultant”:

“Over the many years of service that Dr. Bernstein has rendered for the Canadian government and the Chrysotile Institute, he has been less than forthcoming in revealing who has funded his research that is so helpful to the industry, particularly in its efforts to defeat claims for damages from people harmed by chrysotile asbestos.”

In a 2007 deposition in a 2007 U.S. asbestos case, Bernstein's disinclination to answer questions on who funded his studies so exasperated Judge Knize that he intervened in the proceedings.31 Bernstein admitted that:

  • he had conducted chrysotile studies for Union Carbide, the Asbestos Institute (since renamed the Chrysotile Institute) and the Canadian Government; Bernstein did not contradict evidence from Union Carbide that they had paid him $400,623.20;
  • “not a single scientific body anywhere agreed with his views on chrysotile asbestos.”

The validity of the “scientific arguments” used to defend chrysotile by vested national interests was the subject of a recent paper by eminent French toxicologist Henri Pezerat in Preventique Securite.32 Bernstein and the theory of “biopersistence” were discussed at length with Pezerat concluding that the lack of scientific rigor with which Bernstein's experiments were carried out and their contradiction of the results of animal studies by independent scientists calls his findings into question and reveals the asbestos lobby's “new science” to be fatally flawed.

3. British Activists say “Non” to Toxic French Ship!

Just when the French Government thought it had found a solution to the proverbial thorn in its side, formerly known as the Clemenceau, up popped a small band of British campaigners.33 Objecting to the idea of their town becoming Europe's toxic toilet, the Friends of Hartlepool (FoH) mounted a judicial challenge to the UK Government's decision to allow the import of a ship containing 700+ tonnes of asbestos and 330 tonnes of polychlorinated biphenyls (PCBs). Summing up local feelings, FoH spokesperson Jean Kennedy explained:

“We feel that it is a deep injustice to force our small town – which has already disproportionately suffered the ill-effects of polluting industries and has one of the highest cancer rates in the UK – to accept France's toxic waste.”34

On June 26, 2008, the Health and Safety Executive (HSE) had granted Able UK Ltd. of Teesside an exemption to the Control of Asbestos Regulations 2006 which would allow it to import the asbestos-contaminated vessel into the UK “in order to dismantle the ship at their Teesside Environmental Reclamation and Recycling Centre in Hartlepool.”35 This exemption was granted after assurances that the “highest possible environmental standards” would be maintained had been given by Able not only to the HSE but to relevant trade unions and the Trades Union Congress.

In the aftermath of the HSE's decision, French ban asbestos campaigners communicated their concerns, claiming there were serious questions about the tender submitted by Able UK to the (French) Ministry of Defense. Able's €2 million bid for the dismantling contract significantly undercut tenders from European companies Veolia Proprete et Sitia, Galloo Recycling and Simont which were in the region of €20-30 million.36 As one veteran French campaigner asked, how could the decontamination and dismantling of a 27,000 tonne warship, which at 238 meters long is the “biggest ship recycling project so far handled by any European yard,”37 cost the same as the asbestos decontamination of a small building in France. On behalf of Ban Asbestos France, Professor Annie Thebaud-Mony stated:

“We are really concerned about what will be done by Able UK regarding Le Clemenceau. It is impossible in safe conditions to undertake the shipbreaking of the Clemenceau for €2 million except if the shipbreaking conditions common in Asian shipyards are 'imported' to Europe. We are afraid of the subcontracting which might be part of Able's plans as we have seen similar schemes operating in French shipyards which include exploiting casual workers from Eastern or Southern European countries to undertake this dangerous work.”

Ordinarily, it would take months to secure a hearing at the Royal Courts of Justice but, accepting the urgency of the situation, the High Court expedited the process and set a date of September 29, 2008 for the “urgent consideration” of the application by the FoH.38 This is a landmark case said Phil Shiner of Public Interest Lawyers:

“This legal challenge raises significant public-interest environmental issues and is a case where the HSE have clearly failed to follow their own policy on granting exemptions to Health and Safety legislation. When (as in this case), the facilities exist within France to dispose of the toxic waste aboard the Clemenceau, the HSE has a duty to consider these alternatives before allowing the ship and its carcinogenic cargo to be imported and disposed of in communities across North-East England.”

The outcome of the preliminary hearing before Senior Judge Mr. Justice Wilkie was disappointing; he refused permission for a judicial review. Campaigners took their legal challenge to the Court of Appeal, which, on October 16, 2008, reversed Wilkie's judgment and granted Jean Kennedy's application. Acknowledging the importance of the case, the Rt. Hon. Lord Justice Laws ordered a full hearing in the Court of Appeal. Commenting on the news, Appellant Kennedy said:

“We are satisfied with this result. Friends of Hartlepool have always maintained that the HSE's decision to allow the importation of the Clemenceau and its carcinogenic cargo is unlawful. By overturning the earlier High Court decision and allowing us to put these arguments in full to the Court of Appeal, this Order vindicates our approach.”39

Until the legal process has been exhausted, it is hoped that the contaminated ship will remain in French waters. FoH Solicitor Gavin Sullivan explained the measures being taken to ensure it does:

“We have asked Able UK to undertake not to take any steps to import this ship into Hartlepool until the Court has taken its decision. Obviously, should Able seek to ignore this Order and try and bring the ship from France regardless, we will consider seeking directions from the Court to prevent them from doing so.”

French groups such as Mor Glaz which represents shipworkers and ban asbestos campaigners support the British activists' demands that the French Government dispose of its own toxic ship. Shipbreaking yards in Brest, Bordeaux and Le Havre have the capacity, technology and ability to decommission vessels under the strict regulations specified by French law. In a submission to the Indian Supreme Court, Professor Thebaud-Mony wrote:

“The experience gained in France regarding removal of asbestos in buildings, thermal power plants, trains, ships and other structures containing asbestos shows that the complete removal of asbestos in the Clemenceau could have been done in France by applying the rules and knowledge acquired.

This experience combines with a tradition of naval construction and reparation which upholds to this day successful scrap yards in France, whose installations can be made available for necessary operations regarding the ship's decontamination: dry dock installations, mechanization and technical equipment; know-how accumulated over decades in maintenance operations and ship reparation, know-how acquired over the past ten years in France on asbestos removal in scrap yards. The Clemenceau has been serviced and repaired for more than 40 years in the shipyards of Brest or Toulon. It can thus without any major difficulties be decontaminated in France under the necessary conditions of security and with respect to the regulations in force.”40

4. News Round-up

Literature

On September 1, 2008, The New Statesman published the feature: Asbestos – The lies that killed. Detailing the background to the UK's worst industrial tragedy, journalist Ed Howker focuses on the consequences in Rochdale of decades of “corporate recklessness.” Having pointed the finger at company executives, medical advisers and government representatives, the cautionary tale of Rochdale MP Cyril Smith is told. In 1981, Smith wrote to local employer T&N, the UK "Asbestos Giant," and asked:

“Could you please, within the next eight weeks, let me have the speech you would like to make (were you able to!) in that debate (an upcoming parliamentary debate on EEC asbestos regulations).”

According to Hansards, the speech Smith gave was virtually identical in substance to that written by T&N. 41

The October 2008 special issue of PI Focus, the newsletter of the Association of Personal Injury Lawyers, is on the subject of occupational disease and includes the following articles on asbestos issues:

  • Nothing can come of nothing: speak again by Mark Quigley who asks whether asymptomatic/minimal asbestos induced illnesses give rise to a cause of action;
  • Reform to lost years in damages in mesothelioma claims by Neil Fisher and Kevin Johnson;
  • Historical injustice and UK government culpability for asbestos claims – time to call in the historians by Alan Care.

Australian Judgments

On May 12, 2008, the judgment of the Dust Diseases tribunal of New South Wales in the case of (re Dawson) Novek v Amaca Pty Limited [2008] issued a claimants' verdict when an award of $547,137 was made for the mesothelioma death of 65-year old Mrs. Dawson. The sum awarded reflected the financial value of the childcare provided by Mrs. Dawson for her two grandchildren.42

The September 26, 2008 decision of the Supreme Court of Western Australia in the case of Ms. Teresa Ellis43 v the State of South Australia, Amaca Pty Ltd. (Amaca, formerly James Hardie and Coy Pty Ltd.) and Millennium Inorganic Chemicals Ltd. upheld the 2006 ruling awarding compensation of $601,894 for the lung cancer death of Paul Cotton. The deceased's negligent occupational exposure to asbestos as a pipe layer and factory worker was found to be pivotal to the causation of his disease according to Justices Steytler and McLure. Mr. Cotton, who had smoked 15-20 cigarettes a day over a period of 26 years, finally gave up the habit in May 2000 when his illness was diagnosed.44 In 2006, Justice Eric Heenan set Mr. Cotton's contributory negligence at 10%; in 2008, this figure was increased to 50% by the Supreme Court which stated that:

“Mr. Cotton must have known of the risks of smoking when he took up that habit… it inevitably follows that Mr. Cotton was substantially negligent to have taken up smoking and to have continued that habit over the years.”

Global Developments

From October 27-31, 2008, the Parties to the Rotterdam Convention met in Rome. On the agenda, was the issue of whether chrysotile asbestos should be added to a list of substances (Annex III) subject to United Nations right-to-know procedures. The background to this debate and the result of the negotiations can be viewed in articles and press releases on the IBAS website: http://www.ibasecretariat.org

Future Event

A photographic exhibition which graphically illustrates the gruesome reality of the asbestos hazard as it is experienced by workers and the public in the Indian subcontinent will be held from December 1-5, 2008 at the TUC headquarters, Congress House, Great Russell Street, London WC1B 3LS. The London premier of this travelling collection complements the September 2008 publication: India's Asbestos Time Bomb.45

For more information on this event or on hiring this exhibition, please contact the organizer: Eve Barker: ebarker@nildrum.co.uk

___________

1 A crisis of enforcement: the decriminalisation of death and injury at work. Centre for Crime and Justice Studies, June 17, 2008. http://www.crimeandjustice.org.uk/pr170608.html

2 HSE. Health and safety statistics 2007/08. October 2008. See: www.hse.gov.uk/statistics

3 HSE. Mesothelioma mortality in Great Britain. Uploaded June 20, 2008.http://www.hse.gov.uk/statistics/pdf/mesojune08.pdf

4 Asbestos kills 10,000 every year says trade union. October 23, 2008.
http://www.mirror.co.uk/news/top-stories/2008/10/23/asbestos-kills-10-000-every-year-says-trade-union-115875-20830602/

5 Leader article: Exposing a hidden danger. October 24, 2008. The Independent.http://www.independent.co.uk/opinion/leading-articles/leading-article-exposing-a-hidden-danger-971401.html

6 See: Kazan-Allen L. Asbestos Issues in Westminster. Issue 71, British Asbestos Newsletter.

7 Coates S. MPs face ejection to allow repairs to crumbling Parliament. October 16, 2008.
http://www.timesonline.co.uk/tol/news/politics/article4951313.ece

8 Martin D. Asbestos is safe, says Ottawa – except in Canada. October 24, 2008.
http://www.canada.com/vancouversun/story.html?id=bafd0db7-9258-4bd2-b82b-f8f944d409a3

9 Oxford Dictionary of English.

10 Thompsons Press Release: UNISON Member, George Dickerson's Story. http://www.thompsons.law.co.uk
Childhood exposure caused fatal cancer. TUC Risks.

11 Issue 103, Hazards: p. 23, 2008.

12 Irwin Mitchell Solicitors Press Release. Husband Wins Compensation for Mesothelioma Death. October 7, 2008. http://www.irwinmitchell.com/PressOffice/PressReleases/Husband-Wins-Compensation-For-Mesothelioma-Death.htm

13 http://www.thompsons.law.co.uk/ntext/asbestos-compensation-secured-mesothelioma-victim.htm

14 Email from Daniel Easton, Leigh Day & Co., September 1, 2008.

15 Field Fisher Waterhouse. Asbestos News, p.10. Autumn 2008.
http://www.personalinjury.ffw.com/pdf/Asbestos%20News%20Summer%2008.pdf

16 http://www.opsi.gov.uk/si/si2008/uksi_20081765_en_1

17 See also: Kazan-Allen L. UK plc 1: Victims 0. British Asbestos Newsletter, Issue 71, Summer 2008.

18 Interview with Adrian Budgen. October 22, 2008.

19 http://petitions.number10.gov.uk/mesovictims/?signed=d670823.8b3c18

20 Email from Malcolm Tarling, ABI October 22, 2008.

21 ABI protocol for EL records. Apil PI Focus, Vol 18, issue 9. October 2008.

22 Telephone interview with Kevin Johnson, October 24, 2008.

23 Kazan-Allen L. Universal Mesothelioma Compensation. April 20, 2008.
http://ibasecretariat.org/lka_uni_meso_comp_uk.php

24 DWP News Release: Faster Payments for Mesothelioma Sufferers A Step Closer. October 1, 2008.

25 New rules mean payout relief for county's asbestos victims. October 2, 2008.
http://www.thisisderbyshire.co.uk/news/New-rules-mean-payout-relief-county-s-asbestos-victims/article-368692-detail/article.html

26 In most cases, T&N victims are paid only 17% of the compensation they would be awarded through the courts.

27 Records at Companies House showed that in the 1980s/1990s, Bridle held directorships in: Cembrit Building Products Ltd., BM Building Fabrication Ltd., BM Products Ltd., G.R.Speaker & Co. Ltd., BM Slate Ltd., BM Chemicals Ltd., M.R. Haulage Ltd. and Phoenix Fibrocem Limited.

28 See: Chapter 5: Fake Experts and Non-Denial Denials in Don't Get Fooled Again: The Sceptics Guide to Life by Richard Wilson, Icon books, September 2008.

29 Monbiot G. The patron saint of charlatans is again spreading dangerous misinformation. The Guardian. September 23, 2008, p. 31. http://www.guardian.co.uk/commentisfree/2008/sep/23/controversiesinscience.health

30 http://www.rideauinstitute.ca/file-library/exportingharmweb.pdf

31 The judge told Bernstein: “Listen. Can you hear me? Can you see and hear me? Read my lips. How much did Union Carbide, through their attorneys, pay you?”

32 Pezerat H. Le chrysotile, une variete d'amiante des etudes biaisees, des risques certains. Preventique Securite – No. 100- July/August 2008

33 For more than 5 years, the French Ministry of Defense has been trying to find a scrap yard willing to decommission and dismantle this iconic vessel, a former flagship of the French Navy. The quest took the Clemenceau, officially renamed Hull Q790, on a 12,000 mile journey costing 20 million during which knock-backs were received from Greek, Turkish, Bangladeshi, and Indian authorities. On May 17, 2006, the ship returned to its home port of Toulon having been recalled by the French Government after an international campaign by ban asbestos activists and environmentalists.

34 PIL launch High Court Challenge to Stop Toxic French Ship Being Brought to the UK.
http://www.publicinterestlawyers.co.uk/general/news.php?id=88

35 Press Release. HSE Grants Able UK Ltd. an Exemption to Import Asbestos.
http://www.hse.gov.uk/press/2008/gnnne24508.htm

36 L'Angleterre pour ultime voyage. (England for the last voyage). July 2, 2008. Page 6. http://www.varmatin.com

37 Able Press Release. Major Recycling Contract Proves TERRC Potential. July 1, 2008
Information received from other sources suggests that the Able bid was €4 million for 10 months work; others bids estimated that it would take 60 people 2-3 years to properly decontaminate the ship and would cost €35-50 million (28/$44m-41/$63m).

38 Cordner C. Court Bid to Sink Le Clem. September 12, 2008.
http://www.hartlepoolmail.co.uk/news/Court-bid-to-sink-Le.4464459.jp

39 Press Release Public Interest Lawyers. Court of Appeal gives green light for legal challenge against import of toxic French ship, the Clemenceau, October 20, 2008.

40 Thebaud-Mony A. The Clemenceau: asbestos could have been removed in France. Address to the Monitoring Committee of the Indian Supreme Court, New Delhi, January 20, 2006.

41 http://www.newstatesman.com/health/2008/08/asbestos-victims-company

42 http://www.austlii.edu.au/au/cases/nsw/NSWDDT/2008/12.html

43 Ms. Ellis was the executor of the estate of Paul Steven Cotton.

44 http://www.austlii.edu.au/au/cases/wa/WASCA/2008/200.html

45 This monograph can be viewed online at: http://www.ibasecretariat.org

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Compiled by Laurie Kazan-Allen
ÓJerome Consultants