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|ISSN 1470-8108||Issue 76||Autumn 2009|
On August 24, 1999, Deputy Prime Minister John Prescott brought the asbestos century to an end when he signed The Asbestos (Prohibitions) (Amendment) Regulations 1999.1 Although the Labour Government had indicated that it would act swiftly to implement legislation banning the use of all types of asbestos when it came to power, it took two years for it to do so. The delay had much to do with pressure from global asbestos stakeholders led by the (Canadian) Asbestos Institute and fears of becoming embroiled in the case at the World Trade Organization brought by the Canadian Government over the French asbestos ban. However, sufficient courage was found and one month after the European Union had adopted legislation banning asbestos, the UK mandated a 3-month phase-out of asbestos use.2
Unlike festivities engendered by other anniversaries, this one brought with it a larger dose of regret than celebration. Hugh Robertson of the TUC expressed it thus:
Although the ban on the import and use of asbestos was a great step forward, we must not forget that the delay in introducing a ban cost thousands of lives that might have been spared if asbestos had been outlawed when the risks were first known. Had the industry not tried to distort facts and suppress evidence, there is little doubt that action would have been taken much quicker.
On the occasion of the 10th anniversary, we must remember that the asbestos ban has not made the problem go away; we still have millions of buildings that contain this killer fibre. It is vital that workers and the public are protected from hazardous exposures and that when asbestos is removed it is done safely.3
According to the latest available figures (2006), the annual number of British deaths from the asbestos cancer mesothelioma is 2,056; this compares to 312 (1976), 706 (1986) and 1,322 in 1996. The 2006 figure represents more than a six-fold increase in fatalities in 40 years.4 The outlook remains bleak:
Mortality amongst all males is expected to keep increasing, reaching a peak at around 2,040 deaths in the year 2016, with a rapid decline following the peak year. Around 91,000 deaths are predicted to occur by 2050 with around 61,000 of these occurring from 2007 onwards.5
When mesothelioma deaths amongst women and deaths from asbestosis are added to fatalities caused by cancers of the lung, larynx, ovary and stomach,6 the huge price being paid for the country's failure to act on the asbestos danger becomes apparent. In the years since the UK banned asbestos, thousands have died. It is a cause of tremendous regret that the authorities did not heed warnings from asbestos victims, campaigners, doctors and trade unionists and take action decades earlier.
Although the national ban was indeed a life-saving achievement, much of the population remains at risk from asbestos products contained within 1.5 million public buildings and 95% of social housing. More in sadness then in celebration, Michael Clapham MP and Chair of the Parliamentary Asbestos Sub-Committee reflected:
Despite the irrefutable scientific evidence which convinced authorities in industrialized countries to ban asbestos, producers are still exporting 2 million tonnes every year to the developing world where it causes disability and death and adds to world poverty.is years since the UN, recognizing the serious health implications of asbestos use, called for restrictions on global trade.is appropriate to mark the 10th anniversary of the UK ban by reaffirming our commitment to the campaign for a worldwide ban.7
In recent months, British campaigns on asbestos issues have continued to gather momentum and support. Personal assurances given to individuals involved in the Asbestos in Schools Campaign by the Prime Minister on May 13, 2009 were regarded as confirmation that the hazard posed by asbestos in schools was now being considered at the highest levels of government. That being so, it was anticipated that subsequent discussions with ministers, politicians and civil servants would delineate ways to progress not hamper measures to safeguard the health of school users. This did not happen. The attitude and comments of officials from the Department of Education and the Health and Safety Executive (HSE) made it patently clear that government departments still did not accept that fundamental change was necessary. Reflecting on the disappointing outcome of discussions with MP Sarah McCarthy-Fry, Parliamentary Under Secretary of State for Schools and Learners, on June 3, 2009 and high level HSE personnel on September 3, 2009, one observer remarked: Either the PM did not mean what he said in May or these departments have no interest in honouring his promises. Whatever the reason for this betrayal of our children, as the Autumn 2009 term begins pupils, teachers and support staff are returning to buildings many of which are unfit for purpose.
The Asbestos in Schools Campaign has benefited from the leadership of Michael Lees, whose wife Gina died from mesothelioma in 2000. Since then, Michael has been on a quest to find an explanation for why a primary schoolteacher died from a disease formerly associated with heavy industry. Through discussions, interviews and freedom of information applications, he has amassed a wealth of information on the asbestos in schools policies and actions of successive governments; the former RAF officer and professional artist is now one of the country's leading experts on this issue. Having attended the three meetings referenced in the paragraph above, Michael has become increasingly unwilling to accept the government doublespeak and civil service intransigence he has encountered. Following the September 3rd meeting with senior HSE personnel, his frustration reached critical mass. In an open letter disseminated via the internet, he criticized the closed minds and defensive stance of the senior civil servants:
they ignore the lessons of history, deny that schools are failing to manage their asbestos, deny that staff and pupils are being exposed to cumulatively dangerous levels of asbestos, even deny that people are dying as a result and then insult those who say otherwise. HSE are not giving the government, the press or the public the true facts but are instead making statements that are at the best just spin and interpretation, at the worst they are manipulating scientific tests to achieve the results they desire, knowingly using flawed data and making statements that they know are factually wrong.my opinion what HSE have done over the years, and have failed to do, amounts to corporate manslaughter.8
It is hard to argue with the conclusion that when it comes to asbestos in British schools, the HSE has become part of the problem and not part of the solution. The HSE may well think that, as in the past, their inertia will wear down the campaigners. If so, they are underestimating the size and commitment of the opposition. A motion unanimously adopted by delegates at the annual Trades Union Congress conference in September 2009 says it all:
Congress expresses its grave and continuing concern that asbestos, the biggest and rising cause of workplace deaths, is a silent killer that remains in our schools and colleges. Because of this, children who are particularly vulnerable, as well as teachers and support staff, are being sentenced to an early death. This will continue into the indefinite future unless much tougher action is taken .
People campaigning on the issue of pleural plaques compensation are also growing increasingly frustrated with government delays. While the rights of Scottish pleural plaques sufferers were reinstated by the Holyrood Government following a disastrous House of Lords decision in 2007, Westminster has not yet acted despite assurances that it would do so:
Trade unions remain committed to the pleural plaques campaign as evinced by comments made by Alan Ritchie, the General Secretary of the construction union UCATT, when he attended a lunch on September 11, 2009 with the Prime Minister and other trade union officials at Chequers. Ritchie reiterated his union's demand for government action to force the insurance industry to pay compensation to pleural plaques sufferers.10 An online petition, sponsored by 15 trade unions, highlights the injustice faced by English and Welsh sufferers.11 It says:
Until a few years ago, sufferers of the disease were able to claim compensation.But in October 2007, the Law Lords outrageously scrapped this precedent meaning that thousands of people with Pleural Plaques would not be entitled to a single penny, whilst insurers profited to the tune of £1.4 bn.
On September 15, 2009 delegates at the Trades Union Congress conference in Liverpool passed an Emergency Motion on pleural plaques after having viewed a video clip which illustrated the devastating effects this condition can have on sufferers.12 Demonstrations and further action are being planned on the pleural plaques issue for the Autumn.
Judicial victories in difficult asbestos cases are spurring attempts by defendants to slash compensation payouts. In June 2009, it was reported that a settlement of £91,000 had been achieved for the family of a pleural plaques sufferer from Ellesmere Port who had contracted asbestos cancer. In the 1990s, the thermal insulation engineer had been diagnosed with pleural plaques; two months before he died (August 2007), he was diagnosed with asbestos-related lung cancer. The six defendants, all Liverpool-based firms which had employed the deceased, were: William Kenyon & Sons Ltd., Harland & Wolff Plc, Cammell Laird Shipbuilders Ltd., Cape Darlington Ltd., Thomas Platt & Sons (Widnes) Ltd. and Joseph Nadin Contracting Ltd.13 Although the former lagger had received hazardous occupational exposures on a daily basis, he had never been informed about the dangers of asbestos. Childhood exposure to asbestos liberated by a factory belonging to the Cape Asbestos Company resulted in a local resident developing mesothelioma in 2008. The claimant had lived less than 0.5 miles from the industrial site in Barking, East London from his birth in 1927 to 1938. As a result of extensive research into the history of the factory and interviews with former Barking residents, a ruling was obtained which upheld Cape's liability for this mesothelioma. Within weeks of this decision, a substantial settlement agreement was reached prior to the case going to trial. 14 Another case brought against a Cape subsidiary Cape Building Products Ltd. by a 67-year-old former employee resulted in a £84,000 settlement. The claimant, who had contracted lung cancer, had worked at the firm for 18 months in the 1960s; during this time, he routinely handled and opened sacks of asbestos fiber. The compensation award included a deduction of 17.5% to reflect the plaintiff's smoking history.15
Low level asbestos exposures are hotly contested by defendants who allege that they are de minimis, or, in other words, not significant enough to warrant compensation. Fortunately, Mr. Justice Nicol's judgment in the case of Dianne Willmore vs. Knowsley Metropolitan Borough Council found that the asbestos exposure the mesothelioma claimant suffered as a secondary school pupil at Page Moss Comprehensive School (later renamed Bowring Comprehensive) from 1972 to 1979, materially contributed to her risk of contracting mesothelioma. Circumstances the judge cited in the ruling handed down on July 24, 2009, were:
The defendant was found guilty of a breach of duty and the sum of £240,000 was awarded to the claimant who, in April 2009, had a life expectancy of less than 6 months. On September 22, 2009, Lord Justice Moses granted Knowsley Metropolitan Borough Council permission to appeal; an urgent hearing was ordered due to the deterioration of Mrs. Willmore's health.
Just over a year ago, the 9th edition of The Judicial Studies Board Guidelines (JSBG) for the Assessment of General Damages in Personal Injury Cases was published; changes made in the suggested levels of general damages awarded for mesothelioma have been seized upon by defendants, ever eager to capitalize on new ways to reduce asbestos liabilities. Despite setting a range for pain, suffering and loss of amenity for mesothelioma of £52,500-£81,500, a lower value of £25,000 is also indicated, for the first time, for cases of unusually short periods of pain and suffering lasting three months or so Writing about this development in the July 2009 issue of APIL PI Focus, Barrister Andrew McDonald discusses relevant decisions handed down in 2008:
It seems, says Barrister McDonald, that for now at least there is a judicial reluctance to readily value a man's life at roughly the price of a medium sized saloon car, but doubtless defendants will keep on trying to persuade to the contrary.
In a 2009 paper assessing the implications of the revisions to the JSBG, Barrister Allan Gore Q.C. concurs that it was incorrect to add the lower range to the mesothelioma guidelines: It is not supported by the Court of Appeal or by decided cases except for two, the correctness of which the author challenged as being out of step with the overwhelming majority of decided cases.16 Highlighting the need for consistent and predictable levels of damages, Gore concludes that: the new 'guidance' serves only to confuse what was clear and established, which only serves to promote litigation rather than compromise.
How a legal practitioner of any political bent or corporate persuasion could deprive a claimant of equitable compensation because he is dying too fast, reveals a total lack of morality; judicial endorsement of this injustice would bring the whole system into disrepute. The JSBG section on mesothelioma should be amended forthwith and the new sub-category deleted; until this happens, we can only hope that judges will continue to apply common sense to the asbestos tragedies which come before them.
A government rethink on compensation recoupment means that asbestos-injured claimants who receive payouts from Turner & Newall (T&N Ltd.) will no longer suffer the indignity of being trebly penalized. Under the previous regime, the tragedy of those who contracted a debilitating asbestos-related disease was compounded by a failure to receive the full compensation to which they were entitled. The legally sanctioned underpayment of claims was part and parcel of the arrangements negotiated so that T&N could, after five and a half years, finally emerge from the administration process.17 Adding insult to injury were deductions made by the government to recover lump sum state benefit payments awarded under the Pneumoconiosis etc. (Workers Compensation) Act 1979 from the reduced payouts.18 Speaking on February 13, 2009, James Purnell, Secretary of State for Work and Pensions, explained that the Government's U-turn will mean that those people receiving only a fraction of their full compensation will not be penalised further.
The promised change was implemented on July 13, 2009 by Statutory Instrument 2009 No. 1494: The Social Security (Recovery of Benefits) (Lump Sum Payments) (Amendment) Regulations 2009. 19 The new regulations, which modified section 7(1) of The Social Security (Recovery of Benefits) (Lump Sum Payments) Regulations 2008, were admirably concise, amounting to less than a page of text. The all important change was wrought by sub-paragraphs which extended the original exemptions of the 2008 Statutory Instrument to include payments made by:
(g) the UK Asbestos Trust established on 10th October 2006 for the benefit of certain persons suffering from asbestos-related diseases;
(h) the EL Scheme Trust established on 23rd November 2006 for the benefit of certain persons suffering from asbestos-related diseases.20
Fortunately, for those in the UK whose claims had been processed prior to the change, the regulations are retrospective. According to Ian McFall, Head of Asbestos Claims at the trade union law firm Thompsons Solicitors:
The Department of Work and Pensions confirmed at the end of July 2009 that Treasury approval had been given for the appropriate retrospective extra-statutory concession which will allow T&N claimants who suffered CRU (Compensation Recovery Unit) deductions from their Trust payment to receive reimbursement in full. We have already seen a number of payments reimbursed in full.21
The change in policy came about as a result of a campaign mounted by asbestos victims' groups and trade unions. Speaking about the change in government policy Derek Simpson, Joint General Secretary of Unite, said:
"The situation in which many Unite members faced clawback of already reduced compensation for injuries from exposure to T&N asbestos was unacceptable. As a matter of simple justice, the Union lobbied the government to remedy this unfairness. We are therefore, extremely delighted that the change promised in February 2009 by James Purnell was implemented by the Government in July 2009."
The UK Asbestos Trust and the EL Scheme Trust were set up by the administrators of T&N Ltd. to distribute compensation to people injured through exposures to T&N asbestos in the UK, Australia, India, Swaziland, Zimbabwe, Botswana or South Africa. Since 2006, a total of 532 claims have been paid by these trusts; 78 (15%) of admitted claims were from non-UK applicants: 2 from Australia, 1 from Swaziland and 75 from Zimbabwe.22 Total disbursements amounted to £18,457,384 (US$ 29,557,660):
One hundred and twenty-nine additional claims have had admission notices issued.
The publication of the book Killer Company James Hardie Exposed by Matt Peacock occurred as yet another scandal broke over the behavior of Australia's former asbestos giant.24 The book is full of revelations, not least of which is the fact that contaminated carpet underlay, made from hessian bags used to transport asbestos, was to be found in homes throughout the country. The text, which documents decades of deceit and double dealing by generations of corporate officers, draws on the author's painstaking tracking of this company over his 30-year journalistic career.
Mortality among British asbestos workers undergoing regular medical examinations (1971-2005) by A H Harding, A Darnton, J Wederdt and D McElvenny, confirms the association of occupational asbestos exposure with mortality from asbestosis, lung, pleural and peritoneal cancers and mesothelioma, and provides "evidence of associations between asbestos exposure and stroke and stomach cancer mortality." The researchers also found some evidence that asbestos exposure was associated with cancers of the colon and the larynx.25
Projection of mesothelioma mortality in Great Britain (Research Report 728), by E Tan and N Warren, documents an increase in mesothelioma mortality in Great Britain, with 1705 male deaths26 recorded in 2006:
Mortality amongst all males is expected to keep increasing, reaching a peak at around 2,040 deaths in the year 2016, with a rapid decline following the peak year. Around 91,000 deaths are predicted to occur by 2050 with 61,000 of these occurring from 2007 onwards.27
A Patient's Journey Mesothelioma,28 by K Sweeney, L Toy and J Cornwell, describes the healthcare experiences of a general practitioner with mesothelioma:
I am dispatched to the kingdom of the sick permanently and irretrievably. This can never be a pleasant journey but it can be made at least tolerable, dignified, even.
Dr. Sweeney asks healthcare professionals to stop asking patients to Do this for me. He comments: I'm not doing it for them, I'm doing it for me. The key point here is about locus of control. Dr. Sweeney speaks for many patients when he says:
What I have always feared in illness was anonymity, being packaged, losing control, not being able to say 'this is who I am.' In the end, one is left alone, here, in the kingdom of the sick.
Regional review: ABI tracing code, which appeared in July 2009, reviewed solicitors' experiences and pinpointed criticism of the voluntary scheme set up by the Association of British Insurers (ABI). Although the ABI tracing code promises a response within five weeks for mesothelioma enquiries, users report that the service is unreliable with initial negative responses sometimes followed up by positive ones and that deadlines are not met; delays of six months to a year have been known. Although genuine reform is needed, recent changes amount to little more than tinkering with a system that is fundamentally broken:
Insurers have little motive to voluntarily undertake complex paper trails for mesothelioma claims, especially in the present economic climate, as it makes no profit for their business. Members call for the establishment of a statutory scheme with timeframes and accountability, such as an Employers' Liability Insurance Bureau.29
The burden of cancer at work: estimation as the first step to prevention, by L Rushton, S Hutchings and T Brown, found that 4.9% of all cancer deaths in Great Britain in 2004 were due to work-related carcinogens and that half of these deaths were related to asbestos.30
General Damages for Pain and Suffering and Loss of Amenity for Malignant Asbestos Disease31 by Allan Gore Q.C. is a timely analysis of a new recommendation made in the 9th edition of The Judicial Studies Board Guidelines for the Assessment of General Damages in Personal Injury Cases, which could adversely affect the value of some mesothelioma claims.32 An appendix to Gore's paper contains hard to access data on 30+ mesothelioma cases including claimant's name, age, duration of illness, name of judge, date, amount of general damages and inflation-adjusted value of award as at March 2009. The largest amount listed £80,271.77 was awarded in 2001 to the family of a 53-year-old who had been ill for 4.5 years, while the lowest amount - £20,962.30 went to the family of a 79-year-old who had been ill for 3 months (2007). The average age of the claimants was 63 and the average value of the awards listed was £60,239.
The Industrial Injuries Advisory Council Position Paper 23: Pleural Plaques33 was published in June 2009 and recommended that the Government did not include pleural plaques among the list of prescribed diseases compensated under the IIDB Scheme:
any losses (of lung function) fall well short of the compensatable level of disability within the Industrial Injuries Scheme defined previously in relation to chronic obstructive pulmonary disease the presence of pleural plaques does not, of itself, independently affect risk levels .
Despite this recommendation, the IIAC paper pointed out that in civil proceedings different considerations may apply.
Developments in Asbestos Cancer Risk Assessment,34 by M A Silverstein, L S Welch and R Lemen, exposes the fatal problems encountered by statisticians in developing models to characterize relative cancer potencies for asbestos fiber types and sizes. Attempts by the EPA to develop measures for estimating potency factors have now been abandoned. The authors conclude that:
the most important public and environmental health priority concerning the six forms of asbestos regulated by OSHA and other asbestiform mineral fibers is to ban their production and use.
Asbestos, lung cancer and mesothelioma in the British Journal of Industrial Medicine35 by A N Taylor, which examines arguably the three most influential papers in occupational lung disease of the 20th century, concludes that:
There remains, however, the risk of exposure to unrecognised residual asbestos, which in those working in the construction industry is the primary reason for the continuing increase in the incidence of mesothelioma in the UK and across Europe. This increase is predicted to continue for another decade, 55 and 50 years after the date of publication of Wagner's and Newhouse and Thompson's papers in the British Journal of Industrial Medicine.
On October 12, 2009, a one-day conference entitled: Recent Issues in Asbestos-Related Disease Claims, organized by the Sheffield and Rotherham Asbestos Group (SARAG), will be held in Doncaster. Amongst the speakers will be Barristers Alison McCormick, Tim Smith, Alan Gore, Simone Levene and Dr. Gurnam Basran. For further information, please contact Paula Walker at SARAG: tel: 01709 360672 or email: SARAG@rainbuilding.org.uk
1 These regulations came into force on November 24, 1999, five years ahead of the European deadline. Chrysotile (white asbestos) had been the only type of asbestos permitted in the UK since amosite and crocidolite were banned in 1985. Statutory Instrument No. 2373 banned the import of crude fiber, flake, powder or waste chrysotile and the new use of asbestos cement, boards, panels, tiles and other products. Chrysotile-containing products installed prior to November 24, 1999 could remain in place until they reached the end of their service life. The sale of second-hand asbestos cement products and building materials with asbestos-containing coatings was forbidden.
3 Private communication. September 11, 2009.
4 Table MESO 01 - Death certificates mentioning mesothelioma 1968-2006.
5 Table MESO 02 - Death certificates for males mentioning mesothelioma by year of death and 5-year age group. http://www.hse.gov.uk/statistics/tables/meso02.htm
6 At an IARC meeting in March 2009, experts found sufficient evidence available to show that asbestos also causes cancer of the larynx and of the ovary. [www.thelancet.com/oncology May 2009;10]. In a recently published paper, British researchers presented evidence of an association between asbestos exposure and mortality from stomach cancer and strokes (see News Round-up).
7 Email received on September 15, 2009 from Michael Clapham MP.
10 Mathiason N. Gordon Brown forced to listen as union barons finally come in from the cold. September 12, 2009. The Guardian. http://www.guardian.co.uk/business/2009/sep/13/unions-labour-finances
13 Press Release. Settlement for asbestos lung cancer widow. June 17, 2009.
14 Press Release. Barking resident receives compensation for asbestos cancer. July 15, 2009.
15 Hazards Publications 107, 2009, page 25.
16 Gore A. General Damages for Pain and Suffering and Loss of Amenity for Malignant Asbestos Diseases. J.P.I.L. Issue 3/09.
17 Kazan-Allen L. Update on T&N Ltd. British Asbestos Newsletter, Issue 68, Autumn 2007.
18 DWP News Release. Turner and Newall Compensation Announcement. February 13, 2009.
21 Personal communication from Ian McFall to Laurie Kazan-Allen, September 8, 2009.
22 Personal communication received on September 22, 2009.
23 This information was received by email on September 16, 2009.
24 Published in 2009 by HarperCollins Publishers Australia Pty Limited ISBN 978 0 7333 2580 9 (pbk).
25 Occup. Environ. Med. 2009;66;487-495.
26 These authors cite the figure of 1705 male mesothelioma deaths in 2006; they do not include deaths in men aged 90+. It is more accurate therefore to state that the total number of all male mesothelioma deaths in 2006 is 1740, as given in mesothelioma register.
28 BMJ 2009;339:b2862doi:10.1136/bmj.b2862
29 Stringer E. Regional review: ABI tracing code. Apil PI Focus Vol 19, Issue 6 (July 2009), page 6.
30 Occup. Environ. Med. 2008;65;789-800.
31 Gore A. General Damages for Pain and Suffering and Loss of Amenity for Malignant Asbestos Diseases. J.P.I.L. Issue 3/09.
32 See article 3: Reaction and Counter-reaction to Asbestos Wins.
34 Am. J. Ind. Med. 2009.
35 Occupational and Environmental Medicine 2009;66:426-427.
Compiled by Laurie Kazan-Allen