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|ISSN 1470-8108||Issue 77||Winter 2009-10|
Government figures released towards the end of 2009 confirmed reports from British asbestos victim support groups of a continuing rise in the national incidence of mesothelioma. Statistics from the Health and Safety Executive (HSE) document an ongoing epidemic which in 2007 led to 2,156 deaths (1,812 male and 344 female). The most common occupations recorded on death certificates for male mesothelioma victims were: carpenters and joiners, plumbers, heating and ventilating engineers, and electricians.1 Although the HSE is predicting that the annual number of male mesothelioma fatalities will peak at 2,038 by 2016, deaths will continue for decades to come. Statisticians estimate that 91,000 men will die from mesothelioma by 2050, the majority (67%) of whom will expire after 2007.2 Amongst the dead, will be around 15,000 former carpenters.3 These predictions are no surprise when examined alongside historical mesothelioma mortality figures. Since the introduction of the mesothelioma register in Britain (1967), the annual number of mesothelioma deaths has risen fairly constantly: 153 (1968), 392 (1978), 872 (1988), 2,156 (2007); these figures constitute more than a 14-fold increase in 40 years.4
Throughout 2009, The Mirror's Killer Dust campaign continued to highlight the plight of the country's asbestos victims with the January 8, 2010 blog covering Scotland's progress on reinstating the rights of pleural plaque victims.5 Other recent media coverage included articles in The Independent.6 While a front-page article which appeared at the end of November focused on the deadly fall-out from an asbestos factory an industrial killing machine in East London, the January 10, 2010 piece highlighted the bureaucratic injustices experienced by asbestos victims whose receipt of Industrial Injuries Disablement Benefit (IIDB) proved to be a poisoned chalice. A case in point is that of asbestosis victim Tony Webster who said:
When I got the IIDB I noticed straight away that my pension credit had disappeared Then I went to the dentist and he said I now had to pay full price because I wasn't on pension credit. This was meant to help me and now I am worse off; it's ridiculous.
More Illness, More Claims
Government statistics and anecdotal evidence agree that more people are contracting asbestos-related cancer. Data collated from disablement benefit files from 1981 to 2008 show that as mesothelioma mortality has risen, so too has the number of benefit claims, albeit at a lower level.7 Even as late as the 1980s, however, many of those with asbestos-related diseases did not use the courts to pursue compensation claims. In a 1994 doctoral dissertation, Thomas Durkin identified a vast pool of uncompensated asbestos victims in the UK. Amongst the reasons he cited for the huge disparity in the number of asbestos-related civil actions in the UK and the US were: loyalty by UK workers to former employers that might be paying their pensions, a reluctance to risk paying both sides' costs if a legal case were lost, and discouragement as a result of the Department of Health and Social Security rejecting a claim for industrial benefits. By the time Durkin's dissertation was published, however, the climate had already changed. The results of an informal sampling of legal specialists undertaken in January 2010 confirm that the number of those instigating personal injury mesothelioma lawsuits has been increasing since the mid-1990s. There are, of course, exceptions. In September 2009, Sir Alastair Aird, the former Private Secretary to the Queen Mother, died of mesothelioma. Although it was reported that he had organized the removal of asbestos from Clarence House, his widow has ruled out the possibility of suing the Royal Family.8
Britain plc has explored legal, political and financial options to avoid asbestos liabilities. In October 2009, insurance broker Marsh Ltd. issued a report entitled Mesothelioma Claims which warned that:
mesothelioma claims present a real business risk to many companies first because they have still to reach a peak, and secondly because the current legislative landscape makes it easier than ever for individuals to bring legal action against companies that may have exposed them to asbestos.9
The research conducted for the Marsh paper involved an analysis of 91 mesothelioma cases which came before Senior Master Whitaker of the Queen's Bench Division of the High Court of Justice; the selected cases constituted 15% of the total number managed by Senior Master Whitaker between September 2006 and October 2007. Some of the report's findings were unsurprising:
An interesting fact thrown up by the study was that that there are almost as many claims by dependents (47%) as by principals (53%).
This document is a primer for potential defendants who have not yet come to grips with the repercussions of their own negligent practices and the unknown liabilities acquired during company mergers, purchases and takeovers: even a company with no direct link to asbestos either now or in the recent past, may still be liable. As the mesothelioma list run by Senior Master Whitaker aims to deliver judgment on live mesothelioma claims within four to six months, the receipt of a letter before action starts the clock ticking. The accelerated nature of the live claims process and the court's refusal to grant extensions can, without a doubt, compromise a defendant's case if the necessary information such as old employers' liability policies is not readily to hand. In his foreword to the Marsh Report, Senior Master Whitaker suggests that:
preparatory work to establish potential liability and preserve records can be undertaken before any claims have been received. I would urge any companies that may be exposed to asbestos-related risk to do their 'due diligence' well in advance and bear in mind that risk may result from simply having owned, or even occupied, a building containing asbestos at some point in the company's history.
Contentious Legal Issues
A review of court decisions handed down over the last few months illustrates that issues such as what constitutes de minimis exposure to asbestos and the extent of asbestos contamination in schools remain hotly contested. The October 15, 2009 death of Dianne Willmore, a 49-year-old mother of two, hours after the Appeal Court upheld a verdict awarding her £240,000 was a poignant reminder, if one were needed, of the tenuous hold many mesothelioma litigants have on life. As Ms. Willmore's Solicitor, Ruth Davies, said: But for the asbestos, she (Dianne) had been exposed to, she might have had another 40 years.11 The High Court and the Appeal Court agreed that Knowsley Metropolitan Borough Council had negligently exposed the claimant to asbestos when she was a secondary school pupil at Page Moss Comprehensive School (later renamed Bowring Comprehensive).12 The defendant's contention that the exposure which took place from 1972 to 1979 was de minimis did not find favor either with the original judge or the appeal court judges. Unfortunately for Ms. Willmore's family, Knowsley Council has approached the Supreme Court for permission to appeal.13
Paying tribute to Ms. Willmore, Michael Lees, the country's leading campaigner on asbestos contamination in schools, highlighted the importance of the case saying:
In my knowledge, this is the first time in this country that a person exposed to asbestos at school as a child has successfully fought a case through the courts and been awarded compensation from the people who negligently exposed her.14
Michael's wife Gina was a schoolteacher who died from mesothelioma having been exposed to asbestos at a number of schools. Joan Harvey, another schoolteacher, also died from mesothelioma (June 2007). The 57-year old had worked at St. Philip Howard in Poplar and Chase Cross in Romford during a teaching career of more than twenty years. Her legal advisers believed that she had been exposed to asbestos released from the schools' ceilings. Tests carried out by her former employers the London Borough of Havering and the London Pension Fund Authority (LPFA)15 proved inconclusive. An out-of-court settlement was reached days before the High Court hearing was due to begin in London; it was reported that compensation of £180,000 was paid to her family in June 2009.
According to an article in the London Evening Standard, the Henry case was the first time the LPFA, the authority responsible for former staff of the Inner London Education Authority and the Greater London Council, paid compensation to someone other than a manual laborer who had had direct exposure to asbestos. 16 Although the Standard's article asserted that the LPFA had set up an £85 million asbestos compensation fund, further enquiries revealed that this was not the case. The LPFA has, its representative said estimated that it has a total liability of £86 million stretching for the next 20-25 years. LPFA assesses liabilities that arise on an annual basis and imposes a levy on the relevant London boroughs accordingly."
As in the Willmore case, de minimis tortious exposure to asbestos was central to the defense of Greif (UK) Ltd. in a case brought against it by Karen Sienkiewicz, the daughter of deceased mesothelioma victim Enid Costello. Although Mrs. Costello was a clerical worker who had been based in one of the office blocks at Greif's Ellesmere Port premises from 1966 to 1984, her duties took her all over the factory and she spent some time in the areas which were from time to time contaminated with asbestos. 17 Having initially denied that Mrs. Costello's disease had been caused by asbestos, the defendant alleged that the minimal occupational asbestos exposure experienced had been less than the environmental exposure endemic in the area. What level of endangerment was necessary for this case to succeed was a material increase of risk sufficient or was a two-fold increase necessary?
A defendant's decision handed down by Judge Main QC in December 2008 was reversed on November 6, 2009 by the Court of Appeal (Civil Decision). Main had, the Appeal Court found, been wrong to require the two-fold increase in risk when the appropriate benchmark in a mesothelioma case should have been a material increase of risk. Expressing support for the reasoning of Lady Justice Smith, Lord Clarke said he believed this to be the first mesothelioma case in which the court has been asked to consider together the decisions in Fairchild v Glenhaven Funeral Services Ltd  and Barker v Corus UK Ltd  and the terms of section 3 of the Compensation Act 2006. The defendants have petitioned the Supreme Court for permission to appeal; a decision is expected by the end of January.
Overcoming Obstacles: Company Executives, Lost Policies
It is safe to say that in mesothelioma cases, time is not on the side of the injured. By the time the disease takes hold, negligent companies have often gone out of business and relevant insurance policies have been lost. It is heartening to report two cases where such difficulties have been overcome. Frederick Hughes, who died from mesothelioma in 2001 had worked for the engineering firm of Vernon & Roberts in the 1960s. During the dismantling and demolition of buildings and equipment, Mr. Hughes had been occupationally exposed to asbestos. Although the case was settled for £60,000 in September 2005, no compensation had been paid to the family as The Federated Insurance Company, the firm's insurers, had ceased trading. The Financial Services Compensation Scheme rejected a claim for compensation saying that the judgement debt was enforceable against Vernon & Roberts, a solvent, trading company, regardless of the status of their insurers. By this time, however, the company had ceased trading and Mrs. Hughes was left with few options. A lawsuit for corporate misfeasance against former directors was mounted. Solicitor Pauline Chandler explained:
In this case, there were assets of £250,000 when the claim was made and instead of sharing them out between themselves when the company finally folded, the directors should have paid out Mrs. Hughes compensation claims.
Seven years after her husband's death, Mrs. Hughes received the full damages due to her.18
Like Mr. Hughes, Derek Hoult died from mesothelioma in 2001. From the late 1950s to the early 1960s, he had worked for timber merchants Rudders & Payne delivering asbestos ceiling panels for use in the building industry. As the negligent company had long been closed, attempts were made to track down their insurers; three years worth of searches proved fruitless. By October 2004 it looked like the case had hit a brick wall. In 2008, Solicitor Alida Coates made a breakthrough when she happened upon documents which were part of an unrelated claim. Commenting on this discovery she said:
I just stood staring at this piece of paper and couldn't quite believe my eyes. It was a million to one chance but it provided me with a link which would ultimately lead to us identifying Zurich as the elusive insurers Frustratingly when we checked our case files, we had originally contacted Zurich but their search had come back negative. This is sadly a not uncommon occurrence. There is such a backlog of data within the insurance industry that at this time the key information had not been entered onto their computer system.19
Instead of putting their hands up, Zurich initially claimed the legal action was out of time, being brought more than three years after Mr. Hoult's death. Three weeks before the case was scheduled to begin, the insurers agreed to pay a six figure sum.
Defendant corporations would do well to study the Hughes and Hoult decisions as both have ramifications which transcend the specifics of their respective cases. The Hughes judgment puts company directors on notice that they can and will be held personally liable if their insurers go broke. This case is, said Solicitor Pauline Chandler a warning to any company which tries to dispose of assets in order to avoid payment of a judgment debt. The long-running saga which was the Hoult case underlines the ineptitude of the voluntary code for tracing insurers and provides further ammunition for those calling on the government to reinstate legal provisions which mandated that employers' liability certificates be retained for 40 years. Barring the fortunate happenstance which finally resolved Hoult, the outcome could have been very different. In such circumstances, an insurance fund of last resort such as that proposed by the Asbestos Victims Support Groups Forum UK would have provided a measure of compensation for the bereaved.
While the government in Holyrood acted swiftly to restore the rights of Scottish pleural plaques victims, an insidious paralysis in Westminster has deprived English victims of a remedy for the unjust ruling which summarily ended compensation for their condition.20 Throughout 2009, British ministers promised that action would be taken it wasn't. Adding insult to injury, on January 16, 2010 it was reported that Gordon Brown had called off a meeting to discuss pleural plaques; some weeks previously he had failed to attend another meeting on the same subject due to an apparent diary clash.21 Repeated assurances by the Prime Minister and Justice Minister Jack Straw that work was ongoing to resolve the victims' plight have been undermined by an admission made in the House of Commons that government discussions of how to overcome the pleural plaques impasse seem to have ground to a halt. On January 14, 2010, Business Minister Pat McFadden admitted that he had had no recent discussions with the Ministry of Justice on this subject An extract of that parliamentary debate (as recorded in Hansard) is informative:
Mr. David Anderson (Blaydon) (Lab): What recent discussions he has (sic) had with the Ministry of Justice on his Department's potential financial responsibilities for people with pleural plaques.
The Minister for Business, Innovation and Skills (Mr. Pat McFadden): I have had no recent discussions with the Ministry of Justice on this subject, but I understand that this is a long-running issue and that hon. Members are keen to see it brought to a conclusion.
Mr. Anderson: I thank the Minister for that response. He must also be aware of the huge support for this matter across the House, as demonstrated by the fact that a private Member's Bill on the subject was passed almost unanimously here and has gained support in the House of Lords. Also, an attempt by insurers in Scotland last week to prevent the Scottish law from being changed so that people could get compensation was decisively turned down. Surely some financial responsibility must be taken, at least for the people who worked for British Shipbuilders and other previously nationalised organisations. My right hon. Friend's Department and the MOJ also have a moral responsibility to get together and sort this out.
Mr. McFadden: As I said, I do understand that hon. Members are keen to reach a conclusion on this subject. I also understand that a meeting has been scheduled to take place shortly in which my hon. Friend and others will meet the Secretary of State for Justice and the Prime Minister. The Government are aware that we need to respond not only to this but to issues relating to other respiratory conditions.22
Enquiries have confirmed that the meeting referred to by Minister McFadden (see underlined passage), which had been timetabled for January 14, was cancelled. Despite the fact that it was rescheduled, many people are becoming increasingly frustrated by the interminable delays. Pleural plaques sufferer Ernest Mann expressed it thus: the Government is, he told a local journalist trying to avoid the issue. Mann continued:
I can't understand why it's been called off again the Government is just trying to avoid it and put it off. There is something not right going on here and among the MPs. This is something extremely important. It affects a lot of people and should be dealt with as a priority.
In contrast to the Government, the insurance industry has been both active and vocal in its action on pleural plaques. Following a ruling handed down on January 8, 2010 by the Court of Session in Edinburgh which upheld the right of Scottish sufferers to be compensated for pleural plaques, four major insurers Aviva, AXA, Royal & Sun Alliance and Zurich issued an appeal.23 Reacting to this news, an official of the Scottish TUC said: We are absolutely disgusted that the insurance industry is attempting to prolong the agony and suffering of individuals with pleural plaques. Alan Ritchie of the construction union UCATT, was also highly critical:
This is a cynical action designed to try to block compensation for asbestos victims both north and south of the border. It is not about principle it is all about money The Scottish Parliament must stand up to the bully-boy tactics of the insurers. There must be no further delay on pleural plaques victims receiving compensation in Scotland.24
It is understandable that Westminster was cautious about reinstating the rights of plaques sufferers given its own exposure to claims from former workers in nationalized heavy industries such as shipbuilding. Documentation produced by a government representative and viewed in January by UCATT suggests that the estimated annual bill of £35 million which has been the basis of calculations made by the Ministry of Justice grossly exaggerated the scale of the problem. According to the report, the Government's potential liability could be nearer to £10 million per annum.25 Whatever the final bill, if the political will had existed to resolve this matter, the pre-Rothwell status quo would, most certainly, have been restored by now. That it has not is an indication of how far Labour has strayed from its principles. In light of the upcoming general election, perhaps political gain might be the impetus which succeeds where cold logic and emotional appeals have failed. 26 As asbestos victim support worker Dave Trigg wrote in a letter to his MP, government action to restore the rights of pleural plaques victims: would confirm to the electorate that Labour is still on the side of working people.27 Are you listening, Gordon?
Throughout much of the 20th century, vast quantities of asbestos-containing waste was generated by asbestos manufacturing and processing operations; some of the contaminated debris was dumped on factory premises and some was removed to landfills. With no clear-cut legislation quantifying the permitted level of asbestos soil contamination, the degree of clean-up required before sites can be redeveloped remains a grey area which property developers are now seeking to exploit.
The latest property giving cause for concern is a Widnes site formerly occupied by Turners Asbestos Cement; asbestos manufacturing took place at this location for over eighty years. Plans drawn up by Marley Eternit Ltd. to build 123 homes, a hotel and industrial units have been approved by Halton Borough Council despite protests from people concerned about the hazardous impact of disturbing asbestos-contaminated soil.28 Local people complain that they have been kept in the dark about the three planning applications related to these proposals; requests by the public for information have gone unanswered, no formal community consultation has taken place and no environmental impact assessment has been carried out.29 Concern about the proposals has been exacerbated by eye witness accounts detailing the disposal of asbestos waste on the Derby Road site. Historical company records confirm that the dumping took place. Some years ago, the Council paid £1.2 million to carry about an asbestos clean-up on a small part of this site; the decontaminated land was later sold to retail developers for £143,000.
On January 11, 2009, the planning applications were approved by the Council. Jason Addy, a researcher at Manchester Metropolitan University School of Law, who was at the meeting reported that while just five minutes were allowed for objections to be raised, a local councillor, who supported the development, had been given unlimited time to address the planning committee. Commenting on the latest turn of events, Mr. Addy expressed his disquiet over a number of issues including the speed and manner in which the planning applications were processed, the lack of an Environmental Impact Assessment and the failure to respond in a timely fashion to a request made under the Environmental Information Regulations. Despite this setback, campaigners pledge to explore their options; this is, they said not the end of the matter.30
Are Current or Future Mesothelioma Epidemics in Hong Kong the Tragic Legacy of Uncontrolled Use of Asbestos in the Past31 was published by Environmental Health Perspectives on October 22, 2009. Having documented the historical usage of asbestos in Hong Kong from 1960 to 2006 and the incidence of mesothelioma since the 1980s, the seven co-authors concluded that:
Hong Kong experienced an epidemic of mesothelioma during 2000-2006 that corresponded well with the peak of local asbestos consumption in the early 1960s assuming an average latency of 42 years.
A monograph documenting Asia's fight-back against asbestos pollution was published in November 2009.32 The IBAS Report on the Asian Asbestos Conference 2009 confirms that while ban asbestos activism has led to increasing restrictions and awareness of the asbestos hazard in Japan and Korea, elsewhere, the situation in Asia remains bleak. As a result of widespread government neglect, millions of people receive hazardous exposures on a daily basis. Fortunately, some Asian communities are not only waking up to the risks posed by the continuing use of asbestos but also taking positive action.
National Use of Asbestos In Relation to Economic Development33 appeared in the January 2010 issue of Environmental Health Perspectives. The multiple authors of this paper detail the historical pattern of global asbestos use and highlight the interconnection between rising per capita gross domestic product and the cessation of asbestos consumption. Developing countries which have yet to reach the economic level which usually corresponds with banning asbestos are urged to choose an earlier reduction and elimination in use and thus a reduction in future diseases burden.
The 6th annual conference of the Asbestos Diseases Awareness Organization, with the theme Science and Technology Proves Asbestos is a Carcinogen, will take place in Chicago, Illinois on April 9-11, 2010.34 The conference, which will be held at the Marriott Renaissance, will feature expert speakers on asbestos-related medical, environmental and occupational issues.
Action Mesothelioma Day (AMD), which has traditionally been observed in the UK on February 27, has now been moved to a warmer time of year to facilitate participation by those suffering the health effects of asbestos exposure. Events in 2010 will take place around the country on Friday, July 2; in the future AMD will be on the first Friday in July.35
4 HSE. Death certificates mentioning mesothelioma 1986-2007.
5 Sommerlad N. Pleural plaque compensation given green light in Scotland. January 8, 2010.http://blogs.mirror.co.uk/asbestos-campaign/2010/01/pleural-plaque-compensation-gi.html
6 Duggan E. Asbestos: A shameful legacy. The Independent. November 22, 2009.
7 HSE. Mesothelioma Overall scale of disease including trends.http://www.hse.gov.uk/statistics/causdis/mesothelioma/scale.htm
8 Parr A, Johnson A. Was the Queen Mother's Private Secretary killed by asbestos from Clarence House? October 10, 2009. Mail Online.http://www.dailymail.co.uk/news/article-1219504/Was-Queen-Mothers-Private-Secretary-killed-asbestos-Clarence-House.html
9 Mesothelioma claims. Marsh Ltd. 2009.
10 These sums excluded costs and related solely to the personal injury element of the claim.
11 Kazan-Allen L. In Remembrance of Dianne Willmore. October 15, 2009. http://ibasecretariat.org/lka_remembr_dianne_willmore.php
12 Dianne Willmore v. Knowsley Metropolitan Borough Council.
13 Turner B. Fresh court threat to Knowsley cancer victim's asbestos payout. Liverpool Daily Post. December 22, 2009. http://www.liverpooldailypost.co.uk/education/education-news/2009/12/22/fresh-court-threat-to-knowsley-cancer-victim-s-asbestos-payout-92534-25445091/
15 In a statement received on January 15, 2009, a London Pension Fund Authority (LPFA) official explained that the LPFA inherited residual liabilities flowing from the contract of employment from the Greater London Council and also from ILEA (Inner London Education Authority) when they were abolished in 1986 and 1990 respectively. See also: http://www.lpfa.org.uk/about/history.aspx
16 Millard N. £85m fund set up for soaring asbestos claims. London Evening Standard. October 27, 2009. http://www.thisislondon.co.uk/standard/article-23761094-pound-85m-fund-set-up-for-soaring-asbestos-claims.do
18 Directors told to pay up. Issue 108, Hazards. October-December 2009. http://www.hazards.org/greenjobs/greenwash.htm
19 Press Release. Million to one discovery provides justice for Birmingham family after worker's asbestos death. January 11, 2010. http://www.irwinmitchell.com/news/Pages/Million-To-One-Discovery-Provides-Justice-For-Birmingham-Family-After-Workers-Asbestos-Death.aspx
20 Compensation for pleural plaques was shut down by the House of Lords decision in the case of Rothwell v Chemical & Insulating Co. Ltd. (2007).
21 Anger as PM again cancels victim meeting. The Chronicle. January 16, 2010.
22 Hansard. 14 Jan 2010 : Column 825.
23 ABI Press Release. Insurers lodge appeal against Scottish judgement on pleural plaques. January 14, 2010.
24 McGuffin P. Insurers challenge asbestos ruling. January 15, 2010.
26 EDM 242: Rights of those with Pleural Plaques. November 25, 2009.
27 Letter by Dave Trigg to MP Bob Laxton. January 14, 2010.
28 Plans approved for asbestos site. BBC News. January 12, 2009
29 Press Release. Please no more deaths from land of killer dust. January 5, 2010.
30 Email from Jason Addy, January 15, 2010.
Compiled by Laurie Kazan-Allen