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|ISSN 1470-8108||Issue 81||Winter 2010-11|
The title of this article is taken from a slogan used on December 9, 2010 during a day of asbestos action in London; although asbestos is banned in the UK, consumption is still widespread in Asia, Eastern Europe and Latin America. The timing of the events in Trafalgar Square, Pall Mall and Downing Street was deliberate December 9 was the day that members of the Asian Solidarity Delegation to Quebec took part in a National Assembly press conference, the purpose of which was to acquaint the population of Quebec the heartland of Canada's asbestos industry with the tragic consequences of asbestos use in their countries.1 The focus of the Quebec press conference was a proposal under consideration by the provincial government to provide a multimillion dollar loan guarantee to ensure the completion of a new asbestos mine. If the Jeffrey Mine project gets the green light, 5 million tonnes of chrysotile asbestos will be exported to Asia over the next 25 years.2 At the beginning of February 2011, a trade delegation from Quebec visited Mumbai, Delhi and Bangalore to explore options for selling the output of the new mine to India. The asbestos lobby hopes to up Indian purchases of Quebec chrysotile by ten-fold; in the last decade, India imported almost 700,000 tonnes of Quebec chrysotile.3
There is a clear link between this controversial mine and the asbestos epidemic in the UK: the majority of Britons now dying from asbestos-related disease could have been exposed to Canadian asbestos. Due to the long latency period of these diseases, the causative exposures could have occurred as long as 40 years ago. UK import data unearthed by the British Asbestos Newsletter show that at that time, Canada accounted for more than 60% of UK asbestos imports.4 The presentation of this information at the November 10, 2010 meeting of the Parliamentary Asbestos Sub-Group combined with news of the Quebec proposal to expand asbestos production led to calls by MPs for action to be taken. On November 17, 2010 questions were posed in Parliament by MP Jim Sheridan, the Chair of the Parliamentary Asbestos Sub-Group, to the Minister of State, Department for International Development, about the implications of Quebec plans to develop the new mine. Sheridan informed the House that financial support by the Quebec Government could result in "millions of tonnes of asbestos being dumped on unsuspecting populations in the years to come."5 The Minister agreed to raise this issue with the Foreign Office and the Department for Business, Innovation and Skills. Plans for the new Quebec mine have also been the subject of questions asked by Members of the European Parliament.6 The European Commission was asked if it was aware that most if not all of the asbestos produced will be exported to developing world nations? The response given by Mr. De Gucht, European Commissioner for Trade, side-stepped this thorny subject:
Whereas the EU has banned all production, Canadian production and export of asbestos is not prohibited and together with Russia, Canada is the world's leading exporter of asbestos. When it became evident that asbestos may also present serious health risks, the Federal Government issued several policies restricting the use of asbestos and now encourages the Provinces, who have jurisdiction in this matter, to adopt stricter rules when it comes to asbestos exposure.
UK civil society, outraged by the possibility of yet more asbestos deaths, mobilized to bring this situation to wider attention. In collaboration with the international ban asbestos movement, it was decided to hold a day of action in London on December 9. Demonstrations also took place in Mumbai, Manila, Paris, Hong Kong, Tokyo, and Seoul on December 7-10, 2010. Having experienced serious press disinterest on the occasion of previous UK asbestos protests, it was decided to redouble efforts to raise the profile of the day's activities. The undoubted success of December 9 highlighted in no less a journal than The Lancet was due to the consultation, preparation and work undertaken by groups and individuals acquainted with the consequences of asbestos exposures in the UK. The Lancet reported:
Protests are taking place this week in London, Quebec, and Asian cities led by groups that have long campaigned for a global ban on all asbestos. On Dec 9, a coalition of UK anti-asbestos groups will protest against the reopening of the Jeffrey Mine outside Canada House, London, UK. They will also hand a petition to the UK Government.7
December 9, 2010 UK Day of Action on Asbestos
Pulling together the resources needed, obtaining police permits for the demonstrations and marches, writing press statements,8 developing dramatic means to represent the global asbestos tragedy suitable for performance on the streets of London, commissioning special Christmas carols and reaching out to media outlets in the UK and abroad was a logistical challenge. The demonstration in front of Canada House, a venue familiar to ban asbestos campaigners, began at 11 a.m. The activities were noisy, colorful and dynamic, attracting a group of Japanese tourists who busily filmed the sight of whistle-blowing citizens in Christmas hats, haz-mat suits and death-head masks engaged in full protest mode. Like all the best theatrical events, it began with a prologue during which organizers and participants set the issue into context. The main themes they touched on were reinforced by the slogans on placards and banners which surrounded them: Canada Aren't our Dead Enough?; Asbestos Deaths Canada's Xmas Gift to the World; No Quebec $ for New Asbestos Mine; Canada Exports Cancer; Canadian Asbestos Safe? My Arse!!9
Highlighting the consequences of importing Canadian asbestos to the UK, protestors held a vigil as victims and family members spoke eloquently about the loss of loved ones to asbestos disease. Their testimonies were followed by a die-in: white-suited figures wearing skeleton masks spread across the pavement in front of Canada House surrounded by red sacks marked Asbestos to represent the thousands of people dying from asbestos disease every year.
As the prime focus of the day was the proposal to expand Quebec asbestos production, calls were made during this segment of the program for the Quebec Government to reverse its pro-asbestos policy and boycott the new mine. To symbolize the culpability of Quebec politicans in the global asbestos scandal, a representation of Quebec Premier Jean Charest, played to great effect by Mick Holder wearing a Charest mask, was indicted for his crimes against humanity by an asbestos widow. Charest (Holder) was then handcuffed and, with head hung low, carted away accompanied by the boos of the crowd to face justice.
Traditionally, the final act of a play is the time for resolution or redemption. As the outcome of the asbestos loan remained unknown (and still does), this requirement remained unfulfilled. Instead, we offered up a seasonal and rather radical take on the issue by singing three specially adapted carols written by the ever-inventive Rory O'Neill: Cancer Cause is Coming to Town (to the tune of Santa Claus is Coming to Town), Jingle Tills (Jingle Bells) and Canada the Bare-Faced Liar (Rudolph the Red Nosed Reindeer). While the lyrics for the carols can be found online,10 a few words from Cancer Cause is Coming to Town will provide a taster of the ingenious words crafted for this occasion:
You better watch out You better beware Canada kills and it doesn't care Asbestos exports Coming to town.
Chrysotile kills By any name Tumours abound White fibres to blame Cancer killer Coming to town.
You tell us to work safely You say you give advice But when it reaches Asia The.. out.. come's.. not.. so.. nice.
As the singing improved with each attempt, multiple stabs were taken at getting the carols right. It is interesting to note that unlike the previous demonstration in July 2010, there were no police in attendance and the Canadian security staff that stood blocking the entrance to the building kept a low profile.
During the Canada House activities, one of the organizers Tony Whitston, Chair of the Asbestos Victims Support Groups' Forum, gave a telephone interview to the Canadian Broadcasting Corporation.11 Expressing the demonstrators' support for the mission of the Asian Solidarity Delegation to Quebec, Whitston described the scene in Trafalgar Square, highlighting the presence of those who had lost loved ones to asbestos-related diseases and voicing their concern at plans to build the new mine, a mine which would produce millions of tonnes of deadly asbestos. Responding to a question about the possibility of using asbestos safely in India, he said that the experience in the UK and Canada proved this goal was unachievable. Whitston urged the authorities in Quebec to spend the $58 million on revitalizing the mining region and providing safe, green jobs for local people.
At noon, the protestors paraded down Pall Mall to the office of the Quebec Government. On a narrow piece of pavement outside 59 Pall Mall amidst the lunch-time rush of hungry office workers, banners, placards and photographs of loved ones dead from asbestos disease were held aloft as successive speakers condemned as immoral the plans to develop new asbestos resources in Quebec. Sacks of asbestos (full of paper and not the real stuff as asbestos is banned in the UK), were left on the doorstep of number 59. A female representative of the Quebec Government agreed to come out outside to accept a letter handed in by Tony Whitston and several asbestos widows for delivery to Pierre Boulanger, Quebec's Agent-General in London. Thanking her for the civility of her reception, Whitston expressed the hope that the same courtesy which had been extended that day to the protesters in London by the Canadian and Quebec authorities was also being offered to members of the Asian Solidarity Delegation to Quebec during their ongoing mission to Canada.
The final item on the day's agenda was the delivery of a letter about the new Quebec mine to Number 10 Downing Street. The letter, which was addressed to Prime Minister David Cameron, had been written by asbestos widows Vera Rigby and Ann Oldham; they called on Mr. Cameron to:
make immediate and strenuous diplomatic efforts to persuade Canada to stop exporting (asbestos) death. We ask you to take urgent action, in concert with other concerned governments, to persuade Canada to abandon its destructive policy.
We ask this in the name of all those innocent people who have needlessly lost their lives to asbestos diseases in this country. The very least we can do in their memory is to stifle the re-birth of Canada's dying asbestos industry; for Canada's sake and that of thousands of people around the world.12
As the Downing Street Christmas tree twinkled in the background the blue fairy lights decorating the tree were deemed tasteful but a bit boring by one participant the delegation of family members, organizers and MPs knocked on the iconic door and handed in the letter. As we retreated up Whitehall, we were met by streams of student protesters heading the other way. As our day of action had ended, theirs was only just beginning.
It may appear curious that months after the events which are described above took place, it has been adjudged necessary to put on record what transpired on December 9. The activities in London marked a coming together of so many individuals and groups who, with no other agenda than saving lives, turned out on a bitter winter's day under threatening conditions the police had predicted civil unrest due to the students' looming protest to raise awareness of the diabolical developments in Canada. Victims, family members, campaigners, local activists, trade unionists, academics, politicans and lawyers made their stand in central London. When seen in the context of the global manifestations undertaken that week in support of the mission of the Asian Solidarity Delegation to Quebec, it was evident that the world was and still is watching developments in Quebec. Whatever is decided regarding the investment of public money in this discredited project, there can be no doubt that civil society in the UK stood side by side with international colleagues we stood up and were counted. The answer to the question posed at the beginning of this article Aren't our Dead Enough should be an emphatic YES! Enough is enough asbestos should be universally banned.
by Tony Whitston13
The poorest in society are required to bear their share, arguably a disproportionate share, of the burden of reducing the financial deficit through cuts to welfare benefits. Asbestos victims, who are so often reliant on welfare benefits, will not only see their benefits cut, they will also see their compensation cut.
Benefits Cuts Overview
Disabled people are disproportionately reliant on welfare benefits, asbestos victims especially so as they are usually older and may suffer several disabling conditions, including asbestos related diseases. Some of the cuts and proposed cuts are detailed below. Currently the level of benefits awarded under the Disability Living Allowance (DLA) is based on the Retail Price Index (RPI). A proposal to replace the RPI as the reference point with the lower Consumer Price Index (CPI) will reduce the DLA higher rate care component automatically paid to people with terminal illnesses. Demos has calculated that this change could cost recipients of the DLA higher rate care component £6.72/ week.14
DLA claimants will be further affected by plans to reduce the overall cost of DLA by 20%, and it appears that this will be achieved by abolishing the lower rate of DLA:
It is likely that some disabled people with lesser barriers to leading independent lives will receive reduced support, but this has been justified by the policy aim to focus on those with the greatest need."15
Asbestosis sufferers who lose their means-tested benefits if they are awarded Industrial Injuries Disablement Benefit rely on DLA which is a protected payment: it doesn't adversely affect any other benefits. The loss of DLA would, therefore, result in a double blow for many asbestos victims: the loss of DLA and means-tested benefits. Also, DLA care payments can "passport" people onto other benefits, so the loss of DLA could seriously affect other income.
Another proposal is that people in care homes should lose the mobility component of DLA. Results of reported surveys clearly show that there can be no justification for this change except, that is, to save money:
"A survey of 22 care home providers found half received no contribution from councils towards the costs of transport, while those that did were funded only for travel costs deemed necessary to meet residents assessed care needs. None was funded to provide personal transport for residents, for which the DLA mobility component is used. A separate survey of 100 care home residents found that all used their mobility component to pay for transport and petrol or mobility aids to visit friends or go to college and for leisure activities.16
From October 2010, terminally ill mesothelioma sufferers, along with others, have seen a cut in the rate of mortgage interest support reduced from 6.08% to the bank of England average, currently 3.67%; this could mean they lose their homes. Local housing allowance is to be reduced in April 2011 leaving many people with less housing benefit. Contribution-based Employment Support Allowance is to be time-limited to one year, exacerbating the effect of IIDB on means tested benefits.
Compensation Cuts Overview
The financial crisis has also been used to justify proposals to abandon planned improvements to compensation and proposals to cut compensation. The Civil Law Reform Bill17 contained several proposals to improve bereavement damages and bring England and Wales more in line with Scottish provisions. The law currently only provides for an award to the husband, wife or civil partner of the deceased, or if the deceased was a minor, to the parents. The new bill was intended to correct this. It extended the categories of people entitled to claim bereavement damages so that partners of the deceased who had lived with them for 2 years before death as husband/wife would qualify, as would children who were under 18 at the time of the death. The bill proposed that each child under 18 (no matter how many there were) would each be entitled to a payment of £5900 (half of the widow/ers payment). The current law is that they would not receive any Bereavement damages at all. On the 10th January the government announced:
The Government has decided not to proceed with the proposed Civil Law Reform Bill, which was published for pre-legislative scrutiny and public consultation in December 2009. The Government is grateful to the Justice Committee for its scrutiny of the draft Bill and to everyone who replied to the consultation for their comments, but in the present financial situation we need to focus our resources on delivering our key priorities.18
A consultation on reforming civil litigation costs in England and Wales in line with Sir Rupert Jackson's recommendations closed on the 14th February 2011.19 The main proposals were to make the claimant responsible for the success fee and after the event insurance under conditional fee agreements (CFAs). Currently, a claimant receives the whole of any damages awarded in personal injury cases, and is not responsible for any legal costs. The consultation paper said:
The Government accepts Sir Rupert's assessment that the current arrangements, particularly those under CFAs, impact disproportionately on defendants.
In the foreword to the consultation paper, Kenneth Clarke, Lord Chancellor and Secretary of State for Justice, and Justice Minister Jonathan Djanogly, wrote:
Implementing Sir Rupert's proposals will also deliver significant costs savings for government. With the current financial position, we are committed to achieving savings wherever possible.
So, a reduced financial burden on defendants and on Government, paid for by those whose health has been lost and by many who have been diagnosed with a terminal illness.
If all this wasn't enough, the Government is consulting on proposals to reform legal aid.20 On welfare benefits, it is proposed to withdraw legal aid funding for legal advice about benefits such as Disability Living Allowance, Attendance Allowance and Housing Benefit. To include disabled people in the collective punishment for the financial catastrophe wrought by the avarice of financial institutions is reprehensible. To punish terminally ill people is unspeakable.
by Kevin Johnson21
In August 2010 the Ministry of Justice (MoJ) introduced the Pleural Plaques Former Claimants Payment Scheme; eligibility of the scheme is set out in greater detail on the MoJ website.22 The MoJ website explains how to apply and what documentation is required. It is intended that the scheme is a no fault system with no costs or disbursements being awarded to legal representatives. However, the information on the MoJ website is somewhat scant and practitioners in this area may have received many calls from former clients seeking advice about their eligibility. It was as a result of such enquiries that I sought clarification from the MoJ about a number of issues. Their response to my correspondence can be found on our website.23
Unfortunately, it would seem the MoJ's response raises as many questions as it probably answers and former clients and practitioners in this area will still be uncertain about potential eligibility. In brief, the MoJ's response states:
None of this is set out on the MoJ's website and, unfortunately, the detail that they provide about the scheme on their site is woefully inadequate. It is likely that many potential claimants (especially in category 4) will assume they are not eligible and will not apply. The MoJ clearly needs to do much more to highlight the situation, particularly as there is a deadline for submitting applications of 1st August 2011.
The position in relation to claimants in category 4 will probably come as something of a surprise to many practitioners. Indeed, a former client of mine whom I acted for in a pleural thickening claim and who received a six figure award, has recently received £5,000 under the MoJ scheme. It seems that clients who had successful claims for diffuse pleural thickening and asbestosis may be eligible (as well as surviving claimants with asbestos related malignancies presumably). It also seems that claimants who made successful pleural plaques claims and settled cases on a provisional damages basis receiving less than £5,000 might also be eligible, but this has not been clarified by the MoJ. The scheme raises many unanswered questions and uncertainties persist. The message for potential claimants must be that if they are in any doubt they should apply. Regrettably, the MoJ has done little to publicise the scheme or highlight what types of former claimants could be eligible.
Health and Safety Executive (HSE) Asbestos Campaign: Dead or Virtually Alive?
On November 16, 2010, Chris Grayling, Minister of State at the Department for Work and Pensions, reported to Parliament feedback from recent initiatives by the HSE to raise awareness of the asbestos hazard amongst at-risk trades. The 2009 Hidden Killer campaign showed an overall awareness post campaign of 85% by trades people, rising to 90% amongst electricians. In addition, 76% of the audience said they had taken, or planned to take more safety precautions when working with asbestos.24
The new year brought less favorable news. On January 31, 2011, the construction union UCATT reported that the award-winning HSE campaign had been cancelled as a result of the Government's cuts. This news also appeared in The Mirror, Construction News and Safety and Health Practitioner.25 Responding to the Union's criticism, an HSE spokesperson told Construction News:
HSE's Asbestos: the Hidden Killer campaign has not been cancelled as it has been claimed. It is usual for us to take stock at the end of each phase of our campaigns to see how successful they have been. Hidden Killer is currently in one of those periods. All the Hidden Killer information is freely available online and we continue to publicize every asbestos prosecution we take to raise awareness of the issue and the threat posed to high risk groups such as tradesmen.
We continue to actively work with a range of stakeholders to further increase awareness of the risks of asbestos and the action tradesmen should take to protect themselves, reinforcing the messages of Hidden Killer. HSE will continue to make tackling asbestos a priority, both in terms of our communications activity and our enforcement work.
Asbestos in Schools: Nice words, shame about the reality!
Asbestos which is in good condition and unlikely to be disturbed or damaged is better left in place and managed until the end of the life of the building Asbestos in the majority of local authority schools is being satisfactorily managed 26 was a statement made in a Parliamentary written answer on February 8, 2011 by Schools Minister Nick Gibb. Anecdotal evidence as well as reports produced by technical experts about the hazards posed by the presence of deteriorating asbestos-containing products in schools has shown that the reality is far from satisfactory. According to Asbestos in Schools campaigner Michael Lees: Instead of addressing the problem, government denials are being used to camouflage funding cut-backs which will exacerbate the already deadly situation.
An informative booklet was published in January 2011 by the British Thoracic Society, in collaboration with the Department of Health, entitled Pleural Plaques Information for Health Care Professionals.27 Subjects covered include: pathology, causation, association with other asbestos-related diseases, referral criteria, legal aspects and compensation. Also discussed are the possible psychological effects of a diagnosis of pleural plaques which "may increase anxiety about the risk of other asbestos-related diseases. Patients may also misunderstand the term pleural plaques and may assume they have asbestosis."
On-line Archive Depositions by UK Expert Witness
An online archive administered by Dr. David Egilman contains a treasure trove of documents on U.S. asbestos knowledge featuring well-known asbestos defendants including Kaiser Gypsum, Ford, Chrysler, GM, Dow and experts who testify in asbestos cases such as Drs. Denis Paustenbach, Ted Marmor, John Craighead and Allen Robert Gibbs.28 Gibbs will be familiar to UK legal practitioners involved in asbestos cases; he is a pathologist from Llandough Hospital who has a long-standing interest in the research and diagnosis of occupational lung pathology. The 20+ U.S. depositions of Gibbs which are available on this site were taken between 1992 and 2010. There is much of interest in these documents including information about the fee structure and income Gibbs received for U.S. expert work.
In Re: All Madison County Asbestos Litigation vs. Union Carbide Corporation et al., February 18, 2008:
In Donald A. Young and wife, Wanda Young vs. Lorillard Tobacco Co., et al. September 8, 2008:
1 For more information on the delegation's activities in Quebec, Montreal and Ottawa, see the special Asian Solidarity Delegation archive: http://www.ibasecretariat.org/quebec_mission_2010_arch_list.php
2 Asian Solidarity Delegation to Quebec, Canada. Briefing. 2010.
3 Brunet C. The Quebec government could supervise inspection of factories in India. February 2, 2011.
4 Kazan-Allen L. Outrage over Canadian Duplicity. British Asbestos Newsletter 2010. issue 79, page 1.
8 Asbestos Victims Support Groups' Forum. Press Release: Blood in the Canadian Snow. December 6, 2010. http://www.asbestosforum.org.uk/CanadaBloodinthesnow.pdf
9 Some of the photos taken on the day can be seen at:
12 Letter to David Cameron. December 9, 2010.
13 Tony Whitston is the Support Worker for the Greater Manchester Asbestos Victims Support Group and Chair of the Asbestos Victims Support Groups' Forum. He can be emailed at: email@example.com
14 Claudia Wood & Eugene Grant, Destination Unknown, Demos, 2010.
15Department for Work and Pensions, Disability Living Allowance Reform, Cm 7984, page 28.
17 Ministry of Justice, Civil Law Reform Bill Response to Consultation, CP( R)P53/09.
18 E-mail from Ministry of Justice 10th January 2011.
19 Ministry of Justice, Proposals for Reform of Civil Litigation Funding and Costs in England and Wales: Implementation of Lord Justice Jackson's Recommendations CP 13/10 November 2010.
20 Ministry of Justice, Proposals for the Reform of Legal Aid in England and Wales, CP 12/10.
Compiled by Laurie Kazan-Allen