ISSN 1470-8108 Issue 82 Spring 2011

Contents:

1.Two Families Caught up in Supreme Court Litigation
2. Pleural Plaques: Extra-statutory Scheme
3. UK in Contravention of European Asbestos Law
4. An Important Legacy: Hospice Care
5. Smoking and Asbestos: A Bad Mix
6. News Round-Up

1. Two Families Caught up in Supreme Court Litigation

by Ruth Davies1

In October 2010, the Supreme Court heard evidence regarding two mesothelioma cases; that of Willmore-v-Knowsley Metropolitan Borough Council and Sienkiewicz-v-Grief (2011) UKSC.2 I was fortunate to be the Willmores' solicitor. In these cases, the Supreme Court considered the position where asbestos exposure was slight and where the only other known exposure was environmental. The judgment came out on March 9, 2011. The Defendants argued that, where there was a single occupational exposure to asbestos, the “Fairchild exception” did not apply and the Claimant only succeeded if he could show that the Defendant's exposure had more than doubled the environmental risk of mesothelioma. Alternatively, they argued that exposure which did not at least double the background risk was not “material” exposure within the meaning of Fairchild and the Compensation Act 2006.

The Supreme Court had considered mesothelioma claims in the case of Fairchild in 2002. Mesothelioma is not like other disease claims since the state of scientific knowledge does not allow identification of which fibre or fibres, and therefore which employer or employers, are responsible for the development of the disease. Just by using the conventional balance of probabilities test, the Claimant would lose, even though it is obvious that one or more of the employers, were in fact responsible for the development of the disease. In Fairchild, the House of Lords solved this problem by deciding that any employer whose tortious exposure of an employee to asbestos has lead to a material increase in the risk of that employee developing mesothelioma is liable for the development of the disease.

The 2011 Supreme Court judgment of Lord Phillips held that the gaps in knowledge about the causation of mesothelioma meant it was not possible to decide causation on the basis of epidemiological evidence and therefore the concept of doubling the risk could not apply. The other Justices unanimously agreed that the doubling the risk approach was inappropriate in mesothelioma cases even when the only known exposures to asbestos were background environmental levels and a single occupational exposure. The Fairchild rule applies in single exposure cases as much as in the case of multiple occupational exposures. Furthermore, the Justices agreed that the exposure for each Claimant was not de minimis even though the exposure that Dianne Willmore had was very light indeed. Accordingly, the decision of the Supreme Court confirms that a Claimant will recover for the development of mesothelioma even where the occupational exposure is very slight, so long as it is not de minimis and even though that exposure is less than the exposure from the general atmosphere. Such cases are now, as Lord Brown puts it ''from the Defendant's standpoint, a lost cause”. In essence, the law has not changed but both families have had to undergo a long drawn out legal process whilst also grieving for their loved ones. However, the fact they have won has given them some solace. As Barre Willmore put it, “I'm so, so happy. Dianne always said she was such an ordinary person who would not amount to much. But to me she was extremely special and with this judgment now everyone can see she was not ordinary.”

Dianne Willmore was diagnosed with mesothelioma when she was only 46. She attended a school in Knowsley in the 1970s. She had asbestos exposure there from ceiling tiles. The Judge in Liverpool decided that the Local Education Authority was responsible for Dianne developing mesothelioma. The Court of Appeal dismissed the Defendants' appeal finding that the trial Judge was justified to make his decision on the facts before him. In the Sienkiewicz case, Enid Costello had worked in the offices of a factory belonging to the Defendant and had been exposed to low levels of asbestos. She had this exposure whilst walking around the factory. The trial Judge analysed the evidence of Enid Costello's exposure to asbestos in her employment assisted by a report prepared by the Defendant's expert. He said that the asbestos exposure with her employer had increased her risk of developing mesothelioma from the background risk of 24 cases per million to 28.39 cases per million, an increase of 18%. This Judge held that when there was a single exposure to asbestos, it was necessary for a Claimant to prove that the exposure had more than doubled the risk of mesothelioma developing in order for liability to attach to the Defendant. Given that it was only an 18% increased risk, he dismissed the claim. On appeal, the Court of Appeal allowed the appeal, the majority holding that the effect of the decision in Fairchild and the enactment of Section 3 of the Compensation Act 2006 were to make a tortfeasor liable for the development of mesothelioma where any exposure to asbestos had materially increased the risk of its development.3

2. Pleural Plaques: Extra-statutory Scheme

by Dave Fisher4

The closing date for applications under the Ministry of Justice (MOJ) Scheme is August 1, 2011. The MOJ have confirmed that any existing applications that are outstanding will continue to be processed after that date subject to an overall closure date for the Scheme of March 31, 2012. Applicants are required within 30 days to provide their supporting documents along with a statement of truth. The IT system automatically closes a claim if the appropriate documentation is not received. This is creating a problem for applicants who are unable to provide proof of their employment. If the applicant has no documentation (and many do not) the MOJ require an employment history schedule from HM Revenue & Customs (HMRC). Currently HMRC have a customer waiting time of 89 days. This has prompted questions to be asked in Parliament. The Secretary of State for Justice confirmed that the onus is on the applicant or their representative to obtain and provide the information but also confirmed that his officials had spoken to HMRC so that they were aware of the position. Since these questions were raised the HMRC have been able to produce employment schedules on request within 2 weeks provided that it is made clear on the request that this is for an MOJ Pleural Plaques Scheme claim. Requests for an extension of the 30 day time limit may be made by contacting the MOJ helpline and will be granted if reasonable. The MOJ should be notified in writing that the HMRC schedule has been requested and will be submitted as soon as it is received.

The Scheme is not limited to applicants who had issued court proceedings or submitted a letter of claim prior to October 17, 2007. Payments are available to those who approached solicitors, a trade union or an asbestos support group about their pleural plaques case before October 17, 2007 and named a Defendant and/or insurer and received confirmation that their case was being taken on. Overseas applicants may be entitled to a payment, subject to them satisfying the Scheme eligibility criteria. In answer to the questions raised in Parliament the Secretary of State for Justice has stated that as of February 25 a total of 6,991 applications had been registered with the Scheme and that the average length of time taken to process an application based on completed cases is currently 42 days.

3. UK in Contravention of European Asbestos Law

The downgrading of the UK's regime for protecting asbestos-exposed workers has brought a reprimand from Brussels which could, if the faulty legislation is not amended, result in proceedings at the European Court of Justice.5 Following up on a complaint that European asbestos directive 2009/148/EC6 was not correctly transposed into UK legislation, the European Commission sent a reasoned opinion to London requesting the authorities comply with the terms of the directive. The infringement notice stated:

“the UK law omits certain specific parts of Article 3(3) (a) and (b) and so widens the scope of the derogation of this Article. The UK Legislation currently focuses on the measurement of exposure to asbestos and not enough on the how the material will be affected by the work itself, while the directive deals with both exposure and the material.”

Receipt of the complaint which set off a four year investigation was confirmed by the European Commission Secretary General's office on January 19, 2007. The complaint had been lodged by the Asbestos Removal Contractors Association (ARCA), a UK trade association which represents the interests of asbestos removal contractors and associated asbestos businesses. “Despite lengthy debate between ARCA and the HSE, the HSE failed to convince ARCA that CAR 2006 (the Control of Asbestos Regulations 2006) implemented the minimum requirements of Article 3 in the Directive as required under European Union law.”7 The points of controversy relate to UK exemptions for work which results in “sporadic and low intensity exposure to asbestos” such as supposedly occurred during work on asbestos-containing decorative coatings.

A fortnight after the European Commission's warning was issued, dozens of politicians called on the Westminster Government to rectify the situation. Expressing their views in Early Day Motion 1480 “Protecting Workers from Asbestos-Related Diseases,” they wrote:

“this House notes that over 2,500 people died from asbestos-related diseases in 2009; further notes that the European Commission has told the UK to change laws that exempt some maintenance and repair activities from the EU Directive protecting workers from asbestos; and calls on the Government to immediately review these exemptions and give UK workers the level of protection from asbestos they deserve.”8

Although the Health and Safety Executive (HSE) has declined to comment on what is being done to resolve this situation, developments are, they said, anticipated by the middle of April.9 This would be cutting it pretty close as there is only a two-month window to comply with the infringement notification; as the European document was issued on February 16, one could presume that action would be required by mid-April.

The background to this conflict revolves around changes made to the UK regime for minimizing occupational asbestos exposures. According to Brussels, CAR 200610 failed to meet the minimum European standards set by the Asbestos Worker Protection Directive 2006. This finding was not altogether unexpected. During a rather long-winded consultation process prior to the adoption of CAR 2006, there had been serious criticism from trade unions, asbestos victim support groups, academics and the asbestos removal industry about plans to delicense some work with asbestos such as that involved in:

“(i) short, non-continuous maintenance activities,

(ii) removal of materials in which the asbestos fibres are firmly linked in a matrix,

(iii) encapsulation or sealing of asbestos-containing materials which are in good condition…”

The Trades Union Congress (TUC) was one of the groups opposed to CAR 2006's dilution of essential safety measures. Reacting to the news of the European Commission's infringement action, on March 1 the TUC General Secretary Brendan Barber said:

“this is another nail in the coffin of the myth that the HSE has been 'gold-plating' regulation. European regulations are there to protect workers and governments should see them as being minimum standards rather than trying to weasel out of their commitments. Had Ministers listened to the concerns of unions when they approved the regulations, we would not be in this mess.”

Rob Blackburn, a veteran asbestos consultant and a leading member of ATaC (Asbestos Testing and Consultancy) has been closely following the CAR 2006 debacle. Commenting on the current situation, he said:

“under the contentious elements of the UK regulations, exemptions were widened so that just 9,000 workers qualified for medical surveillance and record retention and only work that the UK defined as 'licensable' is notified to enforcing authorities. In the consultation document for CAR 2006 it was stated that 1.8 million workers were regularly exposed to asbestos. The effect of the unlawful provisions in this legislation meant that a significant number of workers, perhaps running into hundreds of thousands, have been denied the protection promised to them by European law. The consequences of failing to implement this directive has driven back our understanding of asbestos diseases at low exposure and reduced the enforcing authorities' ability to police work on asbestos in the UK.”

4. An Important Legacy: Hospice Care

Hospices which provide a much-needed if often neglected service to the community will undoubtedly benefit from a decision announced in February 2011; at the 11th hour, insurers Royal & Sun Alliance (RSA) dropped the appeal to a 2010 High Court verdict in the case of James Willson-v-Foster Wheeler, a company with an RSA Employer's Liability policy. The judgment handed down at the Royal Courts of Justice on August 5, had held the negligent engineering corporation liable not only for exposing the former boilermaker to asbestos but for the costs incurred by St Joseph's Hospice where Mr. Willson spent his final 23 days. Reacting to Thornton's ruling, Michael Kerin, of the Hackney-based hospice, said:

“We are delighted that the judge has recognised that whilst our work is supported by voluntary donations and open to all, there is a financial cost in providing these. It seems only fair that these costs should be repaid in cases such as this, which will help us to continue to provide the service for others.”11

In 2006, Mr. Willson was diagnosed with the asbestos cancer mesothelioma, more than fifty years after being exposed to asbestos at Deptford Power Station. His two daughters and granddaughter operated a rota to provide him with 24 hour care but the deterioration of his condition necessitated more specialist treatment. Commenting on her father's stay at St. Joseph's, Catherine Drake said the hospice team:

“had provided so much excellent support and comfort for us and my father as his pain became worse towards the end. The hospice staff could not do enough for us all and it seemed unfair that the company that caused his suffering did not have to pay the hospice in some way.

Donations to the hospice are voluntary but my sister and I were determined to ensure that something was done. We could not be more delighted by the outcome which means that the hospice will recover most of the costs generated while caring for my father and these can now be used to care for someone else”

Many hospices have struggled for years to plug the gap between income received from the national health service, local authorities, central government and charitable contributions and outgoings. In the current economic climate, the situation is bound to worsen with government cut-backs, pressure on councils and reduction in charitable contributions. The successful outcome of the Willson case provides some hope that, at the very least, those guilty of harmful practices will be forced to make a contribution to the hospice movement. Putting this development into context, Dr. Helen Clayson, from St. Mary's Hospice in Barrow-in-Furness, noted:

“As a result of its former shipbuilding history, Barrow has an elevated rate of asbestos-related disease and St. Mary's has treated many people affected by these diseases. The care they receive is freely given; it would be dreadful to add to their distress by making them worry about money. This is not what St. Mary's is about.

Nevertheless, the resolution of the Willson case opens the door to a new source of funding for the hospice and, as such, should not be ignored. To this end, we hope to make people who attend our asbestos victims' support group, BARDS, aware of the significance of this ruling.”

Whilst it is too soon to predict how much money will be extracted from negligent corporations, it must be hoped that the sums will be large. It is a credit to Mr. Willson's family and a fitting legacy to him that hospices that care for terminally-ill patients could benefit from the family's determination to hold defendant corporations to account.

5. Smoking and Asbestos: A Bad Mix

Research recently published has quantified the lung cancer risk in Asian and European cohorts of asbestos-exposed workers. The findings of both studies support the consensus that exposure to asbestos combined with a history of smoking increases an individual's chances of contracting lung cancer. In the paper Lung cancer mortality from exposure to chrysotile asbestos and smoking: a case-control study within a cohort in China, the authors document the synergistic effect of asbestos exposure and smoking as well as the association between exposure to chrysotile asbestos and an increased risk of lung cancer. 12 The 1,139 male subjects of the research as well as the controls were selected from a cohort of workers from a Chinese asbestos textile factory which only used chrysotile asbestos in the production of asbestos textiles, cement products, friction materials, rubber products and heat-resistant materials. In their paper, the scientists explain that:

“after categorising the workers into three exposure levels, we observed a 3.6-fold increased risk for lung cancer in those with high exposure, that is, those working in the raw material and textile sections, which was significantly higher than that observed with low exposure… smoking was found to be a strong risk factor. The result confirms the strong association of chrysotile asbestos with lung cancer… Overall, evidence now indicates that the interaction of the two factors is more than additive.”

Having identified the risk posed by chrysotile asbestos, the scientists commended their findings to China's policy makers.

Research Report (RR833): The joint effect of asbestos exposure and smoking on the risk of lung cancer mortality for asbestos workers (1971-2005)13 published in January 2011 by the Health and Safety Executive found:

  • 1,878 lung cancer deaths among 98,912 British asbestos workers;
  • that only 2% of lung cancer deaths took place in asbestos workers who had never smoked, most of which occurred 30-39 years after the hazardous exposures took place;
  • that insulation workers were at the greatest risk along with workers who had been exposed to asbestos before they were 20 years old;
  • “the interaction between asbestos exposure and smoking for asbestos workers was greater than additive, and the hypothesis that asbestos produces an effect proportional to the effect of smoking (multiplicative) could not be rejected. For those asbestos workers who smoked, an estimated 3% of lung cancer deaths were attributable to asbestos only, 66% to smoking only, and 28% to the interaction of asbestos and smoking.”

One of the researchers' key recommendations was that members of these at-risk cohorts should actively be encouraged to give up smoking to lower their risk of lung cancer mortality.

6. News Round-Up

Developments

Reinstatement of Pleural Plaques Compensation in Northern Ireland

A bill in the Northern Ireland Assembly which will overturn the House of Lords' ruling that ended compensation for pleural plaques sufferers passed its final stage towards the end of March 2011.14 The Damages (asbestos-related conditions) Bill reverses the Johnston-v-NEI Combustion Ltd. decision (October 17, 2007), thereby allowing personal injury claims to be brought for asbestos-related pleural plaques, pleural thickening and asbestosis in Northern Ireland (NI).15 This legislation will put pleural plaques victims in NI on an equal footing with their counterparts in Scotland; English and Welsh plaques victims remain barred from bringing claims.16 Clarifying the hurdles still faced by this bill, on March 30, 2011 a spokesperson for the NI Department of Finance and Personnel wrote:

“There are rules which govern when a Bill can be submitted for Royal Assent. Ordinarily, a Bill will not be submitted in the period of 4 weeks beginning with the passing of the Bill. The Bill passed its Final Stage in the Assembly on 21 March 2011. Commencement necessarily links in to the date of Royal Assent and the operative date of the new legislation will, therefore, be considered when Royal Assent is given.”

Early Day Motion 1578

The motion titled: Supreme Court Ruling on Dianne Willmore which was tabled on March 10, 2011 by MP Annette Brooke, Chair of the Asbestos in Schools group, calls on the Government to undertake “an assessment of the risk to children from asbestos exposure.”17

Mesothelioma Lump Sum Payments (Conditions and Amounts) Amendment) Regulations 2011

On March 9, 2011 Lord Freud, Parliamentary Under Secretary of State for Work and Pensions, told the House of Lords that as of April 1, 2011 the lump sum amounts paid under The Pneumoconiosis etc (Workers' Compensation) Act 1979 and the mesothelioma scheme set up by The Child Maintenance and Other Payments Act 2008 were being increased by 3.1%. This follows a 2010 increase of 1.5% to payments made under both schemes. As a result of the 2011 changes the amount payable to a mesothelioma sufferer “under both the 1979 Act and the 2008 mesothelioma scheme will increase to 59,896 for a 50 year-old and 36,422 for one aged 60 at the date of diagnosis.”18

Employers' Liability Insurance

Tracing employers' liability insurers (PS11/4) is a 68-page policy statement (2011) published by the Financial Services Authority (FSA);19 it reports on the main issues arising from Consultation Paper 10/13 (Tracing employers' liability insurers). The rules and guidance announced on February 24, 2011 came into force on March 6, 2011 and apply to all general insurers and Lloyd's managing agents. According to the FSA, the changes are intended to “address the issues of historical (insurance) cover by providing a comprehensive list of insurers that are liable or potentially liable for UK commercial lines employers' liability insurance …”

The Association of Personal Injury Lawyers (APIL) was highly critical of the FSA's new regime saying it prioritized insurers' profits at the expense of victims' rights:

“Many sick and dying workers who can't trace their employers' insurers from decades ago still won't be able to claim the compensation they need, and insurers know it. Some people are dying from asbestos-related diseases without receiving their compensation and the situation cannot go on.” 20

APIL is calling for the insurance industry to establish a fund of last resort comparable to the Motor Insurers' Bureau for people with asbestos-related diseases who are unable to trace their employers' liability insurers. Setting up such a bureau is a key demand of the Asbestos Victims Support Groups' Forum UK which, in a letter sent on March 29, 2011 to Lord Freud, reiterated the need for an Employers Liability Insurance Bureau to “resolve the long-standing issue of historic traces.”

Literature

Global Magnitude of Reported and Unreported Mesothelioma appears in the current issue of Environmental Health Perspectives, the most widely read peer-reviewed journal on the impact of the environment on human health. 21 Using available data and inspired guesstimates, the epidemiologists report that “one mesothelioma case has been overlooked for every four to five reported cases.” Having calculated the occurrence of 38,900 cases of mesothelioma in the period 1994-2008 in the 33 countries which have no mesothelioma incidence data, they highlight the need for “countermeasures at national, regional and international levels.” A commentary on this research, “Where There Is Asbestos, There Is Mesothelioma,” appears in the same issue of the journal.

The Global Reorganization and Revitalization of the Asbestos Industry, 1970-2007 by Dr. Jim Rice has been published in the International Journal of Health Services. 22 The paper, which details the long-term strategy implemented by vested interests to manipulate the asbestos agenda, concludes that the revitalization of the asbestos industry has the potential “to prefigure a significant expansion of asbestos-related disease into the 21st century, absent a global ban on asbestos use.” The author states: “The production and consumption of asbestos in the developing countries is a 'needless and expanding' threat to public health.”

Events

Recent Issues in Asbestos Related Disease Claims

On May 20, 2011 an APIL-accredited course is being held in Doncaster by the South Yorkshire Asbestos Victim Support Group (SARAG). The conference “Recent Issues in Asbestos Related Disease Claims” will feature presentations from legal and medical experts. Ruth Davies, who was Dianne Willmore's solicitor, will discuss the Supreme Court ruling; Solicitor Helen Ashton will address the situation regarding the trigger litigation. For more information, ring SARAG at 01709 360 672 or email sarag@rainbuilding.org.uk

Asbestos & the Law Conference

The Merseyside Asbestos Victim Support group (MAVSG) is holding a Law Society CPD/APIL-accredited conference on September 27, 2011 at the Liverpool Maritime Museum. The 2011 keynote speaker Mr. Justice Langstaff will be joined by other asbestos experts including: Coroner Andre Rebello, Solicitor Andrew Morgan, Barrister Simon Kilvington and physicians Drs. M. Sharma and J. Moore-Gillan. Proceeds from the event will be going to the MAVSG. For more information contact the group by phoning 0151 236 1895 or sending an email to: grf15@dial.pipex.com

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1 Solicitor Ruth Davies is a Partner at John Pickering and Partners; she can be contacted at: rd@johnpickering.co.uk

2 http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2009_0219_Judgment.pdf

3 Also see: A Righteous Decision for UK Mesothelioma Victims. March 9, 2011.
http://ibasecretariat.org/lka-righteous-decision-uk-mesothelioma-victims.php

4 Dave Fisher from Thompsons Solicitors can be contacted at: davefisher@thompsons.law.co.uk

5 Health and safety at work: Commission requests the UK to comply fully with EU legislation on asbestos. February 16, 2011.
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/164&format=HTML&aged=0&language=EN&guiLanguage=en

6 Directive 2009/148/EC of the European Parliament and of the Council of 30 November 2009 on the protection of workers from the risks related to exposure to asbestos at work
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:330:0028:0036:EN:PDF

7 ARCA Statement on the European Commission's request for the UK to comply fully with EU legislation on asbestos. March 2, 2011
http://www.arca.org.uk/ARCA-article.asp?ArticleID=300

8 http://www.parliament.uk/edm/print/2010-11/1480

9 Email received from HSE, March 23, 2011.

10 http://www.legislation.gov.uk/uksi/2006/2739/contents/made

11 Irwin Mitchell Press Release. Landmark Ruling Stands: Those Responsible For Death Must Contribute To Care Costs. February 15, 2011. The 2010 ruling also ordered the defendant to pay the hospice for its treatment of Mr. Willson whilst he was still at home.
http://www.irwinmitchell.com/news/Pages/Lawyer-Says-Decision-Provides-Access-to-Vital-Funds-For-Selfless-Hospices.aspx

12 Yano E, Wang X, Wang M, Qiu H, Wang Z. Lung cancer mortality from exposure to chrysotile asbestos and smoking: a case-control study within a cohort in China. Occup Environ Med (2010). September 10, 2010.
http://oem.bmj.com/content/early/2010/09/07/oem.2009.051615.abstract

13 http://www.hse.gov.uk/research/rrhtm/rr833.htm

14 Hunt S. Hope for asbestos pleural plaques sufferers in Northern Ireland. March 25, 2011.

15 http://www.niassembly.gov.uk/legislation/primary/2010/nia10_10.htm

16 Damages (Asbestos-related Conditions) (Scotland) Bill received Royal Assent on April 17, 2009.
http://www.scottish.parliament.uk/s3/bills/12-Asbestos/index.htm

17 http://www.parliament.uk/edm/2010-11/1578

18 http://services.parliament.uk/hansard/Lords/ByDate/20110309/grandcommittees/part001.html

19 http://www.fsa.gov.uk/pubs/policy/ps11_04.pdf
www.fsa.gov.uk/pages/Library/Policy/Policy/2011/11_04.shtml

20 APIL Press Release. Rights of asbestos victims come second to insurers' profits. March 22, 2011.
http://files.apil.org.uk/pdf/press_releases/2124.pdf

21 Park E, Takahashi K. et al. Global Magnitude of Reported and Unreported Mesothelioma. Environmental Health Perspectives. April 2011; 119, 4.
http://ehp03.niehs.nih.gov/article/fetchArticle.action?articleURI=info%3Adoi%2F10.1289%2Fehp.1002845

22 Rice J. Global Reorganization and Revitalization of the Asbestos Industry, 1970-2007. The International Journal of Health Services, 2011; 41,2:239-254.
The abstract can be read at: http://artsci.nmsu.edu/sociology/research-and-outreach.html
The paper can be obtained from: http://baywood.metapress.com/app/home/main.asp?referrer=default

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Compiled by Laurie Kazan-Allen
©Jerome Consultants