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|ISSN 1470-8108||Issue 86||Spring 2012|
And so the time had come; after years of waiting, much personal anguish, hundreds of legal submissions and days of hearings in the High Court (2008),1 Court of Appeal (2010),2 and Supreme Court (2011) on March 28, 2012 the UK's highest court handed down its verdict in what has become known as the Trigger Case.3 The findings of the Supreme Court Justices in the most important test case in the history of asbestos litigation4 were detailed in a 61-page judgment issued by Lord Phillips (President), Lords Mance, Kerr, Clarke and Dyson. From a claimant's point of view, the nearly unanimous decision vindicated the commonsense belief that liability for the asbestos cancer, mesothelioma was inextricably linked to the date of negligent exposure to asbestos; it was, their Lordships decided, incumbent upon a former employer or its insurers to satisfy mesothelioma claims made under Employers' Liability (EL) policies in force at the time tortious exposure took place. Replacing confusion with clarity, this long-awaited judgment provided justice, albeit with language formulated by and for the country's top legal brains.
The main judgment written by Lord Mance sets out the Court's position on the two main issues:
The relief of mesothelioma victims and those who represent them could hardly have been more dramatic. Despite the fact that many of those for whom the tests cases had been brought had died as the litigation wound its way through the judicial system, their relatives expressed satisfaction that justice had been done. Former construction worker Arthur Eddleston died of mesothelioma aged 58; his widow Joan welcomed the clarity this decision brought sufferers and their families. I am pleased, she said that at last I have achieved justice for Arthur. Ruth Melanie Durham, whose dad Leslie Screach died of mesothelioma nine years ago, was delighted to hear of the court's decision I was determined to see this through with a positive outcome for all those who, like my dad, suffered so terribly because of someone else's negligence.7 Maureen Edwards, whose father Charles O'Farrell had also died of mesothelioma in 2003, shared Ms. Durham's sentiments: All I ever prayed for, she said was the right decision. Mr. O'Farrell, like many other mesothelioma sufferers never reached retirement age There was, his daughter explained, never any question about who was to blame; all this long battle was about was insurers wanting to get out of paying. It is very difficult for us to understand the insurance industry's attitude to dying people.8
Summing up the feelings of the families, Tony Whitston, Chair of the Asbestos Victims Support Groups Forum UK said:
Thousands of claimants never lived to [see] the just outcome of this case. Their grieving families have had to wait years for justice while this case was dragged by insurers through every court in the land. They will greet this judgment with relief rather than joy. This case is the latest in a series of shameful attempts by insurers to limit their liability to pay compensation. Let us hope it is the last.9
The ill will and bad press which the actions of four former insurers Municipal Mutual Insurance Limited, Builders Accident Insurance Limited, Excess Insurance Company Limited and the Independent Insurance Company Limited brought on the entire British insurance industry was something of an own goal for a financial sector loved marginally less than banking and stockbroking. The legal strategy adopted by these recalcitrant insurers sought to overturn years of legal precedents in order to achieve colossal savings at the expense of dying victims; one newspaper article estimated that in the short-term the value of a win by the insurers could have been £600m while in the long-term it could have reached a staggering £5 bn.10 The Association of British Insurers (ABI) attempting to distance itself from the behaviour of a small group of insurers, welcomed the Supreme Court's ruling with the ABI's Nick Starling saying:
The ABI and our members are committed to paying compensation as quickly as possible to people with mesothelioma who have been exposed to asbestos in the workplace.
We have always opposed the attempt to change the basis on which mesothelioma claims should be paid, as argued by those who brought this litigation . This case has been brought by a small group of 'run-off' insurers acting independently and at odds with the views of the majority of the UK insurance industry the judgment provides clarity and certainty for both mesothelioma claimants and insurers.11
by Vijay Ganapathy12
On 25 April 2012, three Judges in the Court of Appeal unanimously dismissed an appeal by Cape plc and confirmed that it was liable for extensive asbestos operations previously undertaken by one of its subsidiary companies, Cape Building Products (formally called the Uxbridge Flint Brick Company).13 This case is significant because it is the first of its kind in the UK to hold a parent company liable for a subsidiary's activities. Many thought that, as both were separate legal entities, one could not be found liable for the actions of the other. In fact, there is a rule of law, referred to as the corporate veil, which makes it nearly impossible to hold a parent company liable in such cases.
Lawyers Leigh Day & Co, who represented the Claimant Mr Chandler, have seen the injustice this rule can create, particularly for asbestos disease sufferers, and been aware of Cape's dreadful asbestos legacy which dates back to the late 1800s when the company began to capitalise on the commercial potential of asbestos production. Even as the Chief Inspector of Factories warned of the evil effects of asbestos (1898), Cape continued to expand its asbestos industry into the early and mid 20th century. In fact, its growth was tremendous and such was its expansion, that it became necessary for Cape to set up various subsidiaries to handle different parts of its thriving asbestos business.
One of these subsidiaries was Cape Building Products which was Mr Chandler's employer. This company owned and operated a site at Iver Lane in Uxbridge where Asbestolux insulation boards were manufactured in a large open factory that ran day and night. Mr Chandler, who worked in a yard outside, was exposed to the asbestos given off by this factory daily. Mr Chandler worked there for less than 2 years, but such was his exposure, that it was considered sufficient for him to develop asbestosis with which he was diagnosed in 2007. As is the norm, Mr Chandler sought initially to sue his employer, Cape Building Products, but that is now just a shell company with no assets. Also, and to make matters worse, that company's insurance policy has an exclusion clause which bars claims from former workers diagnosed with asbestosis.
It therefore initially appeared that Mr Chandler had no means of seeking redress. However, lawyers who have dealt with claims involving Cape and their subsidiaries are aware of the close involvement Cape had with its subsidiaries as well as Cape's in-depth knowledge of the dangers of asbestos. In fact, Cape employed their own Group Medical and Safety Officers who were understood to have monitored the dangerous effects on workers at all of Cape's subsidiary factories. Despite this knowledge, the evidence produced at trial suggested that Cape did nothing to protect the workers. As such, the amount of suffering and death caused by these activities across its many subsidiaries over time must have been immense. This is not just to Cape and Cape's subsidiaries' employees, but also to those living close to its factories and using its dangerous products.
Therefore and notwithstanding the difficulties of circumventing the corporate veil, Leigh Day pursed Mr Chandler's claim against Cape plc, the parent company. At the High Court last year, Mr Justice Wyn Williams was persuaded of Cape's knowledge of the dangers of asbestos and its close relations with its subsidiaries, and so handed down judgment in Mr Chandler's favour. However, Cape (possibly aware of the implications of the decision) appealed. Amongst the many arguments Cape put to the appeal judges, they, rather surprisingly, sought to argue that Cape should not be liable because it did nothing i.e. that a duty of care to the workers would only arise if it was actively involved in safety matters. However, the Court of Appeal disagreed and dismissed their appeal.
This is a significant victory, not just for Mr Chandler but for other victims of Cape's extensive former asbestos operations. Also, this could benefit countless other sufferers as many face insurmountable obstacles in locating a company with sufficient assets or employers liability insurance to cover their claims. A parent company is more likely to survive over the many years it takes for asbestos diseases to develop, so this could give hope to many.
For many months the dark cloud represented by the Jackson Review14 and its ugly offspring The Legal Aid, Sentencing and Punishment of Offenders Bill (LAPSO) had been cause for serious concern amongst asbestos victims and the groups representing them. It is really not hard to see why the government's plans were nicknamed Robin Hood in reverse; the withdrawal of the equality of arms provided by no win, no fee agreements, would almost certainly price the injured out of the courts. Justice for all would become justice for some. Under LAPSO, solicitors acting for claimants under the Conditional Fee Arrangement system would be restricted to claiming a success fee of 25% of the damages awarded for pain and suffering; this payment, which had previously been made by defendants would now come from claimants. The 10% uplift in general damages for pain, suffering and loss of amenity offered to soften the impact of this change would come nowhere near covering the financial loss. Difficult and therefore costly mesothelioma cases, such as those for people who had experienced light or intermittent asbestos exposure, would become less likely to attract legal representation.
During the consultation over LAPSO and the Bill's progression through Parliament, mesothelioma victims voiced their opposition to the radical overhaul being pushed forward by the Government. The experience of Yvette Oldham, whose husband had asbestos cancer, was typical:
My husband Trevor and I were devastated upon hearing his diagnosis of mesothelioma in March 2010. We were just a normal couple with a grown-up son, leading busy lives at work, socialising and sporting activities. Trevor is in no way to blame for his condition and was exposed to asbestos between 16 and 24 years of age when he was an apprentice lift engineer erecting lifts on building sites This disease has affected our lives in every possible way and stress levels have been extremely high for both of us Trevor has been in pain since the condition showed itself, he is very sensitive to strong pain-killing drugs, so is unable to take more effective pain relief. Compensation would be eroded by having to pay legal costs plus insurance to cover defendants' legal costs, plus the worry of having to pay some fees upfront. This is an insult and will discourage people from making a claim to which they are entitled. This Bill should be designed to stop the 'ambulance chaser' brigade who contact prospective clients and advertise constantly, not workplace victims whose lives were put at risk by exposure to asbestos.15
Lobbying by asbestos victims, spearheaded by the Asbestos Victims Support Groups' Forum UK (the Forum), pressed Parliamentarians to exempt claimants suffering from occupational respiratory diseases from the changes. At meetings and in correspondence, victims reached out to their elected representatives and to members of the House of Lords to raise awareness of the reality of their plight. It was not possible to win an exemption for all asbestos victims but, in the end, an exemption for mesothelioma sufferers was achieved, the Government having faced fierce resistance from the House of Lords; worthy of mention in the Battle of LAPSO 2012 are Lord Alton of Liverpool, Lord Avebury and MP Paul Goggins.
Announcing the government's capitulation on April 24, 2012, Justice Minister Jonathan Djanogly told the House of Commons that, pending further review by the Lord Chancellor, mesothelioma claimants would be exempt from the reforms to the no-win, no-fee system.16 The Minister's statement that The challenge for Government, for employers and for insurers is how we ensure that we have procedures in place that enable sufferers to receive compensation more quickly and without the stress of having to pursue protracted litigation, has increased speculation that a mandatory bureaucratic scheme may be introduced to ostensibly reduce legal costs but at the same time minimize payouts to victims; time will tell. That, however, will be another battle for another day. In the meantime, the final words on these developments should go to the Forum's Chair Tony Whitston who, along with John Flanagan from the Merseyside Asbestos Victims Support Group, was mentioned in the House of Lords debate: All the Forum groups and the many families associated with them have, Whitston wrote made a profound impression on the debate as it proceeded through the Commons and the Lords. What is clear to me is that every time a plea for a final final shove was sent out there was always an immediate response. I think this campaign is a great credit to the Forum.
Assessing general damages for a 92-year old mesothelioma victim is not something many judges have had to do. This task, however, fell to Mrs. Justice Swift when she presided over the case of Dennis Ball v. the Secretary of State for Energy and Climate Change. In her 11-page verdict, the Judge rejected the defendant's request for a lowering of damages for pain, suffering and loss of amenity due to the plaintiff's advanced age stating that a person of any age who is informed that his or her life will be cut short by the effect of a harmful substance to which he or she has been wrongly exposed is likely to suffer a good deal of distress.17 Regarding Mr. Ball's particular situation, the Judge had no reason to suppose that he is not experiencing a real fear about the ordeal that may be in store for him, together with distress at the knowledge of his imminent death and its cause.18 There was no doubt that Mr. Ball was well aware of the diagnosis and prognosis (even if he) has been unwilling to talk about his prognosis.
Several sections of the verdict detail monetary ranges for mesothelioma claims as set out in successive Judicial Studies Board (JSB) Guidelines for the assessment of general damages in personal injury cases. While the levels of damages are intended to assist the judges, they are not binding, said Justice Swift, even if they are extremely influential, especially in mesothelioma cases where there are few reported awards by judges as most cases settle out of court. The fact that Mr. Ball had been occupationally exposed to asbestos as a miner between 1967 and 1985 was not in dispute. What was being contested was the size of his entitlement to damages given the relatively short lifespan anticipated at his age. Justice Swift took great pains to consider Mr. Ball's state of health and living conditions prior to the onset of mesothelioma. A man in reasonably good physical health, with limited mobility and in need of some assistance with household tasks, Mr. Ball had been fiercely proud of his independence and his ability to live on his own in his flat. His determination to regain his independence was evinced by the fact that after months in a nursing home he was still paying rent in the anticipation of returning to his flat.
Citing decisions and comments by Senior Master Whitaker, Justice Swift endorsed Whitaker's consideration of the total experience of the claimant regardless of the duration of the illness. In assessing the level of damages in the 2007 case brought on behalf of Graham Smith, whose illness lasted less than three months, factors other than duration needed to be considered including, Whitaker noted: the extent of the unpleasant surgical procedures, which victims of mesothelioma may have to undergo One also has to bear in mind that typically the worst symptoms of pain suffering and loss of amenity occur in the last weeks and days of the disease's progress, and that the death is, particularly when the pain is not well controlled, a horrible one. The total damages awarded by Mrs. Justice Swift were £73,890.16 of which £50,000 was for pain, suffering and loss of amenity. Mr. Ball's lawyer, Lesley Minnett of Fentons Solicitors LLP, reported that her client was pleased to learn that his case might help other older mesothelioma victims secure the appropriate compensation to which they were entitled.19
The Great Asbestos Trial
On February 13, 2012, a Turin Court found former Eternit executives Stephan Schmidheiny and Louis de Carter de Marchienne guilty of causing permanent environmental disaster and failing to comply with safety rules as a result of which thousands of Italians died from asbestos-related diseases. The defendants were sentenced to 16 years in prison and ordered to pay almost one hundred million euros to asbestos victims, grieving relatives, affected communities and associations involved in the legal proceedings.20
Death of Dr. Kevin Browne
The death was announced on February 13, 2012 of Dr. Kevin Woodthorpe Browne, formerly the Medical Adviser of the Cape Asbestos Group, the UK's 2nd largest asbestos conglomerate. His association with Cape, which began in 1972, lasted for over twenty years.21
Increased Government Payments for Mesothelioma
As of April 1, 2012, there has been a substantial increase in the size of payments made under the Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2012. One-off lump sum payments of £52,772 to claimants 37 years old or younger under 2008 Regulations have been increased to £81,536 (+55%) while payments to their dependents have risen from £23,953 to £42,432 (+77%). Although amounts to older claimants are significantly less, they have also risen. Under the 2008 regulations, the amount awarded to a 77-year old applicant was £8,197; this is now £12,666 (+55%).22
New Asbestos Regulations
On April 6, 2012, the Control of Asbestos Regulations 2012 came into force. Changes made in the UK regulations were necessitated by a complaint issued by the European Commission on February 11, 2011 regarding UK contravention of Article 3 of European Directive 2003/18/EC. The European legislation was designed to improve protection for maintenance workers at risk of occupational exposure to asbestos. The new law is intended to close UK loopholes which had allowed exemptions for some activities such as work on asbestos-containing decorative coatings that resulted in sporadic and low intensity exposure to asbestos.23
Up-to-the-minute news of current asbestos-related developments and the location of resources relevant for the asbestos victims' community are now being transmitted over twitter by Laurie Kazan-Allen, the editor of the British Asbestos Newsletter and the Coordinator of the International Ban Asbestos Secretariat.24 To follow her, click on: @ibasecretariat
The monograph entitled Eternit and the Great Asbestos Trial was published on February 13, 2012 to coincide with the announcement of the verdict in the Italian trial of asbestos defendants.25 The text, the only English language investigation of Eternit's worldwide asbestos operations, examines the forces which coalesced to bring the legal proceedings in Italy as well as the context within which this and other asbestos cases have been mounted against Eternit entities on three continents.
In March, 2012, the International Agency for Research on Cancer issued A Review of Human Carcinogens: Arsenic, Metals, Fibres, and Dust.26 The section on asbestos, which takes up 90 pages of this 499-page document, is conclusive in its findings stating that:
There is sufficient evidence in humans for the carcinogenicity of all forms of asbestos (chrysotile, crocidolite, amosite, tremolite, actinolite, and anthophyllite). Asbestos causes mesothelioma and cancer of the lung, larynx, and ovary. Also positive associations have been observed between exposure to all forms of asbestos and cancer of the pharynx, stomach, and colorectum. For cancer of the colorectum, the Working Group was evenly divided as to whether the evidence was strong enough to warrant classification as sufficient.
There is sufficient evidence in experimental animals for the carcinogenicity of all forms of asbestos (chrysotile, crocidolite, amosite, tremolite, actinolite and anthophyllite).
There is sufficient evidence in humans for the carcinogenicity of talc containing asbestiform fibres. Talc containing asbestiform fibres causes cancer of the lung and mesothelioma.
Cardiovascular disease mortality among British asbestos workers (1971-2005) was published on April 2, 2012 in the Journal of Occupational and Environmental Medicine.27 This paper proves what has long been suspected: workers exposed to asbestos are at an increased risk of death from cardiovascular conditions such as heart disease and strokes. The study conducted by staff at the Health and Safety Laboratory, the research arm of the UK's Health and Safety Executive, followed up a cohort of nearly 100,000 asbestos workers and found that amongst the males, most of whom had worked in the asbestos removal industry, there was a 63% increase in fatalities from strokes and a 39% increase in deaths caused by heart disease; amongst women manufacturing workers, there was a 100% increase in stroke-related deaths and an 89% increase in deaths from heart disease. The researchers conclude that These findings provide some evidence that occupational exposure to asbestos was associated with cardiovascular disease mortality in this group of workers.
Recent Issues in Asbestos Related Disease Claims
This conference, which will take place on May 30, 2012 in Doncaster, is being organized by the South Yorkshire Asbestos Victim Support Group (SARAG). Speakers include: (Chair) Laurie Kazan-Allen, legal professionals Ivan Bowley and Christopher Melton QC, Dr. Kim Survarna and other experts. For more information contact SARAG's Paula Walker by phoning 01709 360 672.
Action Mesothelioma Day 2012
During the first week of July 2012, activities to commemorate Action Mesothelioma Day will take place throughout the country. The focus this year is on a call by UK asbestos victims for a global ban on asbestos. For updated information see the website of Mesothelioma UK.28
1 High Court verdict handed down on November 21, 2008 by Mr. Justice Burton in the test cases: Durham v BAI (Run Off) Limited (In Scheme of Arrangement), Fleming & Eddleston v Independent Insurance Company Limited (in Provisional Liquidation), Edwards v Excess Insurance Company Limited, Thomas Bates & Son Limited v BAI (Run Off) Limited, Akzo Nobel UK Limited & Amec PLC v Excess Insurance Company Limited.
2 Court of Appeal (Civil Division) Judgment handed down October 8, 2010. Case Nos: A2/2009/0005, A2/2009/0006, A2/2009/0007, A2/2009/0008, A2/2009/0009, A2/2009/0014 in The High Court of Justice, Court of Appeal (Civil Division); http://www.watmores.co.uk/TriggerCA.doc
3 BAI (Run Off) Limited (In Scheme of Arrangement) and others v Durham and others  UKSC 14
4 Thompsons' Asbestos News. Justice for asbestos victims as Supreme Court rules against insurers. March 28, 2012. http://www.thompsons.law.co.uk/personal-injury/justice-asbestos-victims-supreme-court-rules.htm
5 BAI (Run Off) Limited (In Scheme of Arrangement) and others v Durham and others  UKSC 14,
6 BAI (Run Off) Limited (In Scheme of Arrangement) and others v Durham and others  UKSC 14,
7 Irwin Mitchell Press Release. Clarity, consistency and comfort for asbestos victims as Supreme Court Rules in their favour. March 28, 2012.
8 Thompsons' Asbestos News. Justice for asbestos victims as Supreme Court rules against insurers. March 28, 2012. http://www.thompsons.law.co.uk/personal-injury/justice-asbestos-victims-supreme-court-rules.htm
9 Press Release Asbestos Victims Support Groups Forum - UK. Asbestos Supreme Court Judgment Victory. March 28, 2012.
10 Dugan E. Families win landmark ruling on £600 m asbestos compensation. March 25, 2012.
15 This case history was quoted on November 21, 2011 in the House of Lords during the second reading of The Legal Aid, Sentencing and Punishment of Offenders Bill.
16 Press Association. Reforms delayed amid disease doubts. April 24, 2012.
17 Dennis Ball v Secretary of State for Energy and Climate Change  EWHC 145 (QB.) Proceedings in this case began on September 21, 2011, judgment was entered for the claimant on December 8, 2011, an assessment hearing took place on January 26, 2012 and the judgment of Mrs. Justice Swift was handed down on February 20, 2012. http://www.bailii.org/ew/cases/EWHC/QB/2012/145.html
18 Ibid, Paragraph 51.
19 Hope for ageing meso sufferers after landmark court ruling. APIL PI Focus, Vol 22, Issue 3, page 4. 2012.
20 Kazan-Allen L. Landmark victory for Italian asbestos victims. February 18, 2012.
21 Announcement. February 13, 2012. The Guardian.
22 Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2012
23 The Control of Asbestos Regulations 2012.
25 Eternit and the Great Asbestos Trial.
27 Harding A-H, Darnton A, Osman J. Cardiovascular disease mortality among British asbestos workers (1971-2005. J. Occup Environ Med. . Doi:10.1136/oemed-20110199313
Compiled by Laurie Kazan-Allen