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| ISSN 1470-8108 | Issue 101 | Summer 2016 |
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Contents:
1. The UK Asbestos Landscape – Summer 2016 1. The UK Asbestos Landscape – Summer 2016 Asbestos-related diseases continue to claim the lives of thousands of UK citizens every year; when you add together deaths from mesothelioma,1 asbestosis, asbestos-related cancers of the lung, larynx and ovary, plus mortality from colon cancer,2 cardiovascular disease and possibly stomach and pharyngeal cancers,3 the figures are staggering.4 On its own, mesothelioma – the signature disease for asbestos exposure – killed 2,515 people in Great Britain in 2014, the most recent year for which data is available with male construction workers most at risk of contracting this deadly disease. Other occupations with high incidences of mesothelioma mortality include metal plate workers, who often worked in the shipbuilding industry, carpenters, plumbers and electricians. Although the Health and Safety Executive (HSE) has, in the publication it released in July 2016, stated that mesothelioma deaths should begin to decline after 2020, it also hedged its bets about the future saying: “longer-term predictions comprise two additional sources of uncertainty which are not captured within the published uncertainty intervals for the annual number of deaths. Firstly, the long term projections beyond 2030 are particularly dependent on assumptions about certain model parameters for which there is no strong empirical basis – and in particular, the extent of population asbestos exposure beyond the 1980s. The second source of uncertainty relates to the specific mathematical form of the models we have used. Whilst they provide a good fit to observations of mortality to date, they are influenced by the fact that these deaths are still dominated by the effects of heavy past occupational exposures; it is less clear whether the models will be valid for different patterns of exposure in more recent times.” For more than a decade, Action Mesothelioma Day has been a calendar fixture for UK mesothelioma support groups, charities, researchers and campaigners. On Friday, July 1, 2016 a variety of activities took place in locations as diverse as town halls, Quaker meeting rooms, a Gothic castle and a memorial garden; those who had lost loved ones gathered together in a manifestation of solidarity for those still suffering and a demonstration of their determination to prevent future tragedies. Phyllis Craig MBE of the Glasgow-based group Clydeside Action on Asbestos spoke for many when she said: “Each year, the number attending our memorial increases... all of whom have lost a partner, a mother or father, a close relative or a friend. We must remember them and send a strong message that the legacy of extensive use of asbestos in the UK continues to blight our communities. This is not something that belongs in the past or that can be ignored. We will not allow it to be ignored, and events like this not only help to raise awareness of the damage caused by asbestos, but provide a place where people can come together, support each other and share some time with others who have also experienced loss.”5 The failure of successive British governments to adopt an asbestos eradication policy such as those in place in Australia and Poland was criticized by the asbestos sub-group of the all-party Parliamentary group on occupational safety and health in its publication: The asbestos crisis. Why Britain needs an eradication law (2015). “The time has come,” the Parliamentarians wrote “to put in place regulations requiring the safe, phased and planned removal of all the asbestos that still remains in place across Britain. Only that way can we ensure that future generations will not have to experience the same deadly epidemic from asbestos-related diseases that we suffer today.”6 Supporting this call for action in May 2016, the Trades Union Congress issued a six-page guidance document for union workplace representatives entitled Asbestos – time to get rid of it! that highlighted the occupational dangers posed to 1.3 million tradespeople by contamination of “around half a million non-domestic premises (and probably around a million domestic ones).”7 The TUC was categorical that the status quo did not provide adequate protection from asbestos contained within the national infrastructure: “there is a need to ensure that all workplaces have a programme of identifying, managing and safely removing and disposing of all asbestos. The TUC, along with trade unions, asbestos victims support groups and the all-party parliamentary group on occupational safety and health, believe that the Government should pass legislation requiring all employers to do this; but while we lobby, union health and safety representatives can press their employers to remove existing asbestos rather than just ‘managing’ it.” A 5-page leaflet published in July 2016 by The Joint Union Asbestos Committee pinpointed asbestos hazards in UK schools and provided guidance for union health and safety representatives.8 The issues covered included: what asbestos was, where asbestos products were likely to be found in schools, the legal requirements regarding the management of asbestos-containing products, the hazards posed by refurbishment and repair work, communication strategies for keeping parents informed and specific risks such as asbestos in gas marks, helmets and cabinet heaters. Action points were suggested. While the threat posed by millions of tonnes of asbestos-containing products within our infrastructure has been flagged up multiple times, the question of whether UK border controls are preventing the inflow of banned asbestos imports is one which remains unanswered. In 2015, government agencies and bodies tasked with protecting workers and the public from exposures to toxic imports declined to act on reports from Australia, Korea, Italy, Spain, and Ireland of banned asbestos-contaminated crayons, toys, consumer products and baby powder from China being sold domestically.9 In July 2016, the discovery of asbestos-containing building materials at the site of a new children’s hospital in Perth, Australia set off a media storm which resulted in shipments by Yuanda Australia PTY Ltd. being impounded by the Australian Border Force.10 Enquiries by an ad hoc UK asbestos action group established that Yuanda UK Co. Ltd., part of the same Chinese-owned industrial conglomerate as the Australian company, was involved in several high-profile building projects in London.11 An emailed letter to Richard Judge, CEO of the HSE – the nominated competent authority in the UK tasked with enforcing REACH12 regulations – received responses on August 11 and August 16.13 In the latter message, Hannah Doherty, from the Compliance Branch of the HSE, confirmed that the HSE had “decided to undertake a formal investigation in relation to the potential import and use of asbestos by Yuanda (UK) Co. Ltd., in line with HSE procedures…” As news of the UK investigation of potentially dangerous imports was spreading,14 stakeholder groups were also considering the implications of reports that plans were afoot to streamline the retention of corporate files by Companies House.15 Considering the decades long latency of asbestos-related diseases, any deletion of defunct business records could impact on the ability of asbestos victims to track down negligent employers and access historic employers’ liability policies as explained by Graham Dring, Chair of the Asbestos Victims Support Groups Forum UK: “Asbestos victims face many hurdles when seeking legal redress for negligent exposure by a former employer. As disease typically develops decades after asbestos exposure (average of 35 years for mesothelioma), it is likely that the firm they worked for may have dissolved. Asbestos victims and their solicitors rely on records of dissolved companies held by Companies House to pursue a civil claim for compensation, for example in tracing the insurance company on cover at the time they were employed. These unnecessary proposals will result in access to justice being denied to many asbestos victims as well as victims of other industrial diseases.”16 Asbestos victim support groups, solicitors, politicians, trade unionists, journalists and representatives from the Serious Fraud Office and National Criminal Agency have all objected to the potential destruction of corporate files.17 A spokesperson for Companies House, David Griffiths, has however categorically stated that: “A document raising the possibility of dissolved company records being destroyed after 6 years rather than 20 years has not been issued…. Nothing will be done until the new Government carefully considers its options before deciding on the appropriate way forward.”18 Before she left for a fortnight summer break in Switzerland, Prime Minister Theresa May had been put on notice that this was a hot topic. In a letter to the PM Labor MP Tom Watson wrote: “You have said that you want to tackle corporate irresponsibility, reform capitalism ‘so that it works for everyone rather than for a privileged few…’ This proposal from Companies House would only serve to protect criminals who seek to hide their past corporate misdeeds from public view. It would harm the global fight against corruption and tax avoidance. It would also be an attack on the right of the public, the police and journalists to scrutinise corporate wrongdoing.”19 As MPs sharpen their pencils in preparation for the new Parliamentary session, civil society groups working with the asbestos-injured and others with industrial diseases will need to carefully consider options for progressing victims’ rights in post-Brexit Britain. On the agenda this autumn will also be discussions regarding the fate of a £5 million windfall for mesothelioma research announced in the March 2016 budget.20 Although widely welcomed, the initial news of this development was the subject of much speculation regarding the recipients and siting of the proposed National Mesothelioma Centre.21 On March 22, 2016, Professor Bill Cookson, Head of Respiratory Sciences, Imperial College addressed the annual seminar of the Parliamentary Asbestos Sub-Group which, this year, was devoted to only one subject: mesothelioma research.22 There was, as could reasonably be expected, confusion over the presentation which indicated that this money had all been earmarked for a consortium of London institutions led by Imperial College; calls were made for wider consultation. Issues related to the awarding of this grant were the subject for deliberation amongst delegates to the May 2016 meeting of the 13th International Mesothelioma Interest Group in Birmingham.23 Since then, some clarity of the state-of-play has been achieved. Following discussions with Professors Sir Anthony Newman-Taylor, Miriam Moffatt and Anne Bowcock on August 2, 2016 at Imperial College, the following facts have been established:
When asked on August 2nd about his hopes for the future Sir Anthony Newman-Taylor, who has decades of experience treating mesothelioma patients, spoke not of a cure but of the identification of “druggable targets,” the development of “effective treatments,” within five to ten years, repurposing of existing drugs for innovative therapies and changing the perception about mesothelioma research funding. While a cure for mesothelioma was, at present, “aspirational,” the ability to prolong life for five or more years for patients in their seventies, would, in many cases, allow them to die of some other cause. “The application of genomics,” could he said “revitalize mesothelioma research.” Imperial College researchers hope that the success of their targeted approach in unravelling the mystery of mesothelioma tumor growth will attract more funding to this area. While £5m appears an enormous amount compared to the scarcity of mesothelioma resources previously provided by central government, it is, in the scheme of cancer research, a relatively small sum. “The experience from other cancers,” wrote Professor Bill Cookson “tells us that to find new treatments the research spend should be as high as £5m a year. An integrated national programme with clear strategic goals and distributed responsibilities is the best way to achieve that goal.” Reports of discussions by members of the Imperial team with mesothelioma researchers, clinicians, scientists and victims’ representatives around the country over the last few months are grounds for guarded optimism. Even as further developments are awaited, efforts must continue to pioneer medical interventions and treatment strategies for mesothelioma patients. There are many other researchers as well as clinicians and outreach workers who could find good uses for LIBOR penalty funds. 2. Long Wait for Employment Records from HMRC is Denial of Access to Justice and Breach of ECHR By Roger Maddocks, Partner, Irwin Mitchell LLP Solicitors26 Asbestos-related diseases can be extremely serious for those affected. Even benign conditions such as pleural thickening can severely affect the quality of a victim’s life due to the severity of the symptoms and in many cases can cause premature death. Other malignant conditions such as mesothelioma or asbestos-related lung cancer all too often cause death and do so frequently within months of diagnosis. Those who develop asbestos-related diseases usually do so as a result of exposure to asbestos dust during their employment. They have the right to access justice to ensure that their former or current employers, who may have not done enough to protect them, are held to account; and to obtain the fair compensation to which they are entitled. In this connection it should be borne in mind that compensation is not a financial windfall, and money alone does not solve the problems faced by victims of mesothelioma (or other asbestos-related diseases). Compensation can, though, provide:
However, the process of taking legal action for many people who have developed asbestos-related diseases, and for families who have lost loved ones, is not as simple as it should be, as they, and their legal representatives are currently being forced to wait an excessive time for HM Revenues and Customs (HMRC) to provide employment records. Applications for such records on behalf of living claimants suffering from mesothelioma are fast-tracked by HMRC and are generally processed within a matter of weeks. But living claimants suffering from other asbestos-related diseases including terminal conditions, such as asbestos-related lung cancer, or dependents making posthumous mesothelioma claims are expected to wait over a year – as long as 14 months in some cases – for work records to be made available. Access to work history records kept by the HMRC is vital. Firstly, to correctly identify employers – all too often there are a number of companies with similar names. Secondly, to confirm dates of employment – vital if a company is no longer in business – so that the correct insurers on cover at the time when exposure took place can be identified. If records are not received in a timely manner it can prevent the identification of the correct defendants to commence court proceedings against before the expiry of the limitation period.27 Also, a victim may die before the records are available to facilitate completion of the investigation into his or her work history and history of exposure with every relevant employer. Many victims and families are unable to obtain compensation at the time they need it most; and in some cases are denied access to justice entirely. Clearly, these delays, which are severely, adversely affecting those who are desperate for answers about why, where, how and when they were exposed to the asbestos dust that caused their asbestos-related disease, need to be addressed. We are told by HMRC that the root cause of the delays is the decision to store employment data relating to periods prior to 1997 on microfiches, an obsolete technology. While retrieval of the microfiches is of necessity a time-consuming and labour intensive procedure, the main cause of the delays is, reportedly, a severe shortage of microfiche reading machines. The machines that are used are old and frequently breakdown. To date, HMRC has declined to explain what practical measures, if any, have been taken to try and solve the problem, and questions about the specification of the reader machines and what was being done to source additional machines have gone unanswered. We have been campaigning on the issue now for several months and have raised concerns with MPs of claimants affected for whom we are acting. We have also raised the matter with members of the Parliamentary Treasury and Justice Select Committees. At a meeting of the Treasury Select Committee on June 8, 2016 John Thompson, Chief Executive of the HMRC was asked about the issue. He gave evidence to the committee that difficulties occurred because the records were kept on microfiches up until the 1970s – which was incorrect, because storing records on microfiches continued until 1997, according to the information we have been given by Alison Hilton, Deputy Director at HMRC with overall responsibility for the record retrieval service. He also gave evidence that delays were also due to difficulty in accessing microfiche records going back to the 1940s and 1950s. This was also incorrect because work histories produced routinely by HMRC only go back to 1960/61 and we are regularly told by HMRC staff that records before that date are not available. We have seen correspondence from Alison Hilton recently which suggests that priority is now also being given to requests for records in connection with claims for other life threatening conditions, not only mesothelioma. However, this does not chime with our experience “on the ground.” Moreover, despite being asked to do so, HMRC has to date not provided a list of conditions in respect of which requests for records will be fast-tracked nor indicated how requests which are to be prioritised are to be “flagged up.” Clearly, transparency around the issue is desirable. Also, fast-tracking should not be limited to requests in connection with living victims; posthumous claims on behalf of bereaved families, who may well be suffering financial hardship as a result of the death of their loved ones, also deserve prioritisation. HMRC is an arm of government, one of whose responsibilities is to ensure that in respect of civil rights citizens can have a fair and public hearing to determine their rights within a reasonable time, consistent with Article 6 of the European Convention on Human Rights (ECHR). Delay in providing HMRC work histories is serving to delay determination of claims within a reasonable time and in some cases preventing fair determination of cases at all; in either case in contravention of the ECHR. It is time for the government to act and to do so without further delay. It needs to adequately resource this vital service and ensure that it operates in an open and transparent way. Developments Court of Appeal Decision: Small versus de Minimis Exposure A July 29, 2016 ruling by the Court of Appeal in the case of Albert Victor Carder v. The University of Exeter concluded that negligent behaviour by an employer which allowed even minimal exposure to asbestos which led to a former employee contracting asbestosis gave rise to an actionable case.28 Mr. Carder worked as an electrician in the boiler rooms at the university from 1980 to 1994. Commenting on the verdict, Mr. Carder said: “It’s a huge relief for this case to have finally settled and to also know that I can return to court, should my condition deteriorate, which is of great comfort to me and my family.” Overall damages for the total toxic exposure were assessed at £67,500 with the university’s contribution confirmed at £1,713. Ninety-seven per cent of the lifetime “dose” of asbestos Mr. Carder received was during employment by a firm called Colston Electrical Co. Ltd. which no longer exists. CAPE PLC CAPE PLC, which began life in the late 19th century as the Cape Asbestos Co. Ltd, announced on July 20, 2016 that it will increase its provision for industrial disease claims by £9.7 million following recent UK judgments. To date, Cape’s Court Approved Scheme of Arrangement, created in 2006, has paid out £30m+ to asbestos claimants and family members.29 A Tribute to Jeffrey Parsons Jeffrey Parsons, a Welsh specialist in asbestos litigation, died on April 10, 2016. Jeff was a committed advocate for asbestos victims, many of whom had experienced occupational exposures to asbestos at power stations, shipyards, railway works or industrial sites. Commenting on the sad news, one of his colleagues said “For many of us in South Wales, Jeff was synonymous with justice for those affected by asbestos… He worked tirelessly on behalf of those clients, always with a keen sense of justice.”30 In 2001, Jeff was instrumental in the formation of the Cardiff-based asbestos victims’ support group: Asbestos Awareness Wales. Throughout a career which lasted 35 years, he helped hundreds of claimants. In 2004, he detailed progress being made in expediting asbestos litigation in the Welsh courts in a presentation to the annual seminar of the Parliamentary Asbestos Sub-Group; unfortunately, he also reported that medical care for asbestos victims in Wales was “patchy and inconsistent” and there was “no process guaranteeing a minimum standard of medical care for sufferers.” He will be much missed. 31 Scottish Pleural Plaques Uplift On March 31, 2016, Lord Boyd of Duncansby issued the Court of Session’s verdict in the case of Roger Harris v The Advocate General which awarded the pursuer over £15,000 in full and final settlement of his claim for the development of pleural plaques. Mr. Harris had been exposed to asbestos whilst employed as a boilermaker with the Ministry of Defence between 1961 and 1977. The size of the damages was more than double the usual amount of compensation paid for this type of condition. “This decision,” said Mr. Harris’ solicitor, “recognises the importance of assessing each case subjectively, and shows the progress made by Scottish courts in recognising the distress caused by the presence of pleural plaques.”32
___________ 1 According to figures released by the Health and Safety Executive (HSE) in July 2016, in 2014 there were 2,515 mesothelioma deaths in Great Britain; the figures for 2012 and 2013 were respectively 2,549 and 2,556. 2 Hofmann-Prei K, Rehbock B. Early recognition of lung cancer in workers occupationally exposed to asbestos [Original paper in German]. August 8, 2016. 3 Harding AH, Darnton A, Osman J. Cardiovascular Disease Mortality Among British Asbestos Workers (1971-2005). April 2, 2012. 4 HSE. Mesothelioma in Great Britain: 1968 to 2014. July 6, 2016. 5 Kazan-Allen L. Action Mesothelioma Day 2016. July 6, 2016. 6 Asbestos Sub-Group of the All-Party Parliamentary Group on Occupational Safety and Health. The asbestos crisis. Why Britain needs an eradication law. 2015. 7 TUC. Asbestos – time to get rid of it! May 23, 2016. 8 JUAC. Health and Safety Rep Advice Sheet. Asbestos in Schools. July 2106. 9 STOP Playing with Cancer. July 27, 2015. 10 Shepherd J. Possible asbestos find at Perth Children's Hospital angers CFMEU. July 14, 2016. 11 UK Asbestos Alert: Update. August 15, 2016. 12 REACH: Registration, Evaluation, Authorisation & restriction of Chemicals. 13 HSE Response August 11, 2016. 14 Donnellan A. Asbestos investigation into Yuanda spreads to UK after Australian building projects contaminated. August 19, 2016. 15 Garside J. Companies House proposal to wipe data on dissolved firms sooner decried. August 2, 2016. 16 Letter by Graham Dring to Brian Landers, Companies House Chair, and Damian Green MP, Secretary of State for Work and Pensions, and Greg Clark MP, Secretary of State for Business, Energy and Industrial Strategy. August 5, 2016. 17 Robertson H. Changes to company records would be bad for workers. August 8, 2016. 18 Email from David Griffiths, Companies House, August 25, 2016. In his message, Griffiths provided a link to: 19 Siddique H. Labour urges PM to drop plans to delete company records. August 3, 2016. 20 Budget 2016. March 16, 2016.https://www.gov.uk/government/publications/budget-2016-documents/budget-2016 21 Kazan-Allen L. Mystery over the Multimillion Mesothelioma Grant. April 19, 2016. 22 Kazan-Allen L. Parliamentary Asbestos Seminar. March 23, 2016. 23 International Mesothelioma Interest Group. Book of Abstracts. May 2016. 24 LIBOR: London Interbank Offered Rate. 25 Cookson W. Cancer Genetics. June 2016. 26 The author has over 35 years’ experience acting for claimants suffering from a range of occupational respiratory diseases. He is a member of the Law Society’s Personal Injury Panel; a Fellow of the Association of Personal Injury Lawyers (APIL) and is accredited by APIL as both an asbestos disease specialist and an occupational disease specialist. 27 There is a time period – “the limitation period” – during which court proceedings must be commenced in claims of this nature. Failure to commence proceedings within the limitation period can result in a claim being time barred. For claims of this nature, usually the period is 3 years from the date when the victim knew that they were suffering from an asbestos-related condition or 3 years from their date of death if they died within 3 years of learning that they were suffering from an asbestos-related condition. However, the law in this area is complex and anyone suffering from an asbestos-related condition should seek advice from specialist solicitors without delay; even if they fear their claim may already be out of time. 28 Albert Victor Carder v. The University of Exeter. July 18, 2016. 29 CAPE PLC. Industrial Disease Claim – Litigation Update. July 20, 2016. 30 APIL newsletter. Tributes for renowned asbestos campaigner. July 2016. 31 Tributes to asbestos lawyer who helped hundreds in 35-year career. June 4, 2016.http://www.southwales-eveningpost.co.uk/tributes-asbestos-lawyer-helped-hundreds-35-year/story-29355387-detail/story.html 32 Harrison J. “Significant” judgement for asbestos-related cancer sufferers. April 1, 2016. ___________ Compiled by Laurie Kazan-Allen |