Issue 20 : Summer 1995
Table of Contents:
1. UK Lung Cancer Study
2. Asbestos Issues in Parliament
3. Collapse in T&N Profits
4. Benchmark Verdicts for Australian Asbestos Victims
5. UK Asbestos Verdicts
6. Media Coverage of Asbestos Issues
7. Books, Scientific Papers & Seminars
1. UK Lung Cancer Study
Asbestos victims in many countries, including England, Scotland and Australia, have faced great difficulties in obtaining compensation for asbestos-related lung cancer when this disease occurs in the absence of radiological or pathological evidence of lung fibrosis or diffuse pleural thickening. Before compensation will be paid for asbestos-related lung cancer under the UK Department of Social Security industrial injuries scheme, stringent criteria must be satisfied by those claiming occupational exposure. On average, only fifty-six such claims succeed in the UK each year; the 1993/94 Health & Safety Commission Statistics show the number of such awards as seventy-two.
Since September, 1992 research, "designed to test the hypothesis that the risk of lung cancer from asbestos exposure is confined to persons with radiographic evidence of pulmonary fibrosis" has been carried out at the Royal Brompton Hospital in London. The findings, eagerly awaited by asbestos victims' groups, appeared in The Lancet on April 29, 1995. Is Lung Cancer Associated With Asbestos Exposure When There Are No Small Opacities on the Chest Radiograph was written by P.Wilkinson, D.M.Hansell, J.Janssens, M.Rubens, R.M.Rudd, A.Newman Taylor and C.McDonald; it concludes that "asbestos is associated with lung cancer even in the absence of radiologically apparent pulmonary fibrosis."
It is of interest to note the finding that "construction and electrical work contributed most to excess of asbestos exposure in lung cancer cases, although insulation and foundry work were also important" in light of Professor Julian Peto's recent Lancet paper: Continuing Increase in Mesothelioma Mortality in Britain which stated that building workers, particularly plumbers, gas fitters, carpenters and electricians are expected to account for 24% of all mesothelioma fatalities in Britain.
Nigel Bryson, Director of Health & Environment for the General Municipal and Boilermakers Union (GMB), has a particular concern with these findings as his union represents many of the workers in the categories identified as "high risk" by the scientists. In the long-term the GMB is advocating a complete ban on all forms of asbestos; in the short-term the GMB wants to see a strict enforcement of the laws which exist to minimize asbestos exposure and the allocation of sufficient government funds to enable the Health & Safety Executive to operate effectively. The GMB has launched a national campaign to raise public awareness of the on-going problems arising from asbestos. In its pamphlet: Asbestos - It's Still a Killer the GMB advises members that "your employer or the main contractor in charge of the work being done is the person responsible for the health and safety of the workers and members of the public who could be at risk at work..."
In a letter to The Lancet (May 13), H. De Vos Irvine of the Department of Public Health in Glasgow suggests that there is a "need for a more thorough investigation of men with either mesothelioma or, more particularly, cancer of the bronchus, including a thorough occupational history inquiring about work involving construction, plumbing, joinery, painting, and building insulation." The authors of the April paper call on "those responsible for industrial hygiene and compensation of workers with asbestos-related lung disease" to study and act on the implications of the London research.
2. Asbestos Issues in Parliament
Prior to becoming Labour's spokesman for Northern Ireland, Tony Worthington, MP for Clydebank and Milngavie, played a prominent role in raising the profile of asbestos issues in the House of Commons. During the campaign to have the Compensation Recovery Unit banned, Worthington tabled an Early Day Motion, helped arrange the November meetings at the Commons and offered support to Clydeside Action on Asbestos, the Glasgow-based victims' group which spearheaded the Parliamentary lobby. On March 31, Worthington received official confirmation that "the recorded numbers of deaths from asbestos-related diseases continue to grow...The deaths now occurring, and most of those expected to occur in the future, reflect past industrial exposure before the introduction of the (current) controls..." On the same day, a written response from the office of the Secretary of State for Social Security announced that the government is conducting a review of the guidelines under which asbestos-related illnesses are currently defined as "prescribed diseases."
3. Collapse in T&N Profits
An extraordinary £140 million ($224 million) provision for asbestos-related disease claims has severely affected profit before tax and shareholders' dividends at T&N plc according to the Annual Report and Accounts (1994) which were published in April. Profit before taxation has fallen from £70.3 million (1993) to £10.7 million (1994). Asbestos-related costs for the year total £62.2 million (1993 £22 million) as detailed in note 19 of the accounts. The Board has restricted the dividend to 6p for 1995 stating that: "asbestos-related disease litigation costs and the associated cash outflows between 1994 and 1995 require appropriate action to conserve cash..." Colin Hope, Chairman and Chief Executive of T&N, claims that "charges for disease-related claims (will) decline progressively after 1996."
The quoted price for an ordinary share has fluctuated throughout the year from a low of £1.57 to a high of £2.60. The company, a major defendant in asbestos cases, had 433 asbestos-related personal injury cases pending in the UK and "numerous" similar actions pending before US courts at the end of December, 1994. Ten property damage claims in federal and state courts were also working their way through the legal system in four US jurisdictions.
4. Benchmark Verdicts for Australian Asbestos Victims
A verdict by the Appeal Division of the Supreme Court of Victoria (March 22) and another decision by the High Court (April 20) on an application for leave to appeal a decision of the Supreme Court of Western Australia (WA) have been hailed as milestones by campaigners for Australian asbestos victims. The case of Thomas Robert Bodsworth vs. the City of Nunawading was heard in Melbourne before Justices Brooking, Smith and Phillips and produced the first successful verdict for an office worker exposed to crumbling sprayed insulation. The other case confirmed an earlier award to the widow of Robert Culkin, a former smoker and CSR employee, who died of asbestos-related lung cancer.
Thomas Bodsworth worked as a health inspector for the Defendant for twenty-five years and was based at the Nunawading Civic Centre. When the center was built, the concrete ceiling had been sprayed with limpet asbestos. The Plaintiff, who was diagnosed with malignant mesothelioma at age sixty-one, alleged that "he was exposed to asbestos as a result of the deterioration and disturbance of the asbestos (amosite-containing) ceiling." In March, 1994 the first trial culminated with a A$150,000 (Australian dollars) verdict for the Plaintiff. Both parties appealed. In March, 1995 Justice Brooking found that "there was abundant medical evidence that on the version of events given by the appellant his condition of mesothelioma was due to his exposure to asbestos at the Civic Centre." Furthermore, the judge confirmed that the defendant municipality "was in breach of its duty of care to the appellant." The amount of damages was re-assessed and a figure of A$226,000 was awarded to the Plaintiff.
Following a judgement in the Culkin case by the Full Court of the Supreme Court of Western Australia in October, 1994, CSR sought special leave to appeal to the High Court. On April 21, 1995 "the High Court...found no basis on which leave to appeal the WA Supreme Court decision to the High Court could be granted." CSR, an industrial conglomerate, has been contesting payment of a A$34,000 award to Mrs. Culkin for five years. John Gordon, Mrs. Culkin's lawyer, said that CSR "should now realise that their case is not acceptable and pay compensation to others who have contracted lung cancer after being exposed to asbestos, regardless of their cigarette smoking." Gordon claimed that this decision would enable many other victims to obtain compensation; "what this case resolves is that if the asbestos can be said to make a contribution...to the cancer, then people will be entitled to compensation even if they have been exposed to another carcinogen, like cigarette smoking." Robert Vojakovic, President of the Asbestos Diseases Society of Australia, said that "the way is now clear for hundreds of lung cancer sufferers, or their next of kin, to pursue claims that asbestos contributed to their illness."
5. UK Asbestos Verdicts
Glasgow: Robert Myles, disabled after occupational exposure to asbestos, was awarded £114,153 compensation ($182,500) by Judge Lord Abernethy. Glasgow District Council, Myles' former employers, admitted liability for failing to provide protective equipment during the Plaintiff's employment as a slater's laborer from 1969-1990.
Warwick: The coroner recorded a verdict of "death due to industrial disease accelerated by exposure to asbestos" at an inquest into the death of William Parker, a former electrical installations engineer, who died at the age of 54.
London: In March, 1995 Sir Haydn Tudor Evans issued a High Court ruling in favor of the Plaintiff in a mesothelioma case brought against British Telecommunications plc. The judge found that a series of reports published between 1938 and the early 1950s had publicized the risks associated with the occupational use of asbestos and that a prudent employer should have been aware of these risks and taken reasonable steps to minimize exposure from the early 1950s.
Birmingham: The Central Midlands Co-operative Supermarket in Sheldon was closed down after health officers were notified that sprayed asbestos insulation had become friable and was being disturbed during refurbishment work in July, 1993. David Young, a defence lawyer, admitted that "the company did not know about the asbestos but should have anticipated that there might be a problem." A fine of £7,500 ($12,000) plus £1,354 costs was imposed by city magistrates.
Wolverhampton: Magistrates fined Rolls-Royce Nuclear Engineering Services £15,000 ($24,000) for "failing to ensure health and safety" by transporting asbestos waste in a dangerous manner. A fine of £8,000 ($13,000) was also set by Wolverhampton Magistrates Court on the owner of an empty factory in Bilston who caused environmental contamination by illegally removing asbestos from the property. The building contained fourteen tons of asbestos cement sheet; some of the asbestos used to coat the cement sheets was amosite. For £200 an unlicensed asbestos contractor was hired to remove some of the sheets; the residue asbestos was shot blasted and then dumped in garbage cans belonging to nearby residents by the site owner.
Stoke-on-Trent: An unlicensed building contractor was fined £1,500 ($2,400) for exposing demolition workers to levels of crocidolite and amosite up to 5000 times the control limit. No respiratory equipment, personal protective equipment, decontamination facilities or other safety precautions were provided over a period of several months.
South Ferriby: Although "every effort is being made to locate the perpetrator of this illegal...incident," Glanford council has been unable to identify those responsible for dumping one and a half tons of asbestos by the village pond in South Ferriby. A specialist contractor was called in by the local authority to remove the contaminated material which was found to be a mixture of amosite, crocidolite and chrysotile.
6. Media Coverage of Asbestos Issues
Building a Future Without Asbestos by Barry Castleman appeared in the Winter issue of New Solutions and was the text of a paper Dr. Castleman presented at the Sao Paulo conference in March, 1994. Castleman describes some of the measures pursued by international asbestos producers to protect their markets, limit their liabilities, dump "hazardous waste... in areas where local people are politically powerless" and produce "scientific" evidence that "chrysotile is a safe form of asbestos... fears about asbestos hazards are exaggerated... and opponents of asbestos are foreigners who really want to help their own countries' non-asbestos industries..."
Don't Inhale is the title of an article which appeared in The Economist magazine on March 25, 1995. Statistics for asbestos-related deaths in the US and UK are compared and reasons advanced for the hesitancy of British asbestos victims to sue for compensation. Findings from Dr. Thomas Durkin's doctoral dissertation: Constructing Law: Comparing Legal Action in the United States and United Kingdom are cited.
Asbestos Test Case Goes to the High Court was in the May 16, 1995 edition of The Legal Times. The background and significance of the June Marjorie Hancock vs. J W Roberts Ltd. and T&N plc case are described. This action arises from environmental asbestos exposure which, it is alleged, occurred from the 1930's in a residential area adjoining a former asbestos textile factory in the Armley area of Leeds. Adrian Budgen, a partner in the law firm which represents Mrs. Hancock, believes that the factory owners had knowledge of the dangers of asbestos far earlier than the mid-1950s, the date from which British courts currently date industry awareness. According to Budgen: "many of the people now suffering lived in the area as children and played in the streets surrounding the factory operated by T&N." The acceptance of this new category of non-employee plaintiffs by the court could open the way for hundreds of claims. Proceedings before Justice Christopher Holland are expected to begin on June 20; it is anticipated that the trial will last for six weeks.
The Day a Strange Snow Came Down on Birkenhead was published in the May 18, 1995 edition of The Independent newspaper. On September 22, 1994 a fire destroyed the British Leather tanning factory in New Chester Road, Birkenhead. Fragments of corrugated asbestos roof were dispersed into the gardens and streets of neighboring residential areas and no warnings were given by the property owner or the Wirral Borough Council for fourteen hours. During this time, the Plaintiffs allege, exposure to asbestos dust had taken place through sweeping-up operations, children's leisure activities and the pursuit of normal life. Over a thousand Birkenhead residents are now trying to claim compensation for respiratory problems and the possibility of contracting asbestos-related diseases in the future. A detailed investigation into this incident will be financed by legal aid; this is the first time that solicitors have secured funding to investigate asbestos environmental contamination in the UK.
7. Books, Scientific Papers & Seminars
Books:
Occupational Health Decennial Supplement (ISBN 0 11 691618 4) edited by Frances Drever and published (1995) by HMSO (£29/$50) is four hundred pages of statistics and commentary on occupational mortality data. The chapter entitled: Asbestos-related diseases highlights the "importance of exposures outside the obvious and easily recognised risk situations." Data shows that "insulation workers have suffered the highest raised risk for cancer...and particularly for mesothelioma and lung cancer... Maintenance and construction workers exhibit higher ratios for lung cancer in workers reportedly exposed only after 1970 than those exposed before." Death rates (1968-1991) in Britain for mesothelioma, asbestosis and lung cancer are analyzed by age, sex, occupation, industrial sector, smoking, latency period and year of first exposure. A short section on asbestos-related diseases is included in the chapter: Monitoring occupational diseases. The passage on asbestos-related lung cancer includes an admission that although "the numbers of excess lung cancers produced is greater than the number of mesotheliomas (among workers exposed to asbestos)" the few (72 in 1993) sufferers receiving disablement benefit for asbestos-related lung cancer indicates the high incidence of this disease that goes unrecognized.
Papers:
Pleural Malignant Mesothelioma and Non-occupational Exposure to Asbestos in Monferrato, Italy by Corrado Magnani et al appeared in volume 52 of Occupational and Environmental Medicine (1995). The objective of the research detailed in this paper was to measure the occurrence of this disease caused by environmental asbestos exposure. Despite the many difficulties in identifying and excluding cases due to occupational and domestic exposure, the authors conclude that "rate ratios which are four to six times those measured by conventional Italian cancer registries" require further study.
Seminars:
"A Struggle for Breath" was the title of a seminar which took place in Belfast on June 12. The principal objective of the day's presentations and workshops was to look at the problems posed to union members from work-related respiratory disorders, including asthma and asbestos-related diseases. Funded by the Health & Safety Agency for Northern Ireland, the day's events were organized by the Health & Safety Committee and the Irish Congress of Trade Unions. Asbestos victims in Northern Ireland are greatly disadvantaged by the lack of a local support network for sufferers; the possibility of establishing a victims-led group was discussed.
The third international Mesothelioma Conference will be held in Paris from September 13-15, 1995. Organized by the International Mesothelioma Interest Group, the conference is for scientists and clinicians interested in mesothelioma. Some of the topics listed for presentation are: the mechanism by which the disease progresses, its epidemiology, the role of immunotherapy and vaccination in treatment or prevention and pathology and early diagnosis. Information about this meeting can be obtained from Professor Bruce Robinson in Perth, Australia; fax: 619 346 2816/E-mail:bwsrobin@uniwa.uwa.edu.au
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Compiled by Laurie Kazan-Allen for the LKA Group*
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