Issue 23 : Spring 1996
Table of Contents:
1. New Technology
2. Mixed Futures for T&N plc
3. Compensation for Irish Ferry Officers
4. Compensation Recovery Unit
5. Imprisonment for Asbestos Contamination
6. UK Asbestos Imports
7. News Round-Up
1. New Technology
Over the last four years the subscription list of the British Asbestos Newsletter has grown to such an extent that the printing and distribution costs of the issues are becoming burdensome. Part of the newsletter's ethos is that information should be distributed free to the widest possible network; obviously the introduction of a subscription fee would subvert this objective. One option being explored is the use of the internet; this is an intriguing alternative not least because it would save on printing and distribution costs but also because of the speed of the system. Subscribers with no internet access could still receive the newsletter by mail but a minimal charge could be made to cover the direct costs. As time and circumstances change some of our subscribers may no longer have an interest in asbestos-related matters. We urge those of you who fall into this category to let us know so that our subscription list can be updated and our costs reduced. For those readers still involved in this area it would be very helpful if you could communicate your views on the changes discussed above and the relevance of the newsletter to your work.
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2. Mixed Futures for T&N plc
Although a negotiated settlement and a legal victory may signal the end of property damage claims against T&N plc in the US, fears of an escalation in personal injury cases continue to worry some British investment analysts. In December T&N, formerly the largest asbestos company in Britain, reached a favorable settlement with the Port Authority (PA) of New York and New Jersey, the body responsible for JFK, La Guardia and Newark airports and the World Trade Center. The PA had brought a $600m lawsuit against 37 defendants, including T&N, for asbestos contamination of municipal buildings. T&N's negotiated settlement of £6.5m was considerably lower than the initial claims for $50m. A bitter legal battle fought out in the New York courts ended on December 7, 1995 with a jury verdict for T&N. The Chase Manhattan Bank, N.A. had pursued claims in excess of $185m against the British defendant for "negligence, strict liability, fraud, restitution, indemnity, and public nuisance." T&N had been sued as the parent company of J.W.Roberts Co. Ltd, the firm whose fireproofing product, sprayed Limpet asbestos, was used in the construction of the bank's Manhattan headquarters. Some of the T&N documents obtained during the Chase discovery are now being used in another US property damage case; Alan Runyan, representing the plaintiffs in the case of Anderson Memorial Hospital vs. W.R.Grace & Co., says that the Chase documents will most definitely "enhance the chances for (his client's) success."
The six week trial in the Chase case was the culmination of eight years of legal motions, discovery proceedings and research which resulted in the acquisition of two million T&N documents many of which had previously been unseen by British solicitors and historians. Microfiches containing 250,000 of the T&N documents were deposited in the House of Commons library by John Battle, MP for Leeds West in 1994. The first occasion these documents were used in a British court was the Hancock and Margereson neighborhood exposure cases in 1995. David Jeremy, an academic from Manchester Metropolitan University, cites extracts from the T&N files in his 1995 paper: "Corporate Responses to the Emergent Recognition of a Health Hazard in the UK Asbestos Industry: The Case of Turner & Newall, 1920-1960." Jeremy concludes that T&N's corporate culture was fixed by the company's founders who "established the view that doctors' opinions and judgement should be challenged; that the interests of the company...were paramount; and that the appropriate defensive tactics were denial, a legalistic view of the situation and litigation."
In the area of asbestos-related personal injury claims, the future in both the US and UK is unclear. Eighty thousand plaintiffs in the US opted out of the Georgine settlement, a judicial scheme for the resolution of personal injury cases which is operated by the Center for Claims Resolution and which, defendants believe, will reduce their legal costs. The Georgine settlement is itself the subject of an appeal to the Philadelphia Federal Appeal Court. In England the full implications of the Hancock & Margereson judgment (issue 22) is yet to be revealed; former neighbors of another T&N factory are now considering legal action in Newcastle. Although T&N has appealed Mr. Justice Holland's verdict, Iron Trades, Britain's foremost employers' liability insurer, is weighing up new evidence against T&N. According to an Iron Trades spokesperson: "We have already involved T&N in some cases where it is alleged that an employee of one of the companies we insure has been exposed to asbestos being sprayed by T&N...There is also a possibility of claiming against T&N for cases that have already been settled by companies such as Swan Hunter and Craven Tasker." Colin Hope, T&N's Chief Executive, admits that "We do face a number of years of continued asbestos litigation, but it is becoming much more controlled."
3. Compensation for Irish Ferry Officers
On January 26, 1996 Mr Justice Johnson, sitting in the High Court in Dublin, found on behalf of eight plaintiffs in a private action brought against their former employer, the B&I Line plc. The personal injury lawsuit arose from occupational asbestos exposure experienced on-board the German-built M.V. Norrona, a car ferry which was chartered by B&I from the Smyril Line in 1989/90. Although asbestos removal operatives working for the firm of Leif Andersen wore protective clothing during decontamination work on-board in February, 1990, B&I's employees were given no protective equipment. Several tons of asbestos material were removed over a ten day period. Witnesses said that there "was (asbestos) dust everywhere...lying on the deck...on their clothing and hair." Once removed the asbestos waste was placed in ordinary black plastic rubbish sacks and dumped in an open skip on the car deck. The skips were removed from the ship under cover of darkness and unloaded at Pembroke, Wales.
Throughout the pleadings B&I maintained that the material removed had been an asbestos substitute. Bryan F. Fox, the Dublin-based solicitor who represented the plaintiffs on a "no foal-no fee basis," said: "The judge accepted that our clients, Mr. O'Byrne particularly, brought to the attention of Captain Duignan their concerns as to whether or not it was asbestos which was being removed. The judge further accepted that the Captain had then brought this concern to the attention of B&I's marine management and that subsequently the Captain had been told...that the substance was not asbestos but was an asbestos substitute." On the first morning of the trial, the defendants conceded that the material in question had been amosite (brown asbestos).
Sean O'Byrne, one of the plaintiffs, is pleased with the court's finding that the company "deliberately deceived the crew" about the nature of the contamination and is delighted with the circa £35,000 awarded to each of the eight claimants. Mr. O'Byrne's claim was based on the "shock and severe distress" caused by his exposure to asbestos; medical examinations have shown that currently he has no symptoms of an asbestos-related disease. Since this decision, 60 members of the Norrona crew and 170 semi-state and public sector employees have contacted the plaintiffs' solicitors. Justice Johnson also gave an order over for B&I to recover all sums paid out to the plaintiffs from the third parties: Smyril Line and Lief Andersen. B&I, which was purchased in 1995 by Irish Ferries, is currently seeking redress from the Faroe Islands registered Smyril Line in a London arbitration court.
There is no legal aid for the vast majority of civil cases in Ireland. In the series of actions headed by the O'Byrne case, the solicitor agreed to represent the plaintiffs for 10% of the judicial award; the percentage practice is now illegal in Ireland following laws enacted during 1995. Mr. Fox believes that a changeover to a fee-based system, which will require plaintiffs to pay a substantial retainer to solicitors, will prevent many claimants from obtaining legal redress.
4. Compensation Recovery Unit
Seven months after the Social Security Select Committee, chaired by Frank Field, condemned the operations of the Compensation Recovery Unit (CRU) as "revolting to the ordinary man's sense of justice," a Compliance Cost Assessment (CCA) has been published by the Secretary of State for Social Security. This report, produced by the London firm of Price Waterhouse, analyzes the cost implications for insurers and businesses in Britain of reforms put forward by the Select Committee in their Fourth Report. The changes mooted by Field's Committee included a new category of damages for recoverable benefits to 'ringfence' compensation for pain and suffering and the exemption of asbestos victims from benefit recoupment. According to the CAA the introduction of a separate head of damages would increase insurance claims by £0.9m-£5.2m annually; administrative costs to insurers associated with such a change would be £3m a year. Employers' Liability premiums would rise by 3.7%-5.6% while public liability insurance premiums would increase by 1.9%-3.9%. An annual rise on total insurance claims of £51m-£67m could be produced by the abolition of the Small Payments Limit while an exemption of asbestos-related claims from benefit recovery would reduce annual recoupment by £1.75m .
In a press release following the publication of the CCA, Peter Lilley, Secretary of State for Social Security, said: "The Government is concerned that some plaintiffs may not be receiving compensation that properly reflects the extent of their injuries and that the taxpayer, through the benefit system, may in some cases be subsidising the negligent party...The central objective of this Government is to have a Compensation Recovery scheme in place that is fair and is seen to be fair - to the plaintiff and the defendant, to business and the taxpayer."
Ian McKechnie, the Secretary of the Glasgow-based Victims' Group which led the Parliamentary lobby on the CRU in November, 1994, is "extremely disturbed that any recommended changes in the CRU are unlikely to have retrospective effect." The CCA will itself be the subject of consultation before the government decides on changes to the current Compensation Recovery Scheme which, since 1990, has recovered millions of pounds in state benefits from victims who have obtained sums exceeding £2,500 (US$4,000) through court actions.
5. Imprisonment for Asbestos Contamination
A three month custodial sentence handed down by the Bristol Crown Court on January 23 marked the first immediate imprisonment secured by the Health & Safety Executive for offences under Health and Safety legislation. Builder Roy Hill was jailed for five breaches of the Asbestos (Licensing) Regulations 1983 and the Control of Asbestos at Work Regulations 1987 and ordered to pay £4,000 costs for failing to prevent asbestos exposure to his employees, producing asbestos contamination by demolition work, neglecting to produce a plan of work and carrying out unlicensed work with asbestos. The charges arose from the use of an excavator during demolition work in 1994 at a disused Bristol factory; asbestos in roofing sheets and pipework lagging had been released through lack of care. Judge Rupert Bursell said that Hill had endangered the lives of workers, nearby residents and commuters. Dan Norris, the local councillor who represents the area in which the exposure took place, said "Local people won't know for 20 years or more whether they were victims of this man's irresponsibility." Five years ago, Hill had been fined £5,400 on nine charges of improper disposal of builders' waste. In April, 1995 city magistrates fined the Smart family, the owners of the building site, £28,000 (reduced to £5,000 on appeal) for failure to "comply with a notice ordering them to have the site cleared by specialists."
In a press statement issued on January 25 Ian McCartney, Employment spokesperson for the Labour party, announced the party's plans to "extend the powers of the Health and Safety Executive and sanctions against cowboy employers... These will include the new crime of corporate manslaughter.." McCartney drew attention to the fall of over 65% in the number of HSE inspectors' visits to asbestos removal companies between 1985 (2,709 visits) and 1994 (805 visits) and accused the Government of prevaricating on asbestos-related occupational risks.
6. UK Asbestos Imports
Between 1990 and 1994 more than £41m was spent on imports of asbestos and asbestos-containing materials into the UK. This figure was composed of £19,768,000 for natural asbestos and £21,645,000 for asbestos products according to figures compiled by the House of Commons library from data in the: "Overseas Trade Statistics (OTS)." An analysis of the statistics shows that 39% of the 58,687 total tonnage of natural asbestos imported was for the years 1993 & 1994; more asbestos fiber was imported in 1994 (11,467 tonnes) than in any other year since 1990 (16,022 tonnes). The 1993 figures for asbestos products were the largest for the period covered with 1,098 tonnes imported at a cost of £5,006,000, a rise of 37% compared to the 1990 figure.
These numbers must be viewed as gross underestimates as they exclude asbestos cement and asbestos friction materials. Traditionally asbestos has been used in significant amounts in cement building products such as corrugated sheet and cavity roof decking, vertical cladding, ridge cappings, barge boards and eaves fillers, drainage and sewage pipes and reinforced cements in the UK. Within the OTS data products containing asbestos-cement, cellulose fibre-cement or the like are aggregated under classification 66l.83; these include corrugated sheets, panels, tiles, sheets for roofing walls < 40 x 60 cm., tubes, pipes or pipe fittings and other articles. Friction materials for use in civil or other aircraft, including those containing asbestos, cellulose or other mineral substances, are grouped under classification 663.82 and are also excluded from the totals in paragraph 1.
7. News Round-Up
Seminars:
On November 27 a two-day asbestos removal seminar began in Brussels. Sponsored and organized by the British firm Asbestostrip Innovations Ltd., conference delegates heard presentations on EC asbestos directives, the reality of respirator performance and new methods of fiber suppression.
On February 27 "Managing Asbestos Materials in Workplace Buildings" was presented by Dr Stuart Bristow of the Health Policy Division of the Health and Safety Executive during the morning session of the Annual Safety and Health at Work Conference.
The eighth National Hazards Conference will be held between April 12th-14th at the University of Bradford; an asbestos workshop will be one of twenty workshops offered. A National Asbestos Conference, organized by the Construction Safety Campaign, is being planned for June 1 in Sheffield
Case Control Study:
A multicentric case control study on malignant mesothelioma and environmental asbestos exposure is being carried out in Belgium, Denmark, Italy, Spain and Switzerland. Funded by the EEC the semi-structured questionnaire, which is available upon request, includes sections on demographical data, residential (schools included) and occupational history, information on occupations of relatives and medical history. The questionnaire is available in English, Italian and Spanish.
Media and Literature:
A ten minute segment of the BBC 1 weekly television program Here & Now focused on the case of Hancock vs. T&N plc which is the subject of a High Court appeal scheduled for the end of March, 1996. Comments by the trial judge last October featured prominently; Mr. Justice Holland was highly critical of the behaviour of the Defendants saying that: "the conduct of the defense..(reflects) a wish to contest these claims by any means possible, legitimate or otherwise, so as to wear them (the plaintiffs) down by attrition."
The fourth edition of Asbestos: Medical and Legal Aspects by Barry I. Castleman will be published in April, 1996 by Aspen Law & Business Publishers. Since the first version appeared in 1984, Castleman's book has been recognized as the leading text in the field; the current issue has been updated to include information obtained during the discovery proceedings by Chase Manhattan attorneys at the Manchester headquarters of T&N.
The Asbestos Hazards Handbook, a London Hazards Centre publication, was launched at a London press conference in January. The paperback volume deals with a range of complicated issues in a straightforward manner. Although primarily written to "assist workers, residents and people in the community to protect themselves against the asbestos menace," the information presented is of general interest.
Accident Compensation and Asbestos-related Disease in New Zealand by Nick Wikeley and Bruce Corkill appeared in the September, 1995 issue of the Journal of Personal Injury Litigation. This article highlighted the "difficulties (within the accident compensation scheme) in accommodating victims of latent disease in New Zealand."
Occupational and Environmental Links to Mesothelioma Deaths Occurring in Leeds During 1971-1987 by L.Arblaster et al. appeared in volume 17 (1995) of the Journal of Public Health Medicine. Of 180 identified mesothelioma victims from the Armley area of Leeds, 74 per cent had either direct or indirect occupational exposure; in five cases "the possibility of environmental exposure could not be excluded." The authors conclude that: "the number of mesothelioma cases with no known exposure to asbestos via occupational or household contact routes points to the need for a further controlled study to estimate the risks of non-occupational asbestos exposure."
An English translation of the Polish paper: Role of Pulmonary Macrophages in Development of Pulmonary Fibrosis Induced by Asbestos Dust by E.Lewczuk and H.Owczarek is available from the Health & Safety Executive Translation Services.
Award:
On January 1, 1996 Mrs. Nancy Tait, founder and Secretary of the Society for the Prevention of Asbestosis and Industrial Diseases (SPAID), was awarded an M.B.E. in the New Year Honors List for services to Health and Safety. Mrs. Tait has been a stalwart campaigner for asbestos victims since the death of her husband from mesothelioma in 1968. In order to address other threats to health and safety such as those posed by repetitive strain injury, asthma and environmental pollution, SPAID evolved into the Occupational and Environmental Diseases Association (OEDA) in 1995.
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Compiled by Laurie Kazan-Allen for the LKA Group*
*LKA Group:
LKA Services Ltd.
Jerome Consultants