British Asbestos Newsletter
BRITISH ASBESTOS NEWSLETTER
9 Tintagel Drive, Stanmore, Middx. HA7 4SR England
Issue 57: Winter 2004-2005
The global campaign to ban asbestos took a giant leap forward with the
success of the Global Asbestos Congress 2004 (GAC). The attendance in
Tokyo of representatives from 40 countries, the presence of distinguished
international speakers, the interest of Japanese, Belgian, Brazilian and
South African media teams and the continual discussions in hallways and
at social events were physical manifestations of an unquantifiable “buzz”
generated by bringing together so many people affected by asbestos. From
the comprehensive agenda to the bell ringing protocol to the identifying
white jackets worn by the scores of volunteers, the conference had been
expertly planned by the GAC Organizing Committee; since 2002, committee
members had worked assiduously to generate political backing and raise
funds for this landmark event, the first global conference to focus on
the repercussions of asbestos use in Asia.
More than 800 delegates attended plenary and workshop sessions held
between November 19-21, 2004. Presentations from leading asbestos experts
addressed a range of medical, legal, epidemiological, biochemical, environmental,
social and political issues; the simultaneous translation from English
and Japanese, available at all conference sessions, facilitated communication.
Representatives of international labor federations and hundreds of Asian
trade unionists were in attendance, underlining the growing awareness
of the toll being paid by building workers, in patricular, for hazardous
asbestos exposures. The presence of Japanese, Indian, Australian, Canadian,
American, Welsh and Northern Irish asbestos victims and family members
personalized a worldwide epidemic which is killing more than 100,000 people
every year. Members of the Japan Association of Mesothelioma and Asbestos-Related
Disease and their Families extended a warm welcome to all GAC delegates
from their booth on the 3rd floor of the conference centre; colorful chains
of paper cranes, a symbol of peace, which gaily decorated their stand
were presented to visitors in the hope that our mutual wish for an asbestos-free
future would become a reality. Japanese asbestos widows, dressed in traditional
kimonos, met other women from Europe, North America and Australia who
had also experienced the asbestos death of loved ones. Commenting on GAC
2004, June Brown, Chairperson of the Northern Irish group Justice for
Asbestos Victims (JAV), said:
“How can one sum up such an experience as the
Global Asbestos Congress 2004? What unity and encouragement to have met,
embraced and gelled with so many like-minded people. Asbestos knows no
boundaries, no race and no creed. Tokyo was proof of that.
Robbie Brown may just have been another name and
a fighter for JAV to some people but to me, his wife for 39 years, he
was my life-long husband, dearest and closest friend and a wonderful father
and grandfather. Reflecting on the Tokyo Congress, I remember the heartache
of the Japanese widows and the bond established through our mutual grief.
I am now more determined than ever to continue the campaign to end the
global injustice caused by asbestos not only in Robbie's memory but in
memory of all those who went out to do an honest day's work only to find
themselves, years later, fighting for every breath they took.
Well done to everyone who took part in the Congress:
the dedicated workers, the wonderful speakers and all who organized such
a tremendous event.”
At the GAC 2004, conversations took place which transcended subject
disciplines and national borders; Japanese asbestos victims spoke to Polish
technical experts, American doctors spoke to Asian trade unionists, European
lawyers and civil servants spoke to Japanese shipyard workers. While academic
and scientific presentations were made, the human dimension of the asbestos
tragedy was center-stage at all times. The asbestos victims' panel, which
was part of Plenary Session 3: Empowerment of Victims and Their
Families, was an enlightening and emotional event. The courage
and openness of the speakers was much-appreciated by GAC delegates who
rose to their feet to give the panel a standing ovation. The stunning
images in Akira Imai's photographic exhibition Asbestos or The Silent
Time Bomb: Message from the Victims left little doubt about the
heartbreaking impact asbestos has had in Japan. Entries to the visual
message competition displayed on the third floor illustrated the interest
of young people in Japan's asbestos epidemic. Poster presentations from
Northern Ireland, Wales, Croatia, Australia, Poland, Italy, U.S., Vietnam
and Pakistan described the efforts of researchers and activists to quantify
and assist the injured in their countries.
It was appropriate that the first multinational asbestos conference
on Asian issues took place in Tokyo. Japan, formerly one of the world's
biggest asbestos users, is paying a heavy price for its past. In recognition
of the devastation caused at home, the Japanese Government implemented
a virtual asbestos ban in October, 2004, becoming the first government
in Asia to take such decisive action. This decision, however, did not
occur in a vacuum but was the product of years of lobbying by asbestos
victims, parents of asbestos-exposed schoolchildren, medical specialists,
environmental and public health campaigners who had, over recent years,
worked more closely to develop effective ban asbestos strategies. The
strength of this network resides in its grass-root support; formerly isolated,
asbestos sufferers and their families have come together in small groups
throughout the country to support each other and mobilize their communities.
Kazunori Uekusa, Rinzo Uno, Norio Kato, Fumitoshi Saito, Mie Saito, Kazuko
Furukawa told GAC delegates of their own personal asbestos tragedies and
urged that a global asbestos ban be adopted to protect others from these
terrible diseases. GAC participants from Asian countries where there is
no effective regulation of hazardous asbestos exposures, no epidemiological
data on asbestos diseases and no social security or compensation for occupational
illnesses discussed their concerns. From the Bangladeshi and Pakistani
ship-breaking beaches, to the Korean asbestos textile factories to the
Chinese, Vietnamese and Thai asbestos-cement roofing industries, the Asian
asbestos hazard is growing exponentially; after three days of presentations
at the GAC, there is no doubt what the repercussions will be.
During the closing session of the conference, GAC Chairperson Dr. Yoshiomi
Temmyo presented The Tokyo Declaration; amongst its seven
points were a call for a global asbestos ban, the need for protection
from hazardous asbestos exposures, the right to prompt medical treatment
and equitable compensation. The Declaration, which was unanimously adopted,
concluded:
“International cooperation is essential! Active
participation of victims, workers, the public, policy makers, academics,
lawyers, trade unions, grass-roots organizations, relevant agencies and
interested groups is needed. Positive experiences of this cooperation
should be exchanged through existing and innovative networks.
Continual and global monitoring of developments in
all the categories above is vital for sustaining international action
toward an asbestos-free environment for all the human family. We can,
must and WILL make a change working together for the future.”
By the middle of the 21st century, a further 65,000 British lives will
be lost to mesothelioma; in a paper published on January 25, 2005, The
Expected Burden of Mesothelioma Mortality in Great Britain from 2002 to
2050, epidemiologists explained:
“The annual number of mesothelioma deaths in
Great Britain has risen increasingly rapidly from 153 deaths in 1968 to
1848 in 2001 and, using our preferred model, is predicted to decline rapidly…
Between 1968 and 2050, there will have been approximately 90,000 deaths
from mesothelioma in Great Britain, 65,000 of which will occur after 2001.”
Campaigners believe that 75% of cancer patients may suffer financial
hardship because of difficulty accessing benefits such as Disability Living
Allowance, Attendance Allowance, Carer's Allowance and income support;
announcing a “Better Deal Campaign” for patients, the Chief
Executive of Macmillan Cancer Relief, Peter Cardy, said last November:
“It is unacceptable that cancer patients should suffer the huge problem
of debt, poverty or financial hardship at a time when they are most vulnerable,
especially when help is available if they knew about it.”
On one day last October, Stewart Atkinson, the North Lincolnshire Coroner,
held three mesothelioma inquests in Scunthorpe. Despite evidence of occupational
asbestos exposure in every case, Atkinson only recorded a verdict of death
by industrial disease in the death of Anthony Bennett who had worked at
the Richard Dunston Shipyard in Hull; the atmosphere in which Mr. Bennett
painted pipes was “thick with (asbestos) dust.” Atkinson did
not accept that the deaths of Anne Rowson or Frank Rickell were due to
industrial diseases. A statement by Mrs. Rowson, who died in September,
2003, detailed asbestos exposure experienced when she cleaned “asbestos
roofs and walls coated with asbestos to keep in the heat,” at the
chicken farm where she worked in the 1970s. Mr. Rickell, who died in May,
2003, had worked on blast furnaces for British Steel. Atkinson commented:
“Just because someone worked at the plant, it does not necessarily
follow they came into contact with asbestos… He was not working in
an environment where I would expect him to come into contact with asbestos.”
According to first-hand evidence and reports by industrial historians,
it would be rare for someone working with UK blast furnaces or boilers
in the 1970s not to come into contact with asbestos. This fact was recognized
by the Industrial Injuries Advisory Council in 1996 in their document
Cm 3467, which broadened the list of occupations in which hazardous exposures
were considered likely:
“The widespread uses of asbestos mean that significant
asbestos exposure could occur in occupations not readily understood to
be covered by this list. For example, significant exposure to asbestos
could have occurred in the manufacture, assembly, repair, maintenance,
or use of machinery, equipment or plant requiring insulation (such as
that producing excessive heat or noise)…Cases of mesothelioma in
people who have worked in one of the occupations as an employed earner
could reasonably be attributed to this work without further enquiry: environmental
health officers, building inspectors… fishermen, deck and engine
room hands…chemical, gas and petroleum process plant foremen, operators
and labourers…manual occupations in the processing, making and repairing
of metals and metal and electrical goods, painters and decorators, assemblers
of metal and electrical goods… storekeepers, stevedores, warehouse,
market and other goods porters, boiler operators.
N.B. It is important to understand that not all workers
– nor even necessarily a majority of workers – in the individual
occupational groups listed will have been exposed to significant levels
of asbestos. However, cases of mesothelioma in individuals who have worked
in these occupations can be assumed, in the absence of convincing evidence
to the contrary, to be due to occupational asbestos exposure.”
Dr. Peter Dean, the Coroner for Greater Suffolk, also has a docket crowded
with mesothelioma inquests. On October 1, 2004, he recorded verdicts of
death by industrial disease for mesothelioma victims:
-
Alfred Bartlett, who died age 73 in June, 2004; Mr.
Bartlett had been employed building and repairing steam locomotives
for British Rail;
-
Arthur Harris, who died in September, 2004 age 83, had
been an electrician in the Royal Navy during which time he cut asbestos
pipe coverings;
-
Irene Smethurst-King had been employed in a cotton mill
and silk factory. Although there was no direct evidence of Mrs. King
having experienced occupational asbestos exposure, Dr. Dean said:
“On the balance of probably the fact is that we have a mesothelioma
and we have a disease that is caused more likely than not by asbestos
exposure.”
-
Harry Bywater, died in July, 2004 age 83; after the
Second World War, Mr. Bywater had built houses which contained asbestos
sheets, often sawing this material by hand;
-
William Wenlock, who died in May, 2004 age 91, was a
former tool setter. Mr. Winlock had worked in mines as a pit pony
driver and coalface worker; the presence of asbestos fibers found
during an autopsy was conclusive, the Coroner decided.
Bradford Coroner Roger Whittaker also takes a wider view of what constitutes
occupational exposure as evinced by a decision he made in January, 2005.
Whittaker issued a ruling of death by industrial disease in the case of
Janet Watson, a former hairdresser, who died of mesothelioma age 59, on
September 16, 2004; the Coroner accepted that Mrs. Watson had been exposed
to asbestos in hairdryers “which was therefore asbestos in the workplace.”
In recognition of the needs of tens of thousands of current and future
victims, a Mesothelioma Summit is being held in London on March 9, 2005.
Organization of this event has been spearheaded by the British Lung Foundation
(BLF) in collaboration with asbestos victims' groups, medical specialists,
solicitors and others. The summit will be opened by Professor Mike Richards,
National Clinical Director for Cancer; Dame Helena Shovelton, Chief Executive
of the BLF, will explain the charity's work with mesothelioma groups such
as the June Hancock Mesothelioma Research Fund and the Mick Knighton Research
Fund and its concern with the UK mesothelioma epidemic. It is hoped that
a Mesothelioma Charter, to be debated on the day, will form the basis
for a future action plan. While attendance is free of charge, spaces are
limited. If you wish to attend please contact Sue Knight at the BLF on
0207 688 5565 or by email:
Sue.Knight@blf-uk.org
The limited life expectancy of mesothelioma sufferers and delays in
the judicial process result in many compensation awards being made post-mortem.
Some jurisdictions have responded to this problem by setting up protocols
to streamline the processing of mesothelioma lawsuits. Since its inception
in 2002, the Queen's Bench Division's “fast track” for mesothelioma
claims, overseen by Master Steven Whitaker, has succeeded in reducing
litigation time and increasing the certainty of results. In 2002, procedures
were introduced in Scotland to speed-up the disposition of terminal cases.
On October 1, 2004, a Practice Note entitled Asbestos Induced Mesothelioma
Claims was implemented that allocates lawsuits to a dedicated
mesothelioma caseworker and adopts a strict timetable for accelerating
these claims through the Birmingham District Registry High Court and County
Court system. Plaintiffs' solicitors have reported attempts by defendants
to turn the new Birmingham procedures to their advantage by exploiting
legal loopholes so that awards for live mesothelioma claimants, who are
relatively young and have dependants, are worth less than those for surviving
family members.
Since the House of Lords upheld the right of UK mesothelioma victims
to sue negligent employers in 2002, defendants and insurers
have developed other legal strategies to evade asbestos-related liabilities.
A report by actuaries published in 2004 predicted up to 200,000 UK asbestos-related
claims over the next thirty years at a cost of £8-£20 billion ($15-$38
bn). As pleural plaques account for 75% of all asbestos
legal actions, it was inevitable that an attempt would be made to curtail
this category of claim. On February 15, 2005, a crucial High Court judgment
was handed down by Mr. Justice Holland in a test case brought by ten plaintiffs
with asymptomatic pleural plaques. There is no doubt about the importance
of this ruling. As the hearings began last November, Colin Ettinger, President
of the Association of Personal Injury Lawyers, condemned the “cynical
attempt” by the insurance industry to “wriggle out” of
paying fair compensation saying:
“for years and years they did nothing to set
premiums at the right level, even though they were fully aware of the
dangers of asbestos and the consequences of exposure.”
In Scotland, defendants' litigator Lex Dowie was maintaining a watching
brief: “This could be one of the biggest cases of the decade, with
consequences reaching far into the future. Test cases just like it are
being prepared in Scotland.” Dowie warned:
“It will be more difficult in future to provide
proper full compensation to those suffering from mesothelioma if the pool
of funds available for that purpose continues to be drained by claims
by people who may genuinely be worried about the possible future consequences
of their past exposure to asbestos, but are otherwise well.”
Justice Holland was unconvinced by this and other defence arguments
which maintained that pleural plaques were medically irrelevant; this
attempt to reverse twenty years of precedents that had provided thousands
of pleural plaque sufferers with provisional or final damages failed.
Sitting in Newcastle, Justice Holland awarded damages against ten defendants,
including British Shipbuilders, Norwich Union and Zurich
Insurance, to claimants ranging from 56 to 68 years old who had experienced
negligent asbestos exposures during employment in shipbuilding, construction,
thermal insulation, shopfitting and the civil service. Justice Holland
explained that the actionability of pleural plaque claims was dependent
on the following:
(1) the nature, extent and dating of the initial exposure to asbestos
with inferred ingestion;
(2) a resultant penetration of the chest by asbestos fibres (now evidenced
or capable of being evidenced by the fact of pleural plaques) that is
permanent, that is, such that has not been removed or neutralised by the
natural defences of the body and that remains for life as a possible catalyst
for the onset of one or more symptomatic diseases;
(3) physiological damage as encompassed by (2);
(4) risks as now assessable as to the future onset of symptomatic diseases;
and
(5) present and prospective suffering or loss of amenity represented
by anxiety engendered by the foregoing.
Responding to a submission by Mr. Bueno QC, Justice Holland clarified
his opinion as follows:
“I do not hold that simple penetration by asbestos
fibres constitutes an injury and thus an 'entry point' for the purpose
of a compensation claim…I do hold that penetration by asbestos as
has resulted in, and is evidenced by pleural plaques does amount to an
injury and thus provides an 'entry point', given the accompanying 'package'
of now practicable risk assessments and resultant anxiety.”
Solicitor Ian McFall of Thompsons Solicitors, who represented two of
the claimants, said “This judgment is a victory for our clients and
everyone else who has a similar claim. The High Court has reaffirmed the
right to compensation for pleural plaques. It has held that our clients
have suffered injury and that the negligent employers and their insurers
must pay damages. This is good law, which puts people before profits.”
Solicitor Geraldine Coombs of John Pickering & Partners agreed: “It's
a victory, no doubt. It preserves a right to compensation. This is not
a case of opening the floodgates, it just ensures that people who have
acquired the condition can be compensated for what may occur.” Insurers
were taking solace from the fact that Holland cut the size of payouts
from £5,000-7,000 ($9,470-13,260) for provisional damages to £4,000 ($7,577)
and from £12,500-20,000 ($23,700-38,000) to £6,000-7,000 ($11,370-13,260)
for one-off final payments. An unnamed actuary told Reuters that the cut
in damages may discourage solicitors from taking on plaque cases which
are notoriously complex; the potential reduction in cases combined with
the decrease in their value could slash insurers' asbestos costs. Julian
Lowe, Chairman of the UK Asbestos Working Party at the Institute and Faculty
of Actuaries, hoped the reduction in payouts would deter “ambulance
chasers” from mobilizing claims. Throughout the hearings, defendants
complained about the growth of the UK “compensation culture”
and the use of “scan-vans,” mobile X-ray screening units, to
identify potential clients. Although disappointed with the reduction of
the awards, Amicus, the trade union which supported the High Court action,
was relieved that the right to sue had been preserved. According to Derek
Simpson, the Amicus General Secretary, the judgement would affect about
14,000 cases a year. Pledging the union's commitment to these cases, he
said:
“Amicus and its lawyers will continue to ensure
that workers suffering from asbestos-related injuries due to the failure
of employers to protect them have the right to compensation. Amicus is
receiving hundreds of calls a week in response to the union stepping up
its campaign to compensate asbestos claims and fight the claims-handling
agency. The union has created a database detailing cases
of asbestos exposure. The database will be used to ensure union members
suffering from asbestos-related diseases have a better chance of winning
their legal case than other claimants do.”
Norwich Union and Zurich are considering an appeal.
Three weeks before Justice Holland issued his verdict, the Court of
Appeal reversed another High Court decision, thereby depriving the surviving
family of mesothelioma victim Teresa Maguire of an £82,000 ($155,325)
court award. According to Christine Maguire, Teresa's daughter, the compensation
would have “transformed the last few months” of her mother's
life. But defendant Harland & Wolff, the former employer of Mrs. Maguire's
boilermaker husband, chose to appeal Mr. Justice Morland's decision and
the extra comforts this compensation might have bought Mrs. Maguire were
not forthcoming. On March 26, 2004, Justice Morland had ruled that during
the period 1961-1965 shipyard employers such as Harland & Wolff could
have foreseen the hazards posed by asbestos-contaminated work clothes
brought into domestic environments citing the 1930 Merewether and Price
publication: Report on the effects of Asbestos Dust on the Lungs
and Dust Suppression in the Asbestos Industry; furthermore, Morland
found, the defendant could have taken simple precautions such as providing
changing rooms, showering facilities and laundry arrangements at work
which would have ensured that Mr. Maguire returned home without wearing
dust-infested clothing. For these reasons, Morland recorded, Harland &
Wolff were liable for Mrs. Maguire's illness.
On January 26, 2005, the Court of Appeal reversed Morland's decision.
In their judgment Lord Justices Judge, Mance and Longmore relied on the
1988 decision in Gunn v Wallsend Slipway and Engineering Company Ltd.
which concluded:
“The reality of the matter is that…no-one
in the industrial world before October 1965 directed his or her mind to
the risk of physical injury from domestic exposure to asbestos dust, except
in what I will call 'the asbestos neighbourhood cases'… It is unlikely
that they (the defendants) would have become aware of the risk from domestic
exposure to asbestos dust before about the end of 1965.”
Although the Appeal Court Judges agreed that “Mr. Maguire personally
would have established negligence and breach of duty against Harland &
Wolff,” this breach of duty did not extend to his wife. In Mrs. Maguire's
statement she recalled:
“The only time when I have been exposed to asbestos
is from washing Jimmy's work clothes... The clothes were dirty and dusty…
The dust and fibres seemed to stick to the hand knitted socks and jumpers…
I brushed them (the clothes) with a little hand brush to get the worst
dust off…I breathed in the dust when I shook out his clothes…”
The consultant engineer who gave evidence on the extent of Mrs. Maguire's
exposure found:
“During this period, the claimant would have
been regularly exposed to asbestos fibres which were brought into the
family home by her husband…she would have been at least moderately
and sometimes heavily exposed to airborne asbestos fibres.”
Warning against the “wisdom of hindsight,” Lord Justices Judge
and Longmore were not convinced that pre-1965, the case had been made
that a prudent employer should have foreseen the risk of pulmonary injury
to family members. Even segments of the 1960 booklet: Toxic Substances
in Factory Atmospheres, which were critical to Morland's ruling,
were dismissed by the appeal judges who found that its recommendations
pertained to employees and not family members. Justice Judge concluded:
“In the absence of any evidence from any source
whatever of contemporaneous insight into familial risk, or any contemporaneous
suggestion that the possibility of such risks should be addressed, I am
unable to accept that by not later than 1960, and ahead of contemporary
understanding, Harland & Wolff should have appreciated that Mrs. Maguire
was at risk of pulmonary or other asbestos-related injury, and that their
failure to do so and to take appropriate precautions for her safety was
negligent.”
The minority opinion, as voiced by Lord Justice Mance, upheld the findings
of the lower court. Mance concluded:
“the appellants were behaving in disregard of
any responsible and recommended practices at the time in the way they
conducted themselves and allowed their operations to be conducted. There
was a great deal of loose dust, no extraction system at all and no warning
of any danger of contact with asbestos dust…The literature made clear
that the materialisation of the generalised risk to which asbestos dust
gave rise varied according to a host of factors, including individual
sensitivity. If one behaves irresponsibly, it may not be easy to foresee
precisely all the consequences, but injury to others like Mrs. Maguire
was in my view sufficiently foreseeable.”
Permission is being sought to appeal this decision to the House of Lords.
Compiled by Laurie Kazan-Allen
Jerome Consultants
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