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| ISSN 1470-8108 | Issue 106 | Winter-Spring 2017-18 |
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Contents:
1. Asbestos Life and Death in Brexit Britain: Part II 1. Asbestos Life and Death in Brexit Britain: Part II Figures just released by the National Audit Office1 confirm the inexorable rise of asbestos fatalities in England and Wales with hundreds of deaths in 2015 and 2016 in the South East, the East, the North West, the South West and Yorkshire and Humber.2 The largest increases between 2015 and 2016 were recorded in Cornwall, Brighton and Hove, South Tyneside and Swale.3 It is of interest that while the latest available HSE figure for annual mesothelioma deaths in Great Britain was 2,542 (in 2015), the total number of mesothelioma deaths in England and Wales reported by the Office of National Statistics (ONS) were 2,308 (2015) and 2,313 (2016). Considering the high incidence of asbestos-related deaths in Scotland, the 2016 ONS figures are indicative that mesothelioma mortality in Great Britain remains on an upward trajectory. Compounding the concerns over the ongoing epidemic are fears that a post-Brexit trade deal between the UK and the US could result in asbestos-containing products being imported into the country despite Britain’s asbestos ban. Expressing her reservations, Green Party co-leader Caroline Lucas said: “Theresa May is desperate to sign up to a trade deal with Donald Trump. Much of the likely cost of such a deal – like forcing chicken washed in chlorine and hormone-fed beef on to our shelves – are already known, but the risk we could see asbestos contaminated products come back on to the UK market is not. We all know Donald Trump does not take prisoners when it comes to trade deals. If he decides that asbestos-contaminated products must be included in a deal, he will not give way. US asbestos use has fallen dramatically, but there is still no national ban, and any asbestos poses a threat to human health.” 4 Despite Brexit Secretary David Davis’ pledge that Brexit would not result in a “Mad Max-style dystopia” of deregulation,5 UK trade union leaders remain unconvinced. Hugh Robertson, Senior Policy Officer for Health and Safety at the Trades Union Congress, said: “Generations of British workers have suffered ill health and premature deaths due to their occupational exposures to asbestos. Millions of tonnes of asbestos-containing products remain within the national infrastructure and despite strict health and safety protocols, toxic exposures remain a fact of life for many workers. We must ensure that, in the future, current protections are not only maintained but improved.” Commenting on the potential watering down of health and safety standards post Brexit, Graham Dring, Chair of the UK Forum of Asbestos Victims Support Groups (the Forum), said: “Just recently there has been a huge furore over the presence of asbestos in cosmetics sold by a US company for use by children. This month (March 2018), a US consumer watchdog found tremolite asbestos in three products sold by Claire’s, a national retailer – with international outlets – of cosmetics, jewellery and novelties for children and young adults. Last year, other Claire’s products were recalled in the US and Canada after tests showed asbestos contamination. As asbestos is not banned in the US, the sale of some asbestos-containing building and automotive products remains legal. The Forum’s view is that any new trade deals must not dilute current protections and allow products containing asbestos into the UK through the back door.”6 In February, 2018, the European Chemicals Agency reported that the results of tests undertaken in 2016 on 5,625 products by 29 European countries, including the UK, revealed that overall 18% failed to conform with EU regulations and that 14% of the products tested for asbestos were non-compliant.7 Anecdotal evidence and actions by the the Health and Safety Executive (HSE), the UK body responsible for the enforcement of workplace health and safety protocols, support the conclusion that the inflow of illegal asbestos goods into the country is not a rarity. On November 7, 2017, the HSE announced it was investigating reports that: “a small number of UK users… may have been supplied with [asbestos] contaminated shot-blasting material” by the Dutch Eurogrit company.8 Seven weeks later (on December 21, 2017), it was reported that the: “HSE has made enquiries with each of the duty holders who bought the materials in question. We are satisfied that the material will not be used in the UK and have nothing further to say on this issue, at this time.”9 Also in December 2017, the HSE issued an alert (Reference EFA/2017/006) over the use of asbestos-containing pipe gaskets (CNA 2000) put into circulation by a British engineering company between 2006 and 2010. The contaminated products were manufactured by G&H Engineering Services with material imported from China that had been sold as asbestos-free. According to an HSE letter dated October 30, 2017 efforts in 2011 to alert customers “may not have been fully circulated further down the supply chain.”10 In 2016, following a high-profile scandal regarding the illegal export of asbestos construction material from China to Australia by Yuanda Australia,11 the HSE mounted an investigation into the composition of material imported by Yuanda (UK) Co. Ltd. and the supply chain used for obtaining these products.12 On October 31, 2016, Hannah Doherty in the HSE’s Compliance Branch reported that the case review had been completed and that: “Given that no evidence has been found to indicate the presence of asbestos, and looking at all the available information in detail, it has been decided to close the investigation and take no further action. Of course, if in the future any new evidence indicating the presence of asbestos comes to light, we will investigate this in line with our producers.”13 No one knows how much of the 7 million tonnes of asbestos imported into the UK during the 20th century remains in place. With the world’s highest asbestos-related disease mortality rate14 and regulatory authorities facing brutal financial cutbacks, the last thing anyone wants is the import of more toxic material or a watering down of health and safety protections. Unfortunately, with so many uncertainties ahead and a desperate Tory government in charge, there are no guarantees. One thing, however, is clear: Britain’s asbestos epidemic will be with us for decades to come. 2. Achieving Justice for Mesothelioma Sufferers Progress has been made over recent months in the UK struggle for mesothelioma justice, with legal victories and increasing support for victims secured. At the forefront of the exertions required to achieve these successes has been the Asbestos Victims Support Groups Forum UK (the Forum),15 a national umbrella group representing local groups and partnering organizations in England, Scotland and Wales, various teams specializing in asbestos litigation, asbestos charities and trade unions. Sustained campaigning by the Forum was pivotal in spurring Parliament to establish a scheme to compensate mesothelioma victims negligently exposed to asbestos at work but unable to pursue civil claims because former employers no longer existed and former employers’ insurers could not be traced. The Diffuse Mesothelioma Payment Scheme (DMPS), which was launched in April 2014, began taking applications from July 2014. In the annual review published (November 2017) for the DMPS’s third year of operations (April 6, 2016 to April 5, 2017), it was reported that the scheme had paid out £31.4 million in compensation to 200 applicants with the average award being around £141,000, an increase from £135,000 the previous year. (Possibly, “average award” here means median award, since £141,000 does not represent an arithmetical average for the data quoted.) Since the scheme began, it has paid out £98 million compensation to over 760 mesothelioma sufferers.16 Another initiative undertaken by the Forum to secure the rights of mesothelioma and others with asbestos-related diseases resulted in a satisfactory outcome on December 5, 2017 when Master Victoria McCloud declared that historical documents detailing corporate knowledge regarding the asbestos hazard due to be destroyed as part of a confidential agreement between Cape Distribution Limited, other Cape subsidiaries and Concept 70 Limited must be preserved and shared with parties not involved in the original litigation.17Master McCloud’s judgment was the result of a High Court action brought by Mr. Graham Dring for and on behalf of the Asbestos Victims Support Groups Forum (UK) against Cape Distribution Limited, Cape Intermediate Holdings Limited, Concept 70 (and others). Commenting on the verdict, Mr. Dring said: “These documents could also shed light on the close relationship between the Factory Inspectorate, whose function was supposed to be protecting the health and safety of workers, and the asbestos industry that they were supposed to be regulating. We need to know how and why the biggest industrial disaster to hit this country, one that has not yet played out, was allowed to happen.” Clarifying the state-of-play as of March 19, 2018, Harminder Bains the Leigh Day solicitor who represented the Forum said: “Cape has permission to appeal. The High Court Judge said that due to the importance and uniqueness of the case, it should be ‘leapfrogged’ to the Court of Appeal and expedited. In summary, this means that it is too important an issue to be heard by one High Court Judge alone, and should be heard by the Court of Appeal which has three judges hearing each case. The reason for the expedition is because the judgment will affect current cases in the UK and abroad.” Two settlements achieved this year (2018) have afforded a level of security previously unavailable for mesothelioma patients as set out in agreements that provide payment by defendants for appropriate medical treatment unavailable on the NHS due to budgetary considerations or the novelty of the protocol. As a result of one such settlement negotiated by the firm of Fieldfisher LLP, 74-year old Pamela Stubberfield, who was diagnosed with sarcomatoid mesothelioma in 2016, has been receiving the immunotherapy drug Pembrolizumab.18 Since her treatment began, Mrs. Stubberfield’s tumours have reduced in size; she believes the treatment, which her consultant Dr. Peter Szlosare said was a “game changer” can “cure” her. In March, 2018 representation by Irwin Mitchell solicitors secured Yorkshireman James Casey, another mesothelioma sufferer, a settlement with his former employer – the North Eastern Gas Board – that will also cover the cost of medical care including treatments that have not yet been developed.19 It is noteworthy that, also in March 2018, a mesothelioma nursing specialist tasked with helping UK armed forces personnel and veterans affected by asbestos-related disease was appointed by the charity Mesothelioma UK supported by a Libor-funded Treasury grant.20 The new appointee was Southampton-based Helen Wilkes who will not only act as the primary clinical contact for Mesothelioma UK’s specialist armed forces information, advice and support service but also work as a benefits advisor for the Hampshire Asbestos Support & Awareness Group. Ms. Wilkes will liaise with personnel at the new Centre for Cancer Immunology, based at University Hospital Southampton, which is due to open this month (March 2018).21 Even as victories in the battle to improve conditions for mesothelioma sufferers are won, defendants and insurers continue to hone legal strategies for denying liability to the injured. An important hurdle was overcome with the Court of Appeal decision handed down in the case of Veronica Bussey v. Anglia Heating Ltd. on February 22, 2018.22 The law lords agreed that despite previous judgments the employer of David Edwin Anthony Bussey had been negligent for allowing relatively low level workplace asbestos exposures which had led to Mr. Bussey’s death from mesothelioma. The Court of Appeal unanimously allowed the appeal, with Lord Moylan writing: “the experts agree… that Mr Bussey’s employment with Anglia ‘would have post-dated knowledge of the risks of mesothelioma and that exposure to relatively small quantities of asbestos dust … was potentially harmful’. This provides strong support for the conclusion that the relevant risk of injury would have been reasonably foreseeable to Anglia.” 23 Barriers to improving the plight of asbestos disease sufferers include the lack of engagement by key political entities and determined efforts by defendants to escape their liabilities. The failure of the Scottish Government to prioritize the welfare of mesothelioma patients is all the more remarkable given that “Scotland has the highest global incidence of mesothelioma.”24 Unlike in England and Wales where mesothelioma treatment is subject to waiting time guarantees, such is not the case in Scotland where health boards have no mandates to audit the outcomes of mesothelioma treatments or develop specific services for those affected. Thanks to efforts by medical professionals, concerned MSPs, victims’ groups and stakeholding bodies such as Mesothelioma UK, things are poised to change. In a communication of March 22, 2018, Glasgow Physician Dr. Kevin Blyth explained the campaigners’ strategy: “Our minimum requirements are for mesothelioma to be treated as a ‘tracked’ cancer and for the collection of patient-level outcome data. Until the former is the case, and mesothelioma is subject to the same waiting times guarantees as other cancers, Scottish health boards are under no pressure to develop mesothelioma-centred services… We’ve been pressing Scottish government for a few years now and I think we have made some progress. Much of that is down to the support of Mesothelioma UK and the input of some fantastic patients and carers. A ‘snapshot’ audit of outcomes during 2018 has been initiated and we have been asked to develop Mesothelioma-specific Quality Performance Indicators, although we don’t yet have a commitment to implement these! We also have fantastically committed clinicians interested in mesothelioma across the country – and have developed a well functioning multidisciplinary team covering the West (where most of the cases are). That, however, is largely resourced via our research programme and lots of good will – plus support from Mesothelioma UK for our Clinical Nurse Specialist. We’re working hard with charity partners to extend coverage to the rest of Scotland.”25 That the intransigence of some defendants remains a very real obstacle to obtaining compensation for claimants is substantiated by comments made by one bereaved son whose 64-year old father died of asbestosis in 2016. Expressing his gratitude to the GMB trade union for its support, he urged other asbestos claimants and their families to persevere: "Unfortunately my dad passed away before this case was resolved but, in the end, it was successful. I just want to say to other families who may be going through this that no matter how hard it becomes or how hard the insurance companies make it, do not give up hope. Insurance companies can act in such a way to try and make you give up but don’t give up. Fight all the way.” 26 The “fight” for asbestos justice does not progress in a straight line; it is often a case of one step forward, two steps back. As documented in the paragraphs above, however, progress is being made thanks to the sustained efforts of civil society stakeholders. Just yesterday (March 21, 2018) a Supreme Court ruling was handed down which could have a wide ranging impact on personal injury law regarding an employer’s responsibility to protect their workforce from harm.27 According to Leigh Day Solicitor Harminder Bains, who was asked to take over the case after an adverse decision by the Court of Appeal: “In a nutshell, today’s ruling means that if an employer has been negligent and that negligence causes a physiological change in the body, and that change results in economic loss, an employee may be entitled to claim compensation, even though the physiological change is ‘symptomless’.”28 Although the case was about chemical and not asbestos exposure, the verdict does mention the country’s most widespread asbestos-related condition: pleural plaques, with the law lords writing: “This case is distinguishable from Rothwell v Chemical and Insulating Co Ltd. In that case, the pleural plaques the claimants developed were nothing more than a symptomless marker of exposure to asbestos dust and would not lead to or contribute to any condition which would produce symptoms, even with further exposure to asbestos dust. In this case, the Appellants’ sensitisation carries the risk of an allergic reaction in the event of further exposure to platinum salts and they must change their lives to avoid such exposure.” There is a substantial body of evidence which contradicts the statement that “pleural plaques… were nothing more than a symptomless marker of exposure to asbestos dust.” It would not take a terribly inventive legal team or group of politicians to leverage this judgment via the courts or Parliament to re-establish the status quo which allowed all UK pleural plaque claimants to obtain compensation for their injuries. After the 2007 House of Lords ruling in Rothwell v Chemical and Insulating Co Ltd., such conditions were ruled noncompensable in the UK; subsequent legislation overturned this inequity for victims in Scotland and Northern Ireland but not in England and Wales.29 Developments After feedback from unions and other stakeholders during consultations on changes to the Control of Asbestos Regulations, the Health and Safety Executive (HSE) has abandoned plans to reduce the period between medical examinations for asbestos-exposed workers. Commenting on the HSE U-turn, Garry Graham, deputy general secretary of Prospect Unions, said: “asbestos is a silent killer of thousands of workers every year. Frequent medical checks for those engaged in the dangerous removal of asbestos from old buildings is vital to pick up any symptoms as early as possible. We welcome the HSE seeing sense on this issue.”30 Events No Time to Lose The asbestos phase of the “No Time to Lose” campaign being run by The Institution of Occupational Safety and Health – “the world's biggest professional health and safety membership organisation” – is being launched on April 9, 2018. This the latest phase of the IOSH initiative to “get carcinogenic exposure issues more widely understood and help businesses take action.”31 Other focuses of this campaign have been the hazards of solar radiation and silica dust exposures. Action Mesothelioma Day 2018 On Friday, July 6, 2018 events, conferences, public rallies, memorial services and information sessions commemorating Action Mesothelioma Day 2018 will be held by asbestos victims’ groups, cancer charities and campaigning bodies throughout the UK. The theme for this year is raising awareness about the dangers of asbestos.32 For information on AMD 2018 events in your area, contact Graham Dring of the Asbestos Victims Support Groups Forum UK at: asbestos.mcr@gmail.com
___________ 1 Office of National Statistics. Mesothelioma deaths by local authority, England and Wales, registered between 2015 and 2016. March 5, 2018. 2 Kazan-Allen L. Asbestos Life and Death in Brexit Britain. Issue 105, Autumn 2017. British Asbestos Newsletter. 3 HSE. Health and Safety Statistics. November 1, 2017. 4 Buchan, L. Brexit: US trade deal could raise prospect of bringing asbestos products to UK, MP claims. March 11, 2018. 5Asthana A, Boffey D, Elgot J. David Davis: Brexit will not plunge Britain into ‘Mad Max dystopia.’ February 19, 2018. 6 Under Environmental Protection Agency (EPA) regulations, the use of asbestos remains legal in the US in: cement corrugated sheet, cement flat sheet, clothing, pipeline wrap, roofing felt, vinyl floor tile, cement shingle, millboard, cement pipe, automatic transmission components, clutch facings, friction materials, disk brake pads, drum brake linings, brake blocks, gaskets, non-roofing coatings and roof coatings. 7 European Chemicals Agency. Forum Ref-4 Project Report. Harmonised Enforcement Project on Restrictions. February 2018. 8 Email from Jack Rimmer, HSE to Laurie Kazan-Allen. November 7, 2017. 9 Email from Emma Deeny, HSE to Laurie Kazan-Allen. December 21, 2017. 10 Supply of CAN 2000 pipeline gaskets: presence of asbestos. December 7, 2017. 11 Burrell A. New cases for asbestos scare firm Yuanda. September 16, 2016. 12 Letter from the HSE to Mr. Dring and Ms. L. Kazan-Allen. August 16, 2016. 13 HSE. Letter to Ms. Kazan-Allen and Mr Dring. October 31, 2016. 14 GBD Risk Factors Collaborators. Global, regional, and national comparative risk assessment of 84 behavioural, environmental and occupational, and metabolic risks or clusters of risks, 1990–2016: a systematic analysis for the Global Burden of Disease Study 2016. September 16, 2017. 15 Asbestos Victims Support Groups Forum UK. About Us. 16 Diffuse Mesothelioma Payment Scheme: Annual review 2016 to 2017. November 30, 2017. 17 Judgment. Mr. Graham Dring for and on behalf of the Asbestos Victims Support Groups Forum (UK) against Cape Distribution Limited, Cape Intermediate Holdings Limited, Concept 70 (and others). December 5, 2017. 18 BOC pays woman’s asbestos-caused cancer treatment costs. January 26, 2018. 19 Landmark legal settlement after former engineer diagnosed with asbestos-related cancer. March 14, 2018.https://www.yorkshirepost.co.uk/news/landmark-legal-settlement-after-former-engineer-diagnosed-with-asbestos-related-cancer-1-9063695 20 Ford, S. First mesothelioma nurse to focus on armed forces and military patients, says charity. March 9, 2018. 21 Campaign to build new cancer research centre hits £25m target. February 1, 2018. 22 GMB Recovers Damages for Widow and Family Following Asbestos Exposure. March 16, 2018. 23 Court of Appeal Judgment: Veronica Bussey vs. 00654701 Limited (formerly Anglia Heating Limited). February 22, 2018. 24 Blyth K. The State of Mesothelioma Treatment in Scotland. Autumn Issue 2017. Mesothelioma UK Newsletter. 25 Email from Dr. Kevin Blyth to Laurie Kazan-Allen. March 22, 2018. 26 GMB Recovers Damages for Widow and Family Following Asbestos Exposure. March 16, 2018. 27 Dryden and others (Appellants) v Johnson Matthey Plc (Respondent) [2018] UKSC 18 On appeal from [2016] EWCA Civ 408. March 21, 2018. 28 Landmark legal case redefines personal injury law as three workers win damages against chemical company. March 21, 2018. 29 Kazan-Allen L. The End of UK Compensation for Pleural Plaques? Winter 2007-08 Issue. British Asbestos Newsletter. 30 Prospect. Plans to water down medical checks on asbestos workers abandoned. January 19, 2018. 31 Institution of Occupational and Safety Health (IOSH). No Time To Lose Campaign. 32 Derbyshire Asbestos Support Team. Action Mesothelioma Day 2018. January 2018. ___________ Compiled by Laurie Kazan-Allen |