Issue 22 : Winter 1996
Table of Contents:
1. Victory for British Asbestos Plaintiffs
2. France: A Call to Arms
3. Dust Sampling and Control
4. Literature 5. Asbestos Seminars & Meetings
1. Victory for British Asbestos Plaintiffs
A historic precedent has been set by a ruling of a High Court judge who accepted the link between environmental asbestos exposure decades ago and the occurrence of an asbestos-related disease in former neighbors of an asbestos textile factory. Three months after the trial ended Mr. Justice Holland handed down his judgment in two neighborhood exposure cases against J.W.Roberts Ltd., a fully-owned subsidiary of T&N plc. On October 27, 1995 Mrs. June Hancock and Mrs. Evelyn Margereson, the plaintiffs whose separate cases were heard in a joint trial before the Leeds High Court, were awarded damages of £65,000 and £50,000 respectively. The mesothelioma from which Mrs. Hancock and the late Mr. Margereson suffered was caused by exposure to asbestos over fifty years ago when they played within the environs of the three-story factory in Canal Road, Armley. As part of a group of neighborhood children both Mrs. Hancock and Mr. Margereson played in the vicinity of the factory's Aviary Road loading bay, a site on which bales of raw asbestos fiber and waste were often stored. One witness remembered playing hopscotch on the loading bay in the 1940's: "we frequently drew the hopscotch grid out in the dust...We also roller skated there... sometimes sacks were left out overnight. They were hessian sacks and they were full of a sort of fluffy dust. We could jump on the sacks when they were left out... I remember seeing grey blue coloured dust come out of them. If we jumped hard enough the sacks burst open. After sitting or bouncing on the sacks I remember being covered in dust."
The fifty-one page ruling discussed the topography of the area, the nature of local employment, domestic routines and living conditions, the history of J.W.Roberts Ltd., the structure and links between the various unit companies and T&N plc and operational aspects of the asbestos factory. Crude asbestos fiber was an essential raw ingredient in most of the manufacturing processes at the plant. Asbestos fibers, extracted from some parts of the factory by fans, were released into the atmosphere, dust escaped through open windows, doors and ventilation devices, employees left the factory covered in dust and bales of asbestos, temporarily stored on the loading bays, released fibers into the air. The judge was convinced that asbestos contamination of the residential area around the factory was extensive: "there is no doubt but that every process in varying degree gave off dust... there was at all material times, a substantial emission of dust from factory premises."
Mr. Justice Holland found that the Defendants owed the children a duty of care; "there was knowledge, sufficient to found reasonable foresight on the part of the Defendants, that children were particularly vulnerable to personal injury arising out of inhalation of asbestos dust...reasonably practicable steps were not taken to reduce or prevent inhalation of emitted asbestos dust." The judge established that the date of knowledge should be set at 1933 and the cases were decided on the basis of duty of care, breach of said duty and resulting personal injury.
In his comprehensive judgment 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 judge found that: "the Group had at all material times expertise in contemporaneous terms with respect to asbestos and the known hazards arising therefrom through the experience and knowledge of its Unit Companies."
The ruling has wide-ranging implications for other Armley residents as well as for people who lived in close proximity to other asbestos factories, such as those belonging to T&N in Clydebank, Scotland and to Cape Asbestos in East London and Hillingdon. Adrian Budgen, June Hancock's solicitor, has confirmed that he represents other Armley residents whose cases against J.W. Roberts Ltd. are now likely to proceed. John Pickering, the solicitor for Mrs. Margereson, is also acting for other local residents with claims against J.W.Roberts. It is estimated that between them the two law firms will be bringing suits on behalf of thirty to forty plaintiffs from this locale. The existence of mesothelioma clusters in other parts of the country suggests that it is likely lawsuits will be brought for environmental asbestos exposure in other places where asbestos was heavily used such as Glasgow and Portsmouth.
News of the verdict caused a 12p fall in T&N's share price, a reduction which sliced $110 million off the company's market value. Speaking about the judgment, a market analyst said: "it opens up a whole can of worms. T&N's liabilities become impossible to estimate and the shares become a complete gamble." A T&N press statement announced that an appeal was being considered; the company reiterated its assertion that it couldn't have known "so many years ago of the risks to individuals such as these plaintiffs."
2. France: A Call to Arms
France, the biggest consumer of asbestos in Western Europe and the fifth world-wide, has been notoriously slow in taking action to protect its citizens from the dangers of asbestos exposure. Asbestos bans and the adoption of strict abatement programs in neighboring countries have been ignored by the French government which has been accused of adopting an "ostrich asbestos policy." After mounting pressure from anti-asbestos groups and media attention, in September, 1995 Dr Elizabeth Hubert, the new Minister of Health and Health Insurance, announced government plans for a national survey of public buildings containing asbestos; the Minister promised that repairs would be undertaken immediately in the most urgent cases and within four years in all others. Denouncing the government and medical establishment for having failed to warn the public of the dangers of asbestos, she said: "We are discovering a problem that is not recent, that requires measures that should have been taken...and which obviously has been underestimated...."
According to an article in the British Medical Journal, nobody knows how many buildings in France contain asbestos. One informed guess puts the figure at between 6,000-12,000 for residential buildings alone. An initial list of 150 buildings has been compiled by anti-asbestos campaigners and submitted to the Minister for consideration. These buildings include: "two Paris universities, high-rise buildings in the modern Parisian suburb of La Defense, commercial malls, sports centres, churches and hospitals, and the Ministry of Youth and Sports." The total bill for decontaminating all asbestos-containing buildings in France could be more than $6 billion. Included in this figure is a sum of $39 million for decontamination work on Jussieu University, the biggest French building sprayed with asbestos and the headquarters of the Jussieu Anti-Asbestos Committee (Comite Anti-Amiante de Jussieu/CAAJ). As of September, 1995, sixteen cases of asbestos-related disease have been recorded among personnel from this institution.
The CAAJ is one of the four associations spear-heading the French anti-asbestos movement; the others are ALERT (l'Association pour l'Etude des Risques du Travail), FNATH (National Federation for Work Injured and Handicapped) and the League against Cancer. One of the objectives of the coalition is a "complete and definitive ban of asbestos in our country." A statement by Patrick Hermann, the French co-ordinator for the Ban Asbestos Network, defines the ultimate goal as being a "ban in all the world." In a document entitled: Economic Interests versus Public Health Policy the CAAJ alleged that the prime reason for the inactivity of the French government has been economic. According to this document the asbestos industry, acting through a Paris-based pressure group, has exploited the government's over-riding financial concerns to forestall steps which could have proved costly to the industry. The CPA (Comite Permanent Amiante), funded by the asbestos industry since 1982 to lobby for the "controlled use of asbestos," is coordinated by a public relations firm.
French researchers have forecast the occurrence of 3,000 asbestos-related deaths annually over the next thirty years. As in the British findings announced by Dr. Julian Peto last March, it is believed that the majority of French victims will have suffered sporadic occupational exposure as construction workers, plumbers, electricians, etc. The dangers from discontinuous exposure have focused the French scientists' attention on the need to re-assess the way in which air-borne asbestos levels are measured. They believe that traditional estimation of risks through linear extrapolation grossly underestimates the hazards of contamination caused by sprayed asbestos. One alternative, which emphasizes short and sporadic exposures, would be to analyze the "probability of peaks of pollution either due to a high level of human activity, or to minor works of maintenance." The later approach requires a thorough inspection of premises; low level asbestos pollution may be found initially where a more thorough search will reveal areas generating high peaks of dust. "Damaged asbestos sprayed areas which are within hand reach in some staircases of the Maison Des Sciences de l'Homme in Paris" show that statistical measurements can be rendered meaningless as an indicator of actual risk.
3. Dust Sampling and Control
Government-sponsored research into dust sampling methods and findings of inadequate performance of respiratory equipment have serious implications for British workers in occupations designated as being at high risk of exposure to asbestos. A pilot project, using a new method for passive dust sampling, was announced by the Health & Safety Executive (HSE) in September. Researchers aim to quantify the asbestos exposures of building and maintenance workers by using an easy to wear and cheap to produce badge which collects a continuous one-week dust sample. Although these sensors will help produce a picture of occupational exposure levels, they will not protect workers from short-term exposure. Nevertheless, used as an early warning system the samplers will provide information on current asbestos risks so that avoidance action can be taken.
Last June a worker removing sprayed limpet asbestos from the ceiling of the former Dewar Bottling Plant in Perth, Scotland was concerned by the presence of a white residue on the inside of the exhalation valve of the Sabre Phantom Positive Pressure Respirator he was using. HSE officials were notified and a number of masks were submitted to staff at the Institute of Occupational Medicine in Edinburgh for examination. Inspectors found that the design of the valve housing could allow debris, which appeared to be an amphibole asbestos, to fall into the housing and penetrate the rubber valve. Tests conducted in the presence of observers from the manufacturer, industry and the Perth contractors established that although: "the device satisfied the standard tests indicating that its performance was acceptable to HSE standards there was some doubt about its performance under conditions peculiar to the Perth site. No one was prepared to guarantee its absolute safety under these conditions."
Official HSE policy stipulates air management and wet suppression techniques to minimize fiber release and powered air-purifying respirators and personal protective clothing to protect asbestos removal workers. A reliance on respiratory protective equipment (RPE) as the first line of defence is unacceptable. A spokesperson for Protector Sabre, the company which manufactures the respirators, was critical of the stripping methods employed by the asbestos removal contractor stating that the "combination of powered chisels ...and grit blasting...generate unacceptably high dust levels..(and) high speed particles which can cause damage to respirator filters." Arthur Mullin, head of ACAD (Asbestos Control Abatement Division), agreed that stripping processes were the key to worker protection: "In conditions where dry removal without air management is the process, wet misting of the work area helps but RPE is liable to be overloaded and fail to provide adequate protection."
A feature article by Dr. Michael Huncharek appeared in the November issue of the European Journal of Cancer. Entitled: Genetic Factors in the Aetiology of Malignant Mesothelioma, the paper discusses the existing state of knowledge of the genetic basis of the disease and implications for the development of molecular biological tools and carcinogen-specific genetic markers. Based on the discovery of mesothelioma clusters among different family groups, the existence of a "cancer-prone genotype susceptible to the toxic effects of asbestos" is postulated. Dr. Huncharek concludes that some of the chromosomal abnormalities found in patients with malignant mesothelioma are non-random.
Differences in Occupational Mortality from Pleural Cancer, Peritoneal Cancer and Asbestosis by David Coggan et al appeared in a 1995 issue of Occupational And Environmental Medicine. According to Coggan: "the exposure- response relations for diseases related to asbestos are not all linear, and that risks of pleural mesothelioma may be underestimated by simple extrapolation from observations in cohorts with heavy exposure."
Several letters to the Editor have been printed following the publication of: Is Lung Cancer Associated with Asbestos Exposure When There are no Small Opacities on the Chest Radiograph in the April 29, 1995 issue of The Lancet. Hans Weill, Eric Johnson, William Weiss and Kevin Browne have criticized the design and procedures of the London research project, the choice of referents and control groups, the ways in which asbestos exposure was estimated and the methods used for radiographic assessment In the same issue of The Lancet (July 29, 1995) Corbett McDonald refutes these allegations stating that "our results provide sufficient evidence for rejecting or at least questioning the hypothesis that a cancer usually resulting from an interaction between asbestos fibres and cigarette smoke occurs only in the presence of small radiographic opacities."
Information for People with Mesothelioma and their Carers, compiled by Mavis Robinson, is a much needed and very welcome work. The twenty-four page pamphlet provides clear explanations of medical and biological terms, discusses procedures for obtaining compensation from the Department of Social Security and former employers and lists useful contact numbers.
Published by the TUC Registering Asbestos in Public Buildings is an eleven page report which advocates that owners of public buildings compile registers of all asbestos-containing properties. The report points out: "the situation is worst in schools in England and Wales where the state of school repairs, the devolution of management responsibilities and the nature of employment...have combined to produce a new asbestos epidemic."
The Grim Reaper appeared in the November 4th edition of The Economist magazine. This full-page article discusses the background to the recent High Court verdict in Leeds and its implications for T&N plc, the defendant in this case, and the British insurance industry.
Evaluation and Reduction of Risk in Buildings with Asbestos Sprayed Materials and Asbestos: Sprayed Buildings and A Cancer Epidemic are the English titles for two papers written (in French) by Henri Pezerat, a renowned French toxicologist in 1995. The first calls for the formulation of a European strategy to measure the risk of weak to moderate asbestos exposure which has been found to be "responsible for pleural pathologies (mesotheliomas, fibrosis) in non negligible numbers." The second includes a description of the three principle asbestos-related diseases, compares British and French mesothelioma mortality rates and forecasts, evaluates the risks to people living or working in asbestos-containing buildings and suggests ways of reducing these hazards. Pezerat condemns the French government for its inaction; he calls on the government to address these issues immediately and to adopt a structured and detailed approach to the problems which are the legacy of largely uncontrolled asbestos use in France.
5. Asbestos Seminars & Meetings
September: On the first day of the Building Pathology Conference '95 delegates heard a talk entitled: Legal and Health Implications of Empty Buildings. Introduced by Laurie Kazan-Allen, three speakers described their organizations' experiences: Arthur Mullin spoke for the contractors trade association TICA, Nigel Bryson, representing the GMB (General Municipal and Boilermaker's Union) discussed the union's viewpoint and a solicitor, Graham Ross, described an on-going case involving a fire in a disused factory which caused extensive asbestos pollution in Liverpool last year.
October: A one-day asbestos seminar attended by union health and safety representatives, members of local asbestos action groups, solicitors, asbestos victims and other interested parties was held at the Liverpool office of the GMB. Jim Marshall, from London headquarters, explained the union's efforts to combat the problems caused by asbestos and the union's current asbestos awareness campaign. Frank Hyland discussed the role of the Health and Safety Executive in enforcing asbestos regulations and codes of practice. Nancy Tait, the founder of the first English asbestos charity, described problems faced by plaintiffs in obtaining compensation from the government and employers while Laurie Kazan-Allen spoke about the evolution of the state of asbestos awareness and the wider ramifications of the international trade in asbestos.
On October 19 a lecture was given at the Llanelli town hall by Dr. Vernon Timbrell, formerly of the MRC Pneumoconiosis Unit, which addressed the escalation of asbestos-related deaths in Britain. The introduction to the subject included a discussion of the properties and disease-causing abilities of asbestos as well as the history of asbestos mining. Dr. Timbrell maintained that British attempts to control the hazards of asbestos exposure had been hampered for more than thirty years by the use of a faulty system of dust monitoring which ignored the role that smaller fibers play in the causation of disease.
November: A gathering in Hull to celebrate the posthumous honorary fellowship bestowed on Dick Jackson, a stalwart anti-asbestos campaigner who died from mesothelioma in 1994, heard speeches from Alan Dalton, trade union health & safety coordinator, James Wyatt, solicitor, Joan Ness, daughter of Dick Jackson and now head of the Hull Asbestos Action Group and others.
Compiled by Laurie Kazan-Allen for the LKA Group*
LKA Services Ltd.