Issue 24 : Summer 1996
Table of Contents:
1. Asbestos Scandal in Westminster
2. T&N plc: Recent Developments
3. Inadequate Performance of Respiratory Protective Equipment
4. Campaign for Ministry of Defence Asbestos Victims
5. News Round-Up
1. Asbestos Scandal in Westminster
Councillors of the flagship borough of Westminster, in which the House of Commons, Buckingham Palace and Scotland Yard are situated, exposed hundreds of tenants and workmen to asbestos in two west London tower blocks between 1968 and 1991. Hermes and Chantry Points in Harrow Road were riddled with amosite and chrysotile; potential sources of exposure included asbestos in public areas and within the flats themselves. Sprayed asbestos, typically containing 70% asbestos fiber, was present in the ceiling of the lift lobby on each floor of the two Paddington buildings; asbestos-containing products were in the boiler rooms, the lift motor rooms, the service ducts and elsewhere. The fan assisted central heating system efficiently circulated airborne fibers throughout the building. Asbestos was contained in internal walls, skirting boards, doors, partitions, panels and boards in heater cupboards, electric sockets and boxing around steel beams within each flat.
On January 24, 1996 a report entitled: Report of a documentary review into the use by Westminster City Council of Hermes and Chantry Points, Elgin Estate, Westminster for housing purposes, given the presence of asbestos materials, 1980-1991 was submitted to Westminster City Council (WCC) by John Barratt, an independent consultant and a former chief executive of Cambridgeshire County Council. The 642 page report, which was made public on March 25, had been commissioned in 1994 and was produced at a cost of £104,075. Barratt was highly critical of many aspects of WCC's operations and decision-making procedures which culminated in the failure to manage the asbestos in the Paddington blocks. He found that: "Despite the availability of the clearest advice and instructions to the contrary, those acting on behalf of a public body repeatedly took risks, for a variety of reasons, with the health of people who ought to have been entitled to assume that such risks were not being taken." WCC's primary motivation, according to Barratt, in accommodating homeless families in these blocks was political. Barratt concludes that the decision was "informally but powerfully taken by Chairmen, influenced by considerations of Party advantage... and that the use of delegated officer powers was a hypocritical smokescreen."
Discussion of this report was listed as item three on the agenda of the April 4, 1996 meeting of WCC's special housing committee; this part of the council proceedings was closed to the public. Twelve committee members reviewed Barratt's paper as well as the considerations of the Chief Executive and Director of Finance. While Barratt's report makes "very disturbing reading for anyone concerned about the observance of proper standards in the provision of public services" the summary, as presented to the housing committee, was so watered down as to be almost dismissive. It meekly concluded that: " (while) the City Council failed to manage the asbestos... independent medical advice obtained by the Council does, however, provide reassurance that this failure on the Council's part is likely to have minimal impact on the health of former occupants."
Following Barratt's report the council was widely criticized in local and national newspapers. Only weeks later, the report of the appointed auditor, John Magill, on WCC's accounts 1987/88 to 1994/95 revealed further wrong-doings by Westminster officials. Magill concluded that Council Officers and elected Members had been "guilty of wilful misconduct" in operating a scheme to sell council homes in the mid-1980's. The 2,000 page report is a damning condemnation of Council policies which were "unlawful, unauthorised, and to the detriment of the interests of local taxpayers." According to Magill "the decision to increase the number of designated sales (of council homes) and the selection of the properties designated for sale were influenced by... the electoral advantage of the majority party." On May 9 six Westminster officials were notified that they would be held jointly and severally liable for the financial loss of £31.6 million incurred by taxpayers. Appeals to the High Court have been lodged.
In the last few months, WCC has been attempting to counter the negative impact of the Barratt and Magill reports. The Council has set up procedures to trace former occupants of the asbestos-ridden blocks, opened up discussions with former residents, set up an asbestos working party to investigate procedures for dealing with asbestos in council properties, formulated and endorsed an asbestos health and safety policy statement, requested additional medical advice and prepared a new code of corporate governance. Despite these highly publicized moves, Jonathan Rosenberg, the co-ordinator of the housing association which took over, decontaminated and demolished the Paddington tower blocks, says: "There is still the very serious issue of the health risk to former residents and work people to be resolved. The council has relied on advice from the Public Health department which is misleading, inaccurate and seriously flawed."
2. T&N plc: Recent Developments
Legal and financial developments at T&N plc have cast shadows on the Manchester-based multi-national over the last six months. Following T&N's initial victory in the Chase Manhattan case last December (see issue 23), city analyst Robert Speed was advising clients to buy shares in the firm stating that "the market continues to over discount the stock... we expect T&N to discharge its (asbestos) liabilities comfortably within the £50m pa charge forecast by the management for 1995 and 1996. Thereafter, we forecast a rapid reduction in the level of annual provisioning as settlements fall in line with the Georgine cap...we expect the (Georgine) settlement to stand." At the same time, T&N's Chairman, Sir Colin Hope, announced: "We are in control of asbestos compensation which will soon reach the downhill slope and become yesterday's issue...We have survived an asbestos bill of £350m and our market cap should be far higher than £1bn."
Despite these reassurances, many investment analysts in London continued to question the company's vulnerability to asbestos claims. On March 5 T&N announced the sale of its construction and asbestos mining operations in Zimbabwe for £39m ($60m); last year, the subsidiary's asbestos activities yielded a pre-tax profit of £15.9m on sales of £78m. The sale, according to T&N, signalled the severance with its asbestos past. The next day, T&N attracted additional media interest with the publication of the results for the year ended December 31, 1995. Group sales rose by 8%; operating profit, before exceptional charges and asbestos-related costs, increased by 26% to £227m. Amid claims of "solid and sustained progress in all areas, " Hope announced: "I think we are coming over the hill. We have made provisions for asbestos-related charges of another £40 million to £50 million for 1996. By 1997, asbestos costs should begin to decline." Other developments during March were not so positive. A Scottish television documentary detailed the plight of individuals who allegedly contracted asbestos-related diseases from environmental contamination caused by the firm's asbestos factory in Dalmuir. During the last week of March, three judges in London heard the appeal in the Armley environmental exposure cases (see issue 22). In his attempt to have Mr. Justice Holland's ruling overturned T&N's barrister, William Woodward QC, compared breathing asbestos dust to buying lottery tickets. Woodward also categorized potential sources of contamination as "guilty" and "not guilty" dust. According to the draft judgment issued on April 2, "the submissions of Mr. Woodward...from time to time verged on the ingenuous by way of his interpretation of the facts." Far from restricting the original judgment, the appeal court pushed the date of knowledge even further back from that (1933) set by Mr. Justice Holland. Lord Justice Russell wrote: "The information which should have operated upon the Defendants corporate mind was in existence long before Mr. Margereson's birth date (1925)." Dismissing the appeal, the judgment concluded: "we are abundantly satisfied that the findings of the Judge as ultimately reflected in the judgment were essentially of fact. There is no warrant for interfering with those findings of fact." Permission to appeal to the House of Lords was refused.
Further bad news landed on T&N's doorstep in May; a Philadelphia court threw out the Georgine class action, the settlement which had helped streamline administrative procedures for US asbestos cases and cap T&N's future asbestos liabilities. The Third Circuit Court of Appeals' ruling cancelled the settlement and reinstated victims' rights to sue Center for Claims Resolution (CCR) members, barring any injunctions. American newspapers reported that this ruling would open the floodgates to tens of thousands of individual asbestos cases. In a news release issued on May 13, T&N warned that: "should the injunction cease, it seems likely that the number and cost of new US health-related claims filed against T&N may be greater than they would have been using only the Georgine procedures." These fears were reflected in the charges made for asbestos-related costs in the interim results for the six months ended June 30: "The directors have included a charge of £25m in the half year accounts equivalent to 50% of the anticipated charge for the full year based on the assumption that the Georgine Settlement arrangements remain in place. Should Georgine cease, the additional charge that could arise based on cases notified to date could be of the order of £50m." Attorneys representing the members of the CCR filed a petition for writ of certiorari with the US Supreme Court in August; an announcement on whether the Court will accept jurisdiction in this case is imminent.
News that Iron Trades, Britain's foremost employers' liability insurer, had issued writs against T&N to recover money previously paid out for 35 compensation claims appeared in The Sunday Business newspaper. Recently, the Sunday Times reported that T&N was hoping to "boost its flagging share price by taking out insurance that would cap its liability for compensation over asbestos-related diseases." Should this come to pass, T&N would be a prime take-over target. In addition to these problems, Sir Colin Hope returns to the boardroom this Autumn knowing that a decision on an equitable claim for restitution and indemnity in the Chase Manhattan Bank case remains outstanding. Oral arguments were heard on these issues during the Spring; it is in the judge's discretion to make a substantial award. A spokesman for Chase has confirmed that regardless of the outcome on these issues, the bank will apply for a retrial. What with that and the decision of the Supreme Court vis-à-vis jurisdiction in the Georgine Settlement, T&N board members must be holding their collective breaths.
3. Inadequate Performance of Respiratory Protective Equipment
Research commissioned by a government agency has confirmed that the level of protection achieved by respiratory protective equipment (RPE) in 'real-life' asbestos removal situations is way below that measured in standard laboratory tests. The scientists commissioned by the Health & Safety Executive (HSE) to observe conditions inside asbestos stripping enclosures and measure the workplace performance of full-facepiece respirators found that theoretical performance levels were at least fifty times higher than those actually achieved in the workplace. Repeated measurements of fiber concentrations in stripping enclosures at eleven sites showed that "full-facepiece powered high-efficiency respirators do not provide adequate protection for other than well conducted manual wet crocidolite or amosite strips and well conducted wet manual and power tools strips of chrysotile." The report entitled: Workplace Effectiveness of Respiratory Protective Equipment for Asbestos Removal Work by R .M. Howie et al was made public in June, 1996. The authors concluded that: facial dimensions, work rate and the likelihood of sweating affected the performance of powered respirators, dry stripping, the use of power tools and grit blasting elevated the ambient fiber concentration within enclosures to dangerous levels, sub-contractors were more likely to use inadequate respirators than were permanent employees, RPE used by operatives was often inadequately maintained and shoddy working practices were responsible for environmental contamination.
Following publication of this report, the HSE announced plans to issue new sets of guidance notes for: low-dust methods of asbestos removal and the selection, use and maintenance of RPE for asbestos removal. In the meantime, employers are being cautioned to suppress fiber creation at source through the use of wet removal methods, cut-and-wrap procedures, direct vacuuming and the avoidance of grit-blasting and power tools. HSE inspectors will now require method statements to include information on control measures for preventing heat stress in extreme working conditions. Consultation with industry groups on improvements in supervision and training is planned. The current issue of The Academy, a publication of the Thermal Insulation Contractor's Association, discusses the Howie report in articles by independent scientists, RPE manufacturers, technical and government experts. On November 19, the British Occupational Hygiene Society will be discussing asbestos removal operations at a London conference.
4. Campaign for Ministry of Defence Asbestos Victims
The campaign for equality of treatment for victims who were exposed to asbestos during military service has been making steady progress since it was reported in the Autumn, 1995 newsletter. The campaign, supported by the Evening Herald newspaper in Plymouth and backed by local people, politicians and trade unions, seeks to overturn the law which allows civilian workers but prohibits former service personnel from suing the Ministry of Defence (MOD) for occupational exposure to asbestos. On May 21, a conference was held in the House of Commons to focus attention and explore possible solutions to the problems of ex-servicemen. Organized by the Asbestos-Related Diseases Association with the backing of David Jamieson (MP for Plymouth-Devonport) and the support of the Association of Personal Injury Lawyers, the one-day meeting was attended by victims, their families, solicitors, barristers, victim support groups, politicians and journalists. There was cross-party agreement that the current situation was patently unfair. David Jamieson said: "There is a sense of profound injustice that men who were working in civilian organisations can claim compensation for exposure, but those in the military cannot." Paul Murphy MP promised that an incoming Labour government would "undertake a review of the whole problem facing asbestos-poisoned servicemen." Earl Howe, Under Secretary of State for Defence with responsibility for the Navy, claimed that: "ex-service asbestos victims are not disadvantaged when compared to civilian counterparts."
Following discussions held in the afternoon, thirty delegates decided to set up a working party of victims and professionals. This group met again on August 6 to consider the acquisition of charity status, the preparation of a mission statement and the technicalities of setting up a national umbrella group. Another meeting is planned for November 12.
5. News Round-Up
Seminars:
The General Municipal and Boilermakers Union (GMB) held asbestos seminars in Liverpool and Belfast to coincide with Asbestos Workplace Inspection Week April 29-May 3, 1996.
Asbestos and Asthma Claims: An Expensive Future? was the title of a seminar presented at the London offices of the law firm Dibb Lupton Broomhead. On May 14, 1996, William Evans warned a capacity audience of insurers, re-insurers and solicitors that: "Claims arising from the contraction of mesothelioma and lung cancer will continue to increase in number. They will arise largely from construction operations with tradesmen heavily involved."
A conference was held in Melbourne on May 15-16, 1996 to discuss the environmental, medical and legal ramifications of widespread asbestos usage in Australia. The following month the two-day National Scientific Symposium and Workshop on Asbestos-Related Diseases took place in Sydney; the focus of this meeting was on medical and psychological methods of treatment and management of these diseases.
A one-day asbestos conference, organized by Clydeside Action on Asbestos and sponsored by two national unions and a leading firm of plaintiffs' solicitors, will be held in Glasgow on November 6. Platform speakers include representatives of the General Municipal and Boilermaker's Union, the Transport and General Union and the Health & Safety Executive as well as medical and legal experts.
Publications:
The Origin and Development of the Asbestos Threshold Limit Value: Scientific Indifference and Corporate Influence by D.S.Egilman and A.A.Reinert appeared in the International Journal of Health Services (Vol.25,No.4,667-696, 1995).
SWORD '94: Surveillance of Work-Related and Occupational Respiratory Disease in the UK by D.J.Ross, B.A.Sallie and J.C.McDonald appeared in Occupational Medicine (Vol.45,No.4,175-178, 1995).
Occupational Exposure to Chrysotile Asbestos and Cancer Risk: A Review of the Amphibole Hypothesis by L.T.Stayner, D.A.Dankovic and R.A.Lemen was published in the February, 1996 issue (Vol.86:179-186) of the American Journal of Public Health. The authors conclude that "it is prudent to treat chrysotile with virtually the same level as concern as the amphibole forms of asbestos."
The Non-Mobilization of Law: Asbestos Victims in the Netherlands by H. Vinke & T.Wilthagen examines the reasons, trends and implications of the "(near) non-occurrence of asbestos tort claims in the Netherlands" even though the incidence of mesothelioma in Holland is comparable to that in the UK and Italy. The authors find that "the nature of the Dutch social security system, characterized by high benefits in case of loss of income... has the effect of guaranteeing Dutch employees reasonable benefits in a non-confrontational way."
The fourth edition of Asbestos: Medical and Legal Aspects by Barry I. Castleman is available from Aspen Law & Business Publishers. This issue has been updated to include information which recently became available from the files of T&N plc, formerly the largest British asbestos company.
Asbestos Health Effects, Treatment and Control and Asbestos Health Risks were published in early, 1996 by the Michie Company. These books constitute volumes 11 & 12 respectively of the definitive textbook series: Sourcebook on Asbestos Diseases edited by G.A. & B.J. Peters.
Managing Asbestos in Workplace Buildings (ISBN 0717611795) is a Health & Safety Executive publication which warns building owners, managers and employers that "asbestos is likely to be present if the building was constructed or refurbished between 1950-1980."
The proceedings of the Irving J. Selikoff Scientific Conference on: "Updating the Epidemiology of Asbestos Disease" became available in March, 1996 in Volume 86, n.5 of La medicina del lavoro (ISSN 00257818).
A statistical bulletin entitled: Occupational Disease Enquiry 1994 Results was produced by the Association of British Insurers in April 1996; the percentage of asbestos-induced claims rose from 2.1% in 1990 to 3.6% in 1994.
Asbestos Abatement in the 1990s by Laurie Kazan-Allen was published in the July, 1996 issue of the The Occupational Health Review.
The Occupational and Environmental Diseases Association (OEDA), formerly known as SPAID, published the first issue of its quarterly newsletter: Summer, 1996.
Parliament:
A thirty minute adjournment debate on the plight of ex-service men suffering from asbestos-related diseases took place in the House of Commons on March 27, 1996.
On July 11, 1996 Harry Cohen MP secured an adjournment debate on several asbestos-related issues including: funding for council asbestos abatement projects, publicity to raise asbestos awareness and the shortage of health and safety inspectors.
Awards and Appointments:
Michael O'Connor, a Vice President of the Chase Manhattan Bank, received a Freedom of Information Award from the Campaign for Freedom of Information on March 25, 1996 for his "remarkable efforts to supply British victims of asbestos diseases with documents needed for their compensation claims."
Carol Amery was appointed Director of the Asbestos Control and Abatement Division (ACAD) of TICA in March, 1996.
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Compiled by Laurie Kazan-Allen for the LKA Group*
*LKA Group:
LKA Services Ltd.
Jerome Consultants