Issue 27: Spring 1997
Table of Contents:
1. Chrysotile: The Debate Continues
2. Expansion of UK Asbestos Litigation
3. Asbestos Meetings
4. T&N plc: News
5. Landmark Judgment in the Netherlands
6. News Round-up
Dedication
Margery Conway, beloved wife of Tom and Mother of Mark and Paul, died at the age of 49 from pleural mesothelioma. We would like to express our heartfelt sympathies to her family and friends.
1. Chrysotile: The Debate Continues
A scathing, personal attack on American researchers appeared in Volume 41, 1997 of The Annals of Occupational Hygiene, the official publication of the British Occupational Hygiene Society. The vituperative tone of the editorial which accompanied the cohort study by F. Liddell, A. McDonald and J. McDonald was reflected by its title: Magic, Menace, Myth and Malice. Tony Waldron, the Annals' editor at publication, did not let the fact that Liddell was one of the authors of the paper disqualify him from writing an editorial in which U.S. scientists are accused of "engendering widespread fibre-phobia" and carrying out "a campaign of intense malice... against the principal Quebec investigator." Tony Waldron resigned as editor of the Annals in April, 1997 after only two years in the position. When questioned about the principle of allowing an author to prepare his own editorial, the new editor commented: "Tony Waldron believed it was a good idea to publish controversial editorials to stimulate debate but the annals are reviewing this policy." Throughout his editorial, Liddell refers to the late Irving Selikoff and his Mount Sinai colleagues as The Lobby: "it is impossible to discern the motives of The Lobby." Liddell condemns the group's attitude as antisocial on the grounds that a world-wide ban on asbestos would deny developing countries the use of essential asbestos cement building products and pipes. Also criticized is the author of The New Yorker articles who is accused of participating in a high profile "campaign of personal abuse."
The article attached to Liddell's commentary: The 1891-1920 Birth Cohort of Quebec Chrysotile Miners and Millers: Development From 1904 and Mortality to 1992 concludes that: "exposure in this industry to less than 300 mpcf.y has been essentially innocuous, although there was a small risk of pneumoconiosis or mesothelioma. Higher exposures have, however, led to excesses, increasing with degree of exposure, of mortality from all causes..." In fact, 3% of the 1,104 deaths among men with exposures between 100 and 300 mpcf.y (million particles per cubic foot) were due to mesothelioma (13 deaths) or pneumoconiosis (19 deaths). Doubts have also been raised about the lack of reliable information on exposures. Estimations of individual exposures between 1904 and 1966 were based on dust measurements taken since 1944 expressed in mpcf.y. The article states that 300 mpcf.y is "equivalent to roughly 1000 (fibres/ml) x years - or, say, 10 years in the 1940s at 80 (fibres/ml)" but research in the 1970s detected a 100-fold variation in the ratio of particle to fiber counts in the mines. The surprising conclusion that prolonged exposure at 80 fibers/ml was "essentially innocuous" is therefore questionable. Although it is the usual practice for scientific papers to be peer-reviewed Trevor Ogden, the Annals' current editor, is unable to confirm whether or not this procedure was carried out in this instance.
In their paper: Chrysotile Asbestos is the Main Cause of Pleural Mesothelioma (American Journal of Industrial Medicine 30:252-266, 1996), A. Smith and C. Wright also question Liddell et al's conclusions. Having re-analysed some of the earlier Canadian data, Smith and Wright query the finding that the mesothelioma rate, especially in the high exposure groups, was higher in Thetford than in Asbestos. The 1996 paper investigates several issues of great importance including the potency of chrysotile in the causation of malignant pleural mesothelioma, the ability of inhaled asbestos fibers to translocate from the lungs to other organs, the role played by translocated chrysotile fibres in the induction of malignant mesothelioma and/or hyaline plaques and the relative virtues of pleural content and lung tissue studies in cases of asbestos-related pleural mesotheliomas. The authors conclude that: "chrysotile asbestos is by far the main contributor to pleural mesothelioma causation in the U.S. and other countries in which it has been the predominant fibre type. Crocidolite may be 2-4 times more potent, but there is no valid evidence that amosite is more potent than chrysotile."
2. Expansion of UK Asbestos Litigation
Asbestos-related actions in this country have traditionally been personal injury claims brought against employers. There have been indications recently that the categories of affected workers as well as the type and scope of claims are expanding. Three South African mineworkers with asbestosis are bringing claims before the English court against Cape plc, alleging that health and safety standards were not observed by the Cape subsidiary operating the Penge asbestos mine in the Transvaal. Richard Meeran, representing the plaintiffs, says that his clients are unable to bring actions in their own country because of restrictive workers' compensation regulations. He indicated that this ground-breaking case could pave the way for a series of similar actions by other plaintiffs previously involved in the mining, transporting and handling of South African asbestos for Cape and other British companies which had asbestos mining interests.
On February 13 a Court of Appeal decision resulted in the second award for damages against a company, Babcock Energy Ltd. (Babcock), for the death of Mr. Jameson. Prior to his death from mesothelioma in 1988, Jameson sued his former employer- Babcock- for exposing him to asbestos during the 1950's. On April 19, 1988 the claim was settled for £80,000. Although the exposure occurred in premises run by the Central Electricity Generating Board (CEGB), no action was brought against them at that time. After his death on April 24, Mr. Jameson's widow brought an action against the CEGB for a loss of dependency under the Fatal Accidents Act. The CEGB in turn used the Civil Liberty (Contribution) Act 1978 to bring Babcock into the action as a third party. The Court of Appeal concluded that Babcock could be held liable the second time around. This situation could occur in other mesothelioma claims.
Since 1995 UK courts have been widening individual and corporate responsibilities for occupational health and safety. A report entitled The Primary Duty? highlighted the increasing risk of litigation from third parties. Gareth Watkins, a solicitor with Nabarro Nathanson, surveyed more than one hundred UK companies and found that while employees were often adequately informed, there was a "distinct tailing-off of information being provided to sub-contractors, visitors, members of the public and the emergency services." Watkins lists a series of precedent-setting verdicts for injuries sustained by non-employees including the conviction of a UK company for corporate manslaughter, the immediate imprisonment of a company director for manslaughter and the conviction of an independent health & safety advisor. Last year a Bristol builder was jailed for three months and fined £4,000 for offences under Health & Safety legislation. The charges arose from unlicensed work with asbestos during the demolition of a factory which contained asbestos roofing and lagging.
Future asbestos litigation in the UK will involve employees as well as third parties and could well include a significant number of foreign workers. In addition, insurers may find themselves paying out twice for a small number of claims. An increasing willingness of courts to punish health & safety infringements by custodial sentences or heavy fines, should encourage employers to undertake comprehensive risk assessments. The drafting of a new European Commission directive imposing strict liability should provide an added incentive. Solicitor Frank Patterson believes that: "You may well find that even if you didn't know ... (that) what you were doing could be harmful, you will be held responsible in the future. What we hear from insurers is that people are far too blasé. Couple that with the willingness of the Environmental Agency to take action and you have a very serious situation."
3. Asbestos Meetings
Asbestos-related issues were raised at high-level meetings in Holland and England in March. An asbestos workshop featured prominently at The Sixth European Work Hazards Conference in Egmond aan Zee, Holland. During two days of meetings, delegates compared the legacy of asbestos use in EC member states, shared information about regulations, explored means to prevent the risks of asbestos technology being exported and discussed strategies for a European-wide campaign to ban asbestos. Through an interpreter, a Greek trade unionist told delegates that no asbestos regulations of any kind exist in Greece. A Spanish correspondent stated that although asbestos cement is still widely used, the country's leading producer of asbestos cement is changing over to non-asbestos substitutes. French delegates reported that the Canadian asbestos industry was preparing a formal complaint to the EC about the French asbestos ban. Delegates expressed their fears that although the import of asbestos is banned in Finland and Denmark, asbestos-containing products could enter these countries through the free flow of products in the EC. Workshop delegates agreed that more cross-border communication is needed. The organizers of the Dutch event have set up a website at http://www.geocities.com/rainforest/8803 to facilitate such communication. The Finnish Work Hazards Network has a website at: http://www.sci.fi/~sunkku.
Asbestos - A Growing Challenge was the title of a London conference sponsored jointly by the General Municipal and Boilermakers' Union (GMB) and Thompsons Solicitors. On March 18, a capacity audience of local government officers, solicitors, victims' representatives, union officials, health and safety workers and academics heard presentations which examined the asbestos legacy from a variety of angles including legal, medical, political and human. Robin Howie, President of the British Occupational Hygiene Society, explained why respirators cannot be relied on as a first-line defence for asbestos removal operatives. Howie called for more frequent and thorough inspections at asbestos removal sites and for a policy of rigorous prosecution of offending companies. A highlight of the morning session was a slide presentation by Dr. Greg Deleuil, a general practitioner from Western Australia. Dr. Deleuil, who works closely with The Asbestos Diseases Society of Australia, described the history of the Wittenoom blue asbestos mine and the effects it has had on the men, women and children who worked and lived in the town. During the afternoon session John Edmonds, General Secretary of the GMB, expressed his sense of outrage at the fatal consequences that asbestos use has had on working men and women. Edmonds discussed the GMB's current asbestos initiatives and commitment to a ban on the use of all asbestos products. Graham Allen, MP and Shadow Environment Minister Responsible for Health & Safety, called for a higher political priority for health and safety issues. Stricter enforcement of regulations was required; the number of prosecutions should be increased and higher fines imposed for infringements. Allen suggested that a new category of corporate manslaughter be introduced for negligent employers. He expressed his interest in following-up an earlier recommendation by solicitor Pauline Chandler that a central register of employers' liability insurers be set up. A national database of companies and their insurers could ease the burden on plaintiffs' representatives, reduce time-consuming research and cut legal costs.
4. T&N plc: News
Last November's decision by T&N to set aside £515 million for future asbestos-related disease claims contributed to a 1996 pre-tax loss of £388 million, down from £120 million profit in 1995. Asbestos-related payments were £65 million in 1996 compared to £56 million in 1995. It is interesting to note the company's statement that: "following the Court of Appeal's decision in relation to the Armley cases, settlement discussions are taking place in relation to a small number of similar claims. The likely financial effect of these cases is not material." The Spring, 1997 newsletter produced by the law firm which represented June Hancock, one of the two Armley plaintiffs, reports that: "Following the last hearing, in December, 1996, T&N agreed to settle eight of our 16 remaining Armley Environmental claims. Seven out of the eight were "category A" cases, that is people who as children played in the yards and loading bays around the factory. In addition, T&N also agreed to settle one of our 'Clock School' cases, where there was no evidence that the deceased had played any closer to the factory than the school playground, which was on the other side of the road from the factory. The remaining cases are still proceeding." Adrian Budgen, Mrs. Hancock's solicitor, has confirmed that in recent weeks the firm has been instructed in four more Armley environmental cases. Another cloud on T&N's horizon is the possibility of potential claims from former South African asbestos workers. Cases currently being pursued against Cape plc, a British company which had extensive African asbestos interests, could be the first of many similar actions according to Richard Meeran, the plaintiffs' solicitor.
5. Landmark Judgment in the Netherlands
The heirs of Levinus Abraham Cijsouw, a Dutch joiner who died from mesothelioma of the peritoneum, made legal history when they were awarded 150,000 Dutch Guilders ($75,800/£47,000) for emotional damages by the Court of Appeal in The Hague. On February 25, 1997 Judges Makkink, Schlingemann-Vermeulen and Groothius found that De Schelde, Mr. Cijsouw's employer from 1949-1967, had not taken adequate precautionary measures in light of what was known of the dangers of asbestos. According to the Court: "The measures that were required at the time and recommended in specialist literature were: limiting the use of asbestos as much as possible, purifying the air and issuing personal protective devices." Prior to this decision, Dutch courts had set the date of knowledge in mesothelioma cases at 1969, the year in which a thesis recognizing mesothelioma as a primary cancer was published in Holland by Dr. Stumphius. L.Charlier, the plaintiffs' legal representative, believes that this ruling sets an important precedent for asbestos victims. He says that "according to the Dutch court, employers should not have waited until there was enough Dutch information about the dangers of asbestos available. They should on the contrary have reached over Dutch borders, to for instance Great Britain, to get the necessary information about asbestos there. The Dutch court stated that there was plenty of information available during the period of time between 1949 and 1967. Dutch employers should have acted accordingly in taking precautionary measures." An appeal to the Supreme Court of Holland is being prepared.
6. News Round-up
Publications:
The Hazards of Asbestos (Rischio Amianto) edited by L.A.Vigorita was published in Milan in 1997. This five hundred page book examines several aspects of the Italian asbestos experience including legislation, enforcement, industrial relations, medical and biological factors.
Review of Fibre Toxicology by M.Meldrum was published in 1996 by the HSE. The author concludes that there are threshold limits of exposure below which asbestosis and asbestos-induced lung cancer do not occur; she also states that there are "very few cases of mesothelioma (which) can be reliably attributed to chrysotile." These findings depart radically from those of the World Health Organization Task Group For Chrysotile Asbestos, a panel of twelve international experts, which concluded that: "Exposure to chrysotile asbestos poses increased risks for asbestosis, lung cancer and mesothelioma in a dose dependent manner. No threshold has been identified for carcinogenic risks."
Work-related Lung Disease Surveillance Report 1996 by the National Institute for Occupational Safety and Health contains twenty pages of data on asbestosis in the U.S. Between 1968 and 1992 the number of deaths rose from 100 to 1,000 per year, with high incidences of mortality on both the East and West coasts.
Development and Validation of an Analytical Method to Determine the Amount of Asbestos in Soils and Loose Aggregates by L.S.T.Davies et al is an HSE research report which describes a new procedure for analyzing low concentrations in loose aggregates
Dust on the Street and Liability for Environmental Cancers by J. Steele and N. Wikeley was published in volume 60 of The Modern Law Review, 1997. The article examines the findings of the High Court and Court of Appeal in the first UK cases for environmental mesotheliomas. The authors contrast "the paternalism practised by the management of J.W.Roberts in earlier decades" with "the wish to contest these claims by any means possible, legitimate or otherwise, so as to wear them (the plaintiffs) down by attrition."
Routes of Asbestos Exposure and the Development of Mesothelioma in an English Region by D. Howel, L.Arblaster et al was in the May issue of The Occupational and Environmental Medicine Journal. The authors observed significantly "more subjects with occupational or paraoccupational exposure than expected from other studies." Their finding that residential exposure to asbestos accounted for 3% of identified cases was heavily qualified "because of the small number of suitable subjects."
Parliament:
On March 19, 1997 the Social Security (Recovery of Benefits) Act 1997 received the Royal Assent. This Bill will affect the net amount of compensation received by asbestos and other victims of industrial accident, disease or injury by 'ring-fencing' payments made for pain and suffering, by abolishing exemptions for awards under £2,500 and by forcing insurers to repay sums previously disbursed by the Department of Social Security.
May 16, 1997: Ten Members of Parliament filed an Early Day Motion supporting a ban on asbestos imports to the United Kingdom and the tightening of asbestos removal regulations. They also urged the government to "take a lead in pressing for a Europe-wide ban on the import of asbestos and asbestos products."
May 19, 1997: In a written reply to a Parliamentary question, Prime Minister Tony Blair expressed his government's determination to "deal effectively with the problems of asbestos... Negotiations are being renewed at EU level which are likely to lead to further widespread prohibitions on the supply of asbestos."
Events:
The Asbestos Related Diseases Association (South West Region) is holding an Asbestos Awareness Day on June 14 at the Plymouth College of Further Education.
Asbestos: Justice and Prevention is the title of a conference scheduled for June 18 in Nottingham. Organized jointly by the GMB and Thompsons Solicitors, the meeting will feature medical, legal, local government and asbestos removal specialists.
The 9th National Hazards Conference is scheduled for September 5-7 at the University of Bradford. Introductory and advanced asbestos workshops will be run.
Asbestos and the Protection of Building Finishing Workers is the title of a conference which will be held in Paris on November 6 and 7.
Appointments/Associations/Websites:
Lottery funding has enabled the Liverpool and District Victims of Asbestos Support Group to appoint a full-time asbestos worker on a three year contract as of May 5. John Flanagan "welcomes the opportunity to work in the Asbestos field as it is the major issue in health and safety at work today."
Hans-Horst Konkolewsky has been appointed Director of The European Agency for Safety and Health At Work (EASHW), a new EC body set up to improve communication among member states. EASHW's headquarters are at: Gran via 33, 48009 Bilboa, Spain. The UK representative is: Richard Lewis, HSE Information Centre, Broad Lane, Sheffield S3 7HQ/ e-mail: richard.lewis@hse.gov.uk
Association of Manufacturers Against Asbestos was formed in 1996 to "push for legislation banning importation and use of Chrysotile (white) asbestos throughout Europe and more widely."
Associao Brasileira dos Expostos ao Amianto, the anti-asbestos movement in Brazil, has set up a website at: http://www.telnet.com.br/~giannasi/ The website of the Italian group Associazione Esposti Amianto (Association Against Asbestos) is at: http://www/arpnet.it/~aea/
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Compiled by Laurie Kazan-Allen