Issue 32: Autumn 1998
Table of Contents:
1. Closing the Net
2. Trends in UK Asbestos Personal Injury Litigation
1. Closing the Net
There are indications that bans on chrysotile will be adopted in the UK and European Union (EU) within the year. On September 17, the Health & Safety Commission (HSC) published Consultative Document CD140: Proposals for amendments to the Asbestos (Prohibitions) Regulations 1992 which set "out regulatory proposals to restrict further the importation, supply and use of chrysotile (white asbestos)." Accepting that "all forms of asbestos can cause asbestosis, lung cancer and mesothelioma ... (and that) no threshold has been identified below which there are no health risks from exposure to chrysotile asbestos fibre," the report cited findings by the Institute for Environment and Health and the Committee on Carcinogenicity to justify its decision to begin public consultations on a ban. Comments by Martin Bangemann, the Commissioner of DGIII, published during the Summer recess indicated that the EU was also inching towards a ban: "The Commission is... preparing a draft proposal for a European-wide ban on the marketing and use of chrysotile asbestos and asbestos-containing products." On September 16, a report by the chrysotile working group of the EU's Scientific Committee on Toxicity, Ecotoxicity and the Environment (SCTEE) concluded that asbestos substitutes were safer than chrysotile. An EU ban could be put in place through a Technical Progress Amendment to current legislation on the marketing of chrysotile (Directive 91/659/EEC), a step which is actively being promoted by trade unionists, victim support groups and Members of the European Parliament. Peter Skinner MEP, Chair of the European Parliament Asbestos Concern Group, welcomed the finding adding: "There is no more need for delay... I am urging the Commission to bring forward a ban immediately." In a letter to the European Asbestos Working Party, Bangemann confirmed that " Shortly after this (SCTEE) opinion is given, the Commission's Services plan to present to Member State experts a draft proposal for a European-wide ban on chrysotile asbestos (with some exceptions and temporary measures)."
Asbestos: The Hidden Killer
Monumental problems arising from the incorporation of asbestos within the European infrastructure will remain even when domestic and European prohibitions are achieved. The European Court of Justice is currently "closed down, evacuated, and (being) refurbished to remove all asbestos traces" as is the former European Commission headquarters in Brussels. On July 31, contractors began removing sheets of asbestos from the roof-space above the House of Commons chamber; decontamination of the committee corridor and other parts of the building is scheduled as part of a rolling refurbishment program. In the UK alone, six million tons of fiber have been imported over the last seventy years. Although a number of asbestos regulations exist to protect employees, contractors, residents and the general public, enforcement has been haphazard at best and "criminally negligent" at worst according to one British health and safety expert. At least three authorities are responsible for enforcing a variety of asbestos regulations; the demarcations between the Environment Agency of England and Wales (EA), the Health and Safety Executive (HSE) and local councils can be confusing. In April, 1996, the EA, the Scottish Protection Agency and the Environment and Heritage Service in Northern Ireland were created to "provide a modern legislative framework for dealing with the historic legacy of land contamination in the UK." Last year there were 345 successful EA waste prosecutions, including those for illegal disposal of asbestos, which resulted in average fines of £1813. In 1995-96, the HSE was successful with only 33 prosecutions for breaches of the Control of Asbestos at Work Regulations (CAWR; 1987) and 11 under the Asbestos (Licensing) Regulations (1983). Forty-seven prohibition and 140 improvement notices were served during this period; fines imposed by the courts averaged £1,180.
UK Prosecutions: HSE, EA and Local Authorities
A flurry of high-profile prosecutions this year suggests that a tougher stance on asbestos offences is being taken. Proceedings against contractors, councils, universities, hospitals and utilities have resulted in custodial sentences and fines over recent months. A businessman was jailed for three months by Stowmarket magistrates after admitting two charges of unlawful management of asbestos waste in December, 1997. His actions had resulted in the temporary closure of an ambulance station which had been contaminated by asbestos. In July, farmer John Hawksworth received a twenty-one month sentence after being found guilty at Sheffield Crown Court under section 33 of the Environmental Protection Act of depositing, keeping and burning waste on unlicensed land. Up to 7,000 tonnes of industrial waste, including asbestos, had been deposited on the site over the last two years. Decontamination of the site could cost £250,000; EA officer Ian Gilmour believes "It's very likely the Agency would have to pick up the tab." There was an increase of sixteen per cent in the number of pollution-related cases initiated by the EA during 1997/98. Roger Hyde, an agency executive from the North East, criticized the leniency of courts: "Fines of a few thousand pounds are no deterrent to big companies making multi-million pound profits... we will not tolerate polluters. But we need this tough approach to be matched by the courts. They have the powers but we are constantly disappointed at the low levels of fines imposed on those who have damaged the environment."
Illegal disposal and fly-tipping are endemic in Britain. On April 29, 1998 a Coventry firm admitted dumping fibrous asbestos at a landfill site which was only licensed to accept sheet asbestos. The fine of £2,844 received by County Waste Ltd. was similar to that imposed by Exeter Magistrates the following month on a roofing contractor who allowed his van to be used to dump asbestos waste in Stoke Hill Woods. Such practices are common; asbestos is routinely dumped in country lanes, cul-de-sacs and rivers to avoid paying disposal costs at specified landfill sites. Criminal gangs from Germany and Holland regard Britain as a "soft touch" suitable for use as a rubbish dump; lorries bringing toxic and asbestos waste into the country empty their cargoes onto British roads pretty much at will. According to an environmental crime specialist from Interpol UK: "British law enforcement in this area is not as high-profile as in other European countries, which all have specific police departments to deal with environmental crime. The criminals know that." Unscrupulous operators have found another ingenuous, albeit illegal, solution to the costly problem of asbestos waste disposal; asbestos-containing material is recycled, incorporated into building materials and hardcore and sold to builders and construction companies. Fears are growing that the introduction in 1996 of the landfill tax and the cavalier attitude of some in the building and demolition trades will further encourage these practices.
HSE inspectors have brought numerous prosecutions for asbestos infringements this year. In Walsall Magistrates Court M & G Environment Engineers was fined £5,400 after admitting three CAWR offences relating to the removal of crocidolite at a Bloxwich factory. An incident at Horton Hospital in Banbury resulted in charges against Tapper Installations Ltd., Horton Hospital NHS Trust and Fred G Alden Heating Ltd. after employees were exposed to asbestos during the installation of a new cooling system in October, 1996. An HSE inspector told Banbury Magistrates that the work in question "involved the removal of several hundred ceiling tiles which contained brown asbestos." Although the hospital had identified the asbestos material in the ceiling, this information was not shared with the contractors, Tapper Installations. The hospital was fined £5,000 for breaching Regulations 6(3), 10 and 11(1) of the Construction (Design and Management) Regulations (CDM) and ordered to pay £4,552 costs. Tapper Installations was fined £2,000 with £635 costs for two breaches of the CAWR. Although the firm of Fred G Alden Heating Ltd. was conditionally discharged for two years, it was ordered to pay £650 costs. In March, a fine of £5,000 was imposed on Drake and Scull Technical Services after Marlborough Street Magistrates Court ruled that temporary workers had been exposed to asbestos while removing boilers and oil tanks in the basement of a building in Saville Row, London. In the same month, six charges under the CAWR were admitted by a railway carriage works company in West Yorkshire. The firm of Bombadier Prorail had exposed 130 employees to asbestos during the refurbishment of Mark Two heavy rail passenger vehicles over an eighteen-month period. Wakefield Magistrates Court ordered penalties of £14,000 plus £15,650 costs. A £12,000 fine was imposed on the Liverpool firm of Harison and Clayton Industrial Insulations Ltd. after the company admitted three breaches of the CAWR during work on a college building in Wolverhampton. In May, Bedlam Lascar Seals Ltd. was fined £12,500 with £1,526 costs by Feltham Magistrates after admitting four CAWR charges; HSE inspectors found an asbestos weaving machine and unsealed bales of raw asbestos on the company's Hounslow premises. The uncontrolled removal of asbestos ceiling tiles between November 18 and December 7, 1997 led to a £7,000 fine plus £5,000 costs after Anglian Water Services Ltd. admitted two offences under the Health and Safety At Work Act (HSWA; 1974) at Fenland Magistrates Court in July. Weeks later a £14,000 penalty was levied on Exxon Chemical Ltd. after the company admitted accidentally exposing employees to asbestos dust during work on a tower at the Fawley refinery in the New Forest. A spokesperson for Bristol City Council (BCC) cautioned: "property owners and employers (that they) must ensure their properties are checked and any asbestos is properly managed" after the maximum fine of £20,000 plus costs was imposed on a London-based property company which had infringed section 2(1) of the HSWA. In a prosecution brought by BCC this Summer, Willow Management admitted exposing employees to asbestos pipe lagging and debris in the boiler room of a Bristol office building.
On September 4, 1998 Birmingham Crown Court convicted six defendants of charges relating to the removal, disposal and management of asbestos in a joint HSE & EA prosecution. Fines totalling £98,000 and a nine month prison sentence were imposed for contraventions of the HSWA and the Environmental Protection Act 1990 during a two week period in September, 1997. Three hundred bags of brown asbestos waste were dumped at eight sites across Birmingham by contractors working for Rollco Screw and River Company. An EA spokesperson said: "When I investigated this, it was clear that the asbestos had been dumped recklessly and indiscriminately with some of the material blowing around loose from the bags. No thought had been given to the danger this posed to the public - I was horrified to hear that children had been seen playing with it, since it had been dumped near a school, in a playground and in a supermarket car park, as well as at other locations." Alan Craddock, the HSE Inspector who conducted the Birmingham investigation, commented: "The importance of property owners and managers effectively and properly managing asbestos when it is found on their property has been highlighted by the severity of the sentences. The judge was especially critical that people who had not been licensed to carry out work on asbestos were brought in. It is vital that people check... the qualifications of any person employed to carry out work." This was the second custodial sentence resulting from an HSE asbestos prosecution; the first was imposed by Bristol Crown Court in 1996 on a defendant who had demolished asbestos-containing sections of a factory with an excavator.
New statistics predict that on average seventeen British construction workers will die of asbestos-related diseases every day for the next twenty years. In the past, hard-pressed local councils often excused their inaction on asbestos by citing lack of funds. In July, Norwich City Councillors were advised that a sum of £871,000 would be needed to manage the threats posed by asbestos in 29,000 council houses, buildings and other sites over the next four years. Failure to do so could result in withdrawal of insurance cover, astronomical compensation bills and prosecution. An insurance risk manager at Zurich Municipal Insurance says that "Any authority which knows it has an asbestos problem and does nothing to mitigate the effects does not have a leg to stand on." In August, the HSE informed local authorities that over the next twelve months asbestos audits would be carried out on forty councils nation-wide to assess levels of compliance with legislation designed to protect "employees and contractors carrying out maintenance and building work." According to the HSE letter: "particular reference will be made to the presence of asbestos in housing stock, schools and leisure centres." Since that announcement, regional newspapers have reported the initiation of local authority plans to identify asbestos in domestic and public buildings by Fenland District Council, Sunderland City Council and Falkirk Council.
Shipboard and Shipbreaking Exposures
Exposure to asbestos-containing products and cargo has affected marine engineers, deck personnel and maintenance staff on-board. In April, 1998 thirty Scottish electricians in Bremerhaven, Germany stopped work after discovering asbestos during rewiring work on the Victoria, a 28,000 ton P & O liner. Hugh McMahon, the Strathclyde West MEP, praised the actions taken by the men saying: "In Scotland in particular, many thousands of former shipyard workers and others have been exposed to asbestos with disastrous effects on their health." Last year, Cunard was cautioned about the risks of ship-board asbestos exposure by Dr. Nigel Roberts, the principal medical officer on the QE2 for twenty years. According to his solicitor: "Filipino crew members were used to strip out the vessel without any protection. Dr. Roberts objected most strongly to that and was concerned about the health and safety of crew members." Roberts initiated an action for unfair dismissal after being made redundant in September, 1997. Shortly after the case commenced, Dr. Roberts accepted a settlement from his employers. A Cunard spokesman confirmed that Roberts, now living in Barbados, still acts as a consultant for the company. NUMAST, the National Union of Marine, Aviation, Shipping and Transport Officers, confirms that it is pursuing thirty claims on behalf of members with asbestos-related diseases. In 1998, the union set-up an asbestos register for members who had been exposed to asbestos. To date, one hundred and thirty men have registered; Martin Rogers, head of legal services, claims that the final total could be "endless."
Repercussions of ship-board and dockyard asbestos exposure are international. Seventeen claims on behalf of retired shipyard workers were submitted to the Yokohama Defence Facilities Office of the Japanese Defence Agency on April 21, 1998; it is alleged that occupational asbestos exposure occurred at Yokosuka, a U.S. naval dockyard in Japan, throughout the post-war period. The men maintain that during the Korean War, they worked night and day to mobilize warships in the zones of conflict with no protective equipment or measures to prevent asbestos exposure. The victims, all of whom have asbestosis or lung cancer, are currently receiving benefits under the government labor insurance scheme; they are seeking compensation for loss of income from the U.S. Navy. A Pulitzer-prize winning expose of the shipbreaking industry appeared in the Baltimore Sun between December 7-9, 1997. It presented a horrific picture of appalling conditions in America's depressed ports and Indian shipbreaking yards. The wholesale sell-off of obsolete warships by the US Navy has contributed to the growth of a flourishing industry which is often unregulated, unsupervised and plagued by official indifference. The reporters described: cover-ups at Terminal Island, California where twenty laborers were fired for informing federal investigators that asbestos was being improperly removed from Naval ships, contamination by asbestos, oil and lead of a riverside scrapyard in Wilmington, North Carolina, attempts orchestrated by employers to hide asbestos from inspectors in a derelict barge in Baltimore and workers on-board the aircraft carrier USS Coral Sea stripping asbestos insulation with their bare hands. Fermin Castillo, a worker at Baltimore's Seawitch Salvage yard, said: "There was asbestos all around us. At first they just stacked it on top of the ship. There was always a lot of dust in the air." Conditions in Brownsville, Texas, where the nearest government enforcement officials are hundreds of miles away, are notorious; the predominantly Latino workforce, desperate for work, remains uninformed of the risks. Pedro Rios, a steel-cutter for more than twenty years, says: "It's out of need we do this. I got this job because I don't know how to read or write. You could say this is a job for the dumb." The conditions in eleven salvage yards in Alang, Suchana and Darukhana, India are, if possible, even worse. The $500 million industry employs forty thousand men, many of whom work for $1.50 a day. Along the beach in Alang, tankers, freighters, destroyers and fish processors from all over the world are scrapped by men wearing sandals and scarves rather than respirators and protective clothing.
Asbestos Removal in the US and UK
Describing an illegally conducted asbestos removal operation in Wisconsin as "the tip of the iceberg" Janet Reno, the Attorney General of the United States, commented that: "knowingly removing asbestos improperly is criminal. Exploiting the homeless and other vulnerable people to do this work is simply cruel." Last April, three men were indicted on sixteen counts including conspiracy and offences under the Clean Air Act for permitting unauthorized stripping of two miles of asbestos insulation at the Weyerhaeuser Door and Stile factory. Steven Herman, the spokesperson for the Environment Agency, maintains that this was a sophisticated operation involving the recruitment and transport of thirteen men, most of whom were homeless, from Chattanooga, Tennessee to Marshfield, Wisconsin nearly nine hundred miles away. The men, who began work in the Autumn of 1996, were assigned false names and social security numbers; they were untrained and unequipped to carry out the job safely. According to the Justice Department, in the last two years prosecutors have discovered dozens of other cases involving the homeless, school age children and other vulnerable groups of workers throughout the USA. Eleven of the prosecutions brought by the Environmental Protection Agency have resulted in prison sentences of up to two years. In February, 1996 a property developer was sentenced to eighteen months for recruiting workers from a homeless shelter to remove asbestos from a commercial building in Philadelphia. In October, 1997 a contractor in West Virginia was jailed for fifteen months for hiring untrained teenagers to demolish an apartment building which contained asbestos. In Alaska, untrained teenagers were employed to clean up asbestos debris by Operations Manager Mark Hackett who admitted improperly removing asbestos. Timothy Dean Tomlinson, joint owner of WR Engineering & Environmental Inc., was convicted of violating the Clean Air Act on July 17,1998 in the District Court for the Western District of Washington. In May, 1997 Tomlinson hired untrained homeless men to scrape and sandblast asbestos from interior surfaces of a Seattle building thereby causing high levels of asbestos contamination inside and outside the premises. Executive Director Mary Ann Gleason of the National Coalition for the Homeless is horrified that: "in several states people are putting in harm's way, homeless individuals eager for employment opportunities." Media reports have been circulating about the use of homeless workers, untrained teenagers and drug addicts at asbestos removal sites in the UK. Dry removal, that is the stripping of asbestos-containing products without the use of wetting agents or surfactants, remains the norm not the exception in the UK despite Article 6 of EU Directive 83/477/EEC and Regulation 8 of the Control of Asbestos at Work Regulations both of which stipulate that the liberation of asbestos fibers at source must be tightly controlled.
2. Trends in UK Asbestos Personal Injury Litigation
Anecdotal evidence suggests that the number of workers initiating asbestos personal injury cases is growing; defendants continue to exhibit an aversion to courtroom proceedings, often opting for last minute settlements. New categories of claimants and types of actions are succeeding. After watching her husband Derek die of mesothelioma in 1995, Anne Macpherson contracted the disease herself. Last year, aged 56, she was forced to retire due to her illness. On August 31, 1998, a spokesperson for the trade union which handled her compensation claim announced that Alcan International, Mr. Macpherson's employer, had agreed to an out-of-court settlement of £110,000. Another negotiated settlement was reached this Summer on behalf of a group of workers from T&N plc's Ferodo factory in Caernarfon, Wales. Solicitor John Brimelow said that: "All ten have been diagnosed as suffering from asbestos-related pleural plaques which were due to exposure in the course of their employment over the year at the factory... All 10 have received a payment of damages now and an insurance policy, in effect, against any longer-term repercussions which may develop. They are the first of many similar pending cases." From 1962-1997, asbestos was used in the production of Ferodo brake and clutch linings by a workforce of nearly one thousand. Each plaintiff will receive a provisional settlement of £3,500. In Scotland, compensation claims for grief, suffering and anxiety caused by bereavement are only permitted for spouses and children. On July 21, the Court of Appeal in Edinburgh accepted that an in-law could also make such a claim. Jean Howieson, Mother-in-law of mesothelioma victim John Montieth, has joined her daughter and two grandchildren in legal proceedings against Cape Insulation, the company which owned the Stirling factory where the deceased worked. According to her solicitor, Mrs. Howieson: "lived close to her son-in-law, visited him regularly, and treated him very much as a natural son. Their relationship was very close."
It is well-known that even when UK asbestos defendants vigorously contest claims, their preferred option is to avoid the inside of a courtroom. The July, 1998 issue of the in-house newsletter of the London firm Field Fisher Waterhouse provides several examples of this strategy. In this document, plaintiffs are sometimes referred to by initials. Mr. S, a plater at various power stations between 1967-1980, received £55,000 in full and final settlement for pleural plaques, mild asbestosis and lung cancer on the morning of the trial in May, 1998. The following month, a last minute offer of £75,000 was made to Mr. R in his action against sixteen different defendants. Fifty year old Mr. R, a mesothelioma sufferer, had been a lagger between 1962-1969. Proceedings listed for trial on June 2, 1998 were avoided when negotiations on the courthouse steps were successful in the case of James Tuck vs. Dicks Eagle Insulations Ltd. and Others. Now aged fifty and suffering from mesothelioma, Tucks had worked for twenty-three companies as a lagger's mate, improver and lagger from 1964 to 1975. His case settled for £200,000. A brief but intense period of asbestos exposure resulted in Mr. A contracting mesothelioma after working for two and a half months on the electrification of the steam winding plant at Gresford Colliery in North Wales. His employers, Associated Electrical Industries Ltd., settled the claim of his widow and three of her four children for £500,000. Experts predict that the incidence of asbestos-related disease will rise dramatically over the next twenty years. The traditional British reluctance to resort to the courts for compensation is falling by the wayside. There will almost certainly be more asbestos-related personal injury cases as plaintiffs target employers and others whose behaviour gave rise to asbestos exposures.
Compiled by Laurie Kazan-Allen