Issue 34: Spring 1999
Table of Contents:
1. Double Standards: The Global Trade in Asbestos
2. Mesothelioma: A European Epidemic
3. New Controls, More Prosecutions but No Ban
1. Double Standards: The Global Trade in Asbestos
As chrysotile markets in the West succumb to growing uncertainties, asbestos companies increasingly look to third world countries to absorb production. European multi-nationals, barred from using asbestos in Austria, Belgium Denmark, Finland, France, Germany, Italy, the Netherlands, Sweden and Switzerland, export redundant technology to countries with less stringent health and safety controls. Saint Gobain, a leading French asbestos and glass manufacturer, converted to non-asbestos technology when a domestic ban on chrysotile came into force. Overseas, however, the company is still committed to asbestos. Brazilian subsidiaries of Saint Gobain hold a substantial stake in the country’s largest chrysotile mine; the Canabrava mine in Goias state is operated by Sama-Mineracao de Amianto S.A. (Sama Asbestos Mining Inc.) which is, in turn, controlled by Eternit SA. Eternit’s Osasco plant produced and exported asbestos cement for more than five decades. In 1997, the total income generated by Brazil’s asbestos cement industry was US$540 million; forty percent of production was exported to Japan, Thailand, India and dozens of other countries. According to the Brazilian Association of People Exposed to Asbestos (ABREA), thousands of Brazilians are still occupationally exposed to asbestos. There are no government statistics on asbestos-related deaths in Brazil.
Last Summer, Joao Batistica Momi, a former Eternit worker and a member of ABREA, was awarded more than £100,000 by Judge Malfatti of the 27th Criminal Court of Sao Paulo. An English translation of a Brazilian article reported that: “The indemnity judgement includes reparations for moral damages and material damages for medical care and a monthly pension of a quarter of his final salary, calculated by his attorney at 1,200 reais.” Momi has asbestosis which was contracted from exposures he experienced over a period of thirty-two years with Eternit. An ABREA spokesperson predicts that the Momi verdict could open the flood-gates to hundreds of other claims. The company is appealing the judgement. At the same time that this landmark case was working its way through the Brazilian court, Eternit S.A. issued a summons under article 144 of the Brazilian criminal code for defamation against one of ABREA’s founding members: Ms. Fernanda Giannasi. In 1998, Ms. Giannasi was honoured by the City Council of Osasco for her dedication and unstinting efforts to protect the health of Brazilian workers. Although Ms. Giannasi has been a Safety Engineer for the Ministry of Labour in Sao Paulo for fifteen years, neither her department nor the state government of Sao Paulo became involved in the case. News of the criminal proceedings generated international support for the beleaguered public servant including submissions by the American Public Health Association, the Society for Occupational and Environmental Health, the Metal Workers Union of Osasco and Sao Jose dos Campos/Sao Paulo state and Caxias du Sul/Rio Grande du Sul state, Association Nationale de Defense des Victimes de L’Amiante (France); petitions from the Hazards Conference in Bristol, England and the National Asbestos Conference in Clydebank, Scotland were sent directly to the Court. John Edmunds, General Secretary of the GMB Union, and Peter Skinner, Member of the European Parliament expressed concern to the Brazilian Ambassador in London. An Early Day Motion tabled by Michael Clapham, MP called on Her Majesty’s Government “to do all it can to bring pressure to bear on the company to drop this scandalous action.”
Eternit’s lawyers objected to statements by Ms. Giannasi in an article entitled: “Misleading Propaganda of the Asbestos Industry in the Medical Journals of the Third World.” Eternit, S.A. also objected to Ms. Giannasi’s public condemnation of hundreds of agreements with former asbestos employees; in return for out-of-court settlements which one Brazilian judge found “highly questionable,” potential plaintiffs relinquished all rights to sue for compensation for occupational disease, disability and negligence. Judges of the 27th and 3rd Civil Districts in Sao Paulo rejected these settlements calling them: “transactions which were not licit,” a “transactional instrument (which) can be considered unconstitutional” that was devised “to give the appearance of judicial sacrament... to a negotiation of doubtful validity made between a powerful economic group and workers who are evidently incapable of understanding what they are agreeing to.” On January 23, 1999, Judge Francisco Eduardo Loureiro of the Second Criminal District of the Pinheiros Forum, Sao Paulo City, dismissed all charges against Ms. Giannasi. Although the company threatened to: “appeal this decision, which we consider to be wrong, or ask to be reimbursed for losses and damages, since the image of the company is being affected by the words of the engineer,” the action has now lapsed and the criminal case has been concluded. It is not known whether a civil action will be launched. On February 3, 1999 Judge Tarciso Beraldo threw out the disputed agreements between Eternit, S.A. and its former workers on the grounds that the signatories did not appreciate the consequences of their participation. The Judge questioned the “doubtful ethicality” of the representation of all ex-employees by the same law firm and berated the “minimal” compensation being offered for such serious diseases. Yet another case of defamation was brought by Eternit, S.A.’s lawyers last year; this time in the Third Criminal District of the Regional Forum of Santa Amaro, Sao Paulo. The plaintiff was journalist Adriana Isabel Aguilar; the offence, publication in September, 1998 of an article in the major business newspaper: Gazeta Mercantil. The subject of the piece was Judge Malfatti’s decision in the Momi case. Eternit objected to the inclusion of comments by Ms. Giannasi even though the Presidents of Eternit and ABREA, defence and plaintiffs’ attorneys were also interviewed. Eternit maintained that the article constituted an “attack on its moral reputation” which could have “direct repercussions on its financial stability.”
There is a proliferation of Eternit companies world-wide; some are linked, others are not. Eternit was the name of a manufacturing process developed at the beginning of the 20th century. The technique of making asbestos cement sheeting was franchised and the name adopted by businesses in many countries including: France, the UK, Germany, Chile, the Netherlands, Argentina, Hong Kong, Uruguay, China, Nigeria and India. On-going research has identified three major Eternit groups: Eternit-Belgium, now known as the Etex Group, Eternit-Switzerland and Eternit-Denmark. Information obtained from industry observers is that the Belgian and Swiss groups were closely linked until 1989; some believe that although these concerns are now competitors, close contact and some degree of cross-ownership remains. In 1985, Eternit-Switzerland, owned by Stephan Schmidheiny, was the world’s second largest seller of asbestos; its asbestos-cement operations in thirty-two countries producing annual sales of $2 billion. In 1997, Etex’s 19,478 personnel generated net sales world-wide of $2.04 billion, 12% up on the previous year. Whether linked or independent, certain similarities emerge upon a cursory inspection of some of the Eternit off-spring. On December 16, 1996, Eternit-France, part of the Etex Group, filed charges of defamation against Television France 2 for statements made in a documentary entitled: Mortal Asbestos. The program began: “Every year, 2000 people die from asbestos poisoning in France.” Focusing on the industry leaders, it was alleged that: “The asbestos multinationals Saint-Gobain and Eternit never hesitated to play with the health of their workers.” The program highlighted the companies’ transfer of asbestos production from France to third world countries and discussed the role played over the last twelve years by the Permanent Committee on Asbestos, an industry financed public relations and lobbying body. Recognising the documentary’s serious intention, Judges Domb, Charruault and Nesi dismissed the case on March 25, 1998. In 1997, the Court of Appeal in Dijon also found against Eternit-France in the first successful civil action against the company for asbestos exposure to French workers. The victory for Madame Domagala, widow of a former Eternit employee, paves the way for other civil suits. More than six hundred French asbestos victims are currently bringing lawsuits against Eternit, Saint-Gobain, the naval dockyards and other employers for inexcusable fault (faute inexcusable). At the request of Eternit-Lebanon, owned until the mid-1980’s by Eternit-Switzerland, the Beirut Stock Exchange suspended trading in the company’s shares on January 21, 1999. A ban on asbestos cement pipes in Syria, formerly the company’s biggest market, had contributed to losses of US$24.5 million over the last three years. In mid-January Eternit filed a “concordat preventive,” a legal manoeuvre to restructure liabilities of US$30 million. Speaking on behalf of Greenpeace Mediterranean, Ghassan Geara said: “If the head of Eternit, Pierre Abboud, would have phased out asbestos and concentrated on alternatives like concrete and plastic PE pipes, then the jobs and the health of more than 300 workers at Eternit would be saved.”
Eternit and Saint Gobain are not alone in their asbestos-related difficulties; Cape plc, formerly Cape Asbestos Company Ltd., has been having a bumpy ride in the UK and US. On February 4, 1999, The Independent reported that Cape had hired public relations consultants to orchestrate “a xenophobic campaign aimed at blocking thousands of compensation claims.” Charles Lewington, one-time communications supremo under Prime Minister John Major, advised Cape: “The wider political implications of the granting of legal aid to even a handful of non-British claimants will be immediately apparent to a paper like the [Daily] Mail. The political ironies are so delicious for a paper like the Mail... that the details of the claims are likely to be of secondary interest.” Following a pivotal decision by the House of Lords last year, nearly two thousand plaintiffs have applied for legal aid to bring UK cases against Cape for asbestos exposures experienced in South Africa. Legal proceedings for these cases have now been issued. In November, 1998 Charter plc, formerly a substantial Cape shareholder, petitioned the US Supreme Court to review a decision of the Fourth District Illinois Appellate Court. Upholding a trial court decision in two asbestos wrongful death lawsuits, the Appeal Court had concurred that an out-of-state defendant could be tried in Illinois if a tortious act had been committed. Charter’s lawyers are questioning: “whether the due process clause of the Fourteenth Amendment ... permits the exercise of in personum jurisdiction over a foreign defendant having no contacts with a forum based solely on attribution to the foreign defendant of the forum contacts of another defendant which is alleged to have conspired with the foreign defendant.”
Between May 13 and July 8, the Health and Safety Executive (HSE) and the British Occupational Hygiene Society will be hosting five one-day asbestos roadshows around the United Kingdom. Aimed at “everyone who deals with asbestos at work,” these meetings are intended to “provide an opportunity to find out more about what is happening in the world of asbestos.” Scheduled speakers at the meetings include representatives from Cape Calsil Systems Ltd., Eternit UK Ltd., BBA Friction Ltd “manufacturers of asbestos and non-asbestos friction materials” and Klinger Ltd. which, according to one employee, is linked to the Klinger Group, processors of raw chrysotile in Southern Africa for over one hundred years. On the one hand, it could be said that these speakers are well-chosen, drawing as they do on a collective experience of asbestos production of hundreds of years. On the other hand, asbestos victims and their families might find it offensive that commercial interests are represented on conference platforms alongside HSE personnel, local authority officials and trade unionists.
2. Mesothelioma: A European Epidemic
Scientists believe that two hundred and fifty thousand men will die from mesothelioma in Western Europe between 1995 and 2029. An analysis of epidemiological data from Britain, France, Germany, Italy, the Netherlands and Switzerland reveals that “the highest risk will be suffered by men born around 1945-50, of whom about 1 in 150 will die of mesothelioma.” The European mesothelioma epidemic by J Peto, A Decarli, C L Vecchia, F Levi and E Negri appeared in the British Journal of Cancer (1999). Predictions that an equal number of asbestos-related lung cancer fatalities will occur have been soundly criticised as gross underestimates. On previous occasions, the HSE has estimated that for every one mesothelioma death, there are two to three asbestos-related lung cancer deaths. Based on these guidelines, the total respiratory cancer burden (mesothelioma plus asbestos-related lung cancer) in Western Europe could be as high as one million. In their paper: Pleural mesothelioma in Sweden: an analysis of the incidence according to the use of asbestos in the Journal of Occupational and Environmental Medicine (1999), B Jarvholm, A Englund and M Albin conclude: “The annual incidence of pleural mesothelioma attributable to occupational exposure to asbestos is today larger than all fatal occupational accidents in Sweden... there is no obvious indications that the preventative measures have decreased the risk of pleural mesothelioma.” Of particular interest is the assertion that: “The present situation in Sweden... is caused by a situation in which at least 90% of the asbestos used was chrysotile.”
In a presentation to the Asbestos disease litigation: liability, causation, quantum seminar on January 27, 1999, Frank Burton QC reported that: “although there has been a decline in cases concerning asbestos manufacturing workers and laggers there has been an increase in cases concerning persons exposed in the construction industries, non-asbestos manufacturing factories, power stations and shipyards.” Discussing recent judicial developments vis-à-vis causation, Ronald Walker QC focused on non-negligent exposure. This strategy, largely ignored in asbestos cases, could be successful if: “the court is persuaded that the plaintiff would, on a balance of probabilities, have sustained some injury even if the defendants had not been guilty of any breach of duty, damages should properly be limited to an award for the worsening attributable to the defendants’ fault exposure.” Inadequate preparation is the main reason for the discrepancy in court awards according to Andrew Hogarth; a series of useful tables attached to his paper illustrates the variations. While a sixty-one year old mesothelioma victim received £74,500 in 1988, having been ill for three years, a sixty-two year old victim, in similar circumstances, received £50,700 in 1994. Common mistakes by plaintiffs’ solicitors include: failure of medical and lay evidence to highlight plaintiffs’ pain, neglect of psychiatric consequences and lack of expert opinion on the nursing and care required. Inadequate attention to plaintiffs’ medical records and delays in processing claims are two common failings of defendants’ solicitors.
Recent examples show that defendants in asbestos cases still prefer negotiation over litigation. As a clinical student and locum houseman at Middlesex Hospital, James Emerson walked through areas containing a great many pipes lagged with blue asbestos. At the age of forty-seven Emerson, a consultant plastic surgeon, died of malignant pleural mesothelioma. The trial against Camden and Islington Health Authority, due to commence on November 16, 1998, was averted when the defendants admitted negligent exposure; damages are being assessed. Plaintiff’s solicitor Adrian Budgen, from the firm of Irwin Mitchell, believes that: “the compensation for Mr. Emerson’s widow and three young children is likely to be the largest ever awarded in an asbestos personal injury case in this country. Of significance for future cases is the acceptance by the defendants that transient, low dose exposures can produce such devastating results and critically that they were negligent in permitting such exposures to occur in the late 1960’s.” In February, 1999 another trial was forestalled when defendants T&N plc agreed to compensate Eileen Ashford, whose husband died of mesothelioma in 1993, £110,000 for failing to “put a health warning on its products.” Unable to sue Graham Ashford’s employers, a small plumbing firm which had gone out of business, his solicitor sued the manufacturer. “Many people go without compensation for serious illness caused by asbestos. This case has shown that if you can’t trace your employer’s insurance company it is possible to claim against the company who sold them the asbestos” said James Thompson, a solicitor with the firm of John Pickering and Partners. Products manufactured by Turners Asbestos Cement, a T&N subsidiary, were used between 1960-1970 by Fred Smith, a roofer who worked for a number of small firms. Last year Mr. Smith died, aged fifty-one, from mesothelioma; T&N have conceded liability and offered to settle the case with Mr. Smith’s widow for a figure in excess of £335,000. According to her solicitor, Daniel Bennett of Leigh, Day & Co: “We had superb evidence from his co-workers and surveyors that Turners Asbestos Cement products were used and that T&N hid the fact that these products were dangerous. T&N have been paying out 100% of well-founded product liability claims for several years now.”
T&N were also the losers in the case of Patrick Joseph O’Toole vs. Irish Rail, British Rail and J W Roberts Ltd. (JWR), part of the Turner & Newall Group of Companies, in the Queen’s Bench Division of the High Court. The judgement of February 19, 1999 awarded Mr. O’Toole’s widow a sum in the region of £200,000; the precise amount awaits finalization of interest computations. Concluding that: “Roberts knew in 1954 and 1955 that asbestos dust was a serious hazard for health. They gave no warnings, and failed to take adequate precautions to protect those likely to be affected by its operations,” Judge Hayward apportioned the damages seventy per cent from JWR and thirty per cent from Irish Rail. Mr. O’Toole died in 1987 from pleural mesothelioma aged fifty-four. In 1989, proceedings were initiated against Irish and British Rail. The next three years passed in a haze of accusation and blame; in 1992, Irish Rail raised the possibility of an independent contractor having been responsible for the asbestos exposure. It took another two years for T&N and JWR to be joined in the action as third and fourth defendants. Numerous attempts at negotiation failed. Proceedings against T&N and British Rail were discontinued in 1998. Alison Mills of Lamport Bassitt, the plaintiff’s solicitor, said: “It is disgraceful that this case has taken so long to be resolved. We were faced with interminable delays caused by the lack of co-operation and obstructive approach taken by the defendants. There is no good reason why the plaintiff should have been kept out of her rightful compensation by the wranglings of the defendants for so long. She could and should have been paid her damages far earlier, leaving the defendants to argue afterwards about who is to blame.” An appeal is being considered by T&N’s solicitors.
3. New Controls, More Prosecutions but No Ban
While a rash of new laws, guidance notes and prosecutions indicate a clampdown on asbestos exposure in the UK, a domestic ban on the import and use of chrysotile remains elusive. On February 1, 1999 the regulatory regime for working with asbestos was tightened by the introduction of stricter legislation and codes of practice. The changes were proposed in response to increasing evidence that those most at risk of asbestos-related diseases are carpenters, electricians, plumbers and others in the building trades. The Asbestos (Licensing) Regulations 1983 have been expanded to cover work with asbestos insulating board and an HSE license is now required for work on this type of material. Changes to The Control of Asbestos at Work Regulations 1987 lower the action levels and control limits for exposure to chrysotile, regulate previously uncontrolled types of work with asbestos and impose accreditation standards on asbestos laboratories. Also in February, the HSE published two Approved Codes of Practice aimed at employers, contractors and the self-employed. Controlled asbestos stripping techniques for work requiring a license warns that: “uncontrolled dry stripping of asbestos should be avoided whenever possible.” A combination of disciplined work practices and the use of wetting agents is recommended: “RPE should NOT be relied upon as the sole way of controlling exposure during asbestos stripping.” After describing uses, composition and risks, Working with asbestos cement sets out general principles, methods of work, decontamination, cleaning, waste disposal and air monitoring procedures.
Hiring “a man in a pub” to remove asbestos at the Midlands premises of Clarity Print Ltd. was punished with a £13,000 fine by West Bromwich Magistrates in February, 1999. The plaintiffs paid £700 for a job which had previously been costed at £1500 by asbestos removal contractors. Last Autumn, Paul Evans, an unlicensed asbestos contractor, was gaoled for nine months for recruiting laborers from a pub to unknowingly handle brown asbestos during removal of insulation and roofing material. In another case, the Rover Group was fined £6000 under Section 3(1) of the Health and Safety at Work Act 1974 by Birmingham Magistrates for allowing work to proceed on a car conveyor system during which exposure to asbestos occurred despite an earlier survey which had identified deteriorating asbestos pipe lagging at the Longbridge Works. Vickers plc, a specialist metal firm, was prosecuted at Shropshire Magistrates Court for permitting contractors to dismantle asbestos-insulated furnaces at its Harlescott factory in December, 1997. Vickers’ staff neglected to inspect the furnaces before work commenced in the mistaken belief that asbestos had been removed during refurbishment work in the 1980’s. An “astonishing lapse” resulted in a fine of £100,000 being awarded against Brintons Limited, a carpet manufacturing company, which exposed employees and outside contractors to asbestos at a Kidderminster factory. Worcester Crown Court was told that when the Oldington site was purchased in December, 1995, verbal assurances had been received that the building was asbestos-free. Unfortunately, Brintons did not request written confirmation from the former owners; a surveyor’s recommendation for an asbestos survey prior to purchase had also been overlooked. The level of fine imposed by Recorder Martin Wilson QC is being appealed by the company. Having ignored warnings from Environmental Health Officers over a period of two years, P.P. Mailing Ltd. of Erith, Kent was recently fined £22,500 for multiple health and safety infringements; a substantial part of the penalty pertained to the exposure of sixty employees to deteriorating amosite-containing roofing material. In light of the financial penalties handed out in the cases discussed, it is surprising that a conditional discharge was received in March, 1999 by Joseph Nash, a former scrap metal dealer, who was convicted of forging an asbestos license. During demolition work on a Stourbridge hospital, Nash submitted forged documentation for inspection to a planning supervisor. HSE Inspector Alan Craddock said: “Licensing is the strongest method of control we have... it is essential that we make sure that no one devalues it.” Costs of £2,000 were awarded against the contractor.
Although the consultation period for CD140: Proposals for amendments to the Asbestos (Prohibitions) Regulations 1992 ended in December, 1998, no report or recommendations have yet been made to Parliament. On February 11, 1999, an Early Day Motion was proposed to the House of Commons urging the “United Kingdom Government to go ahead with a unilateral ban if a European one fails to materialise in the near future.” While moves towards a European Union ban have temporarily stalled, progress is being made in the Antipodes. In New Zealand restrictions on the import of chrysotile fibre are being considered; in February, 1999, Australia’s National Industrial Chemicals Notification and Assessment Scheme recommended that: “the uses of chrysotile in Australia, including manufacture for the purpose of export, be phased out over time.”
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Compiled by Laurie Kazan-Allen
©Jerome Consultants