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|ISSN 1470-8108||Issue 44||Autumn 2001|
As reported previously (newsletter issues 42 & 43), the verdict of Mr. Justice Curtis in the Fairchild case created an unfavourable judicial climate for mesothelioma claimants with multiple occupational exposures in the UK. Some cases have proceeded during this period of upheaval even though the Fairchild appeal will not be heard until November 12, 2001. At that time, four other cases will also be considered. One of them is the judgment for Edwin Matthews, a fifty-four year old mesothelioma victim, in his action against Associated Portland Cement and British Uralite PLC. Geraldine Coombs, Mr. Matthews’ solicitor, believes that the July 11, 2001 verdict handed down by Mr. Justice Mitting reaffirms the accepted practice pre-Fairchild: "all exposures to asbestos more than 10 years prior to the development of the disease should be considered causative." The testimony relating to Mr. Matthews’ exposure is appalling in its graphic description of the working conditions prevalent during the years of his employment. His duties at British Uralite were explained as follows: "I took the wet asbestos paste and formed collars and pipes around moulds, using my hands. Once I had done this, the moulds were stacked up and placed into an oven… Although I worked with the wet asbestos paste bits of the asbestos paste fell onto the floor and fell onto my work station. The asbestos paste dried off very quickly. When dry it was asbestos dust. There was asbestos dust on my work station and dust all over the floor. I walked on it, raising, dust… Part of my job was to remove the cooked asbestos pipes from the oven and stack them. Once cooked they were dusty. Removing them from the oven and handling them as I stacked them, I disturbed more asbestos dust."
Mr. Matthews worked at the British Uralite factory in Higham, Kent for six weeks at the beginning of 1973. From there he went to the Martin Earles Works in Strood, Kent; these premises belonged to Blue Circle Enterprises, the company which became Associated Portland Cement Manufacturers Ltd. (APCM). The latter period of employment lasted eight years; during the second half, the plaintiff was in frequent contact with asbestos: "I estimate that I spent about forty-five minutes to one hour every day in the boiler house throughout these four years 1977-1981. The boiler house was in a confined space and the air in there was poor quality. The asbestos dust hung in the air. I swept up using a sweeping brush and shovel in the boiler house about once a week… Sweeping it up stirred the asbestos dust in the air." Mr. Matthews described occasions when he worked in close proximity to fitters stripping asbestos lagging by hand or with hand tools. Large asbestos-lagged pipes, which were above ground level, were used as walkways. Two experts produced divergent estimates of the quantities of exposure caused by each defendant with the plaintiff’s witness claiming 61% (later increased to 72.6%) of the exposure occurred at British Uralite and 5.5% (later reduced to under 5%) at APCM while Uralite’s expert alleged that the exposure by Uralite accounted for 40% and that by APCM 27%. Addressing causation, Mr. Justice Mitting cited the House of Lords’ decisions in McGhee and Wilsher. From the former, the judge quoted Lord Reid’s finding that: "the legal concept of causation is not based on logic or philosophy. It is based on the practical way in which the ordinary man’s mind works in the everyday affairs of life. From a broad and practical viewpoint I can see no substantial difference between saying what the defender did materially increased the risk of injury to the pursuer and saying that what the defender did made a material contribution to his injury." Challenging the Fairchild decision head-on, Justice Mitting concluded: "the claimant’s exposure to asbestos fibres in the employment of the two defendants, did materially contribute to, and so cause his mesothelioma… They owed him statutory and common law duties to take steps to minimise the risk. They failed to do so… It seems to me wholly artificial to require a claimant to prove which fibre, or fibres, inhaled in whose employment in precisely what circumstances, caused or set off or contributed to the process by which one or more mesothelial cells became malignant." Damages were apportioned equally between the first and second defendants and leave to appeal was given.
During the four-day Fairchild appeal, the Pendleton decision, being challenged by the defendants, and the Twohey and Fox (newsletter issue 43) verdicts, being challenged by the claimants, will be heard along with the Matthews case. In the Pendleton judgment, His Honour Judge Tetlow ruled on the construction of section 51, subsection (1) of the County Courts Act 1984 finding that the court is entitled to "make an order for provisional damages in respect of the risk of mesothelioma and lung carcinoma," even though under Fairchild it would not be possible to establish "which of the defendants exposed him (Pendleton) to the putative fibre or fibres that caused the onset of the condition." Lawrence Twohey died of mesothelioma in 1989, aged fifty-nine. As a foreman plumber and heating engineer, Mr. Twohey had been employed from 1954-1968 by J Lindley & Company Limited, a Leeds-based firm which undertook contract work repairing boilers for Leeds City Council. Mr. Twohey removed asbestos lagging using a chipping hammer at various Leeds schools; he also mixed asbestos with water and applied it to boilers and pipes. No precautions were taken. The case was brought by Mr. Twohey’s executors against Leeds City Council which, as the occupiers of these buildings, should have "kept abreast of their duties under the statutory (asbestos-related) provisions." Although Judge Bush found: "that by the end of 1958 the Defendants should have been aware from the available literature of the risk of asbestosis and cancer from exposure to asbestos dust and fibres in the process of stripping asbestos insulated heating boilers and pipes and from mixing asbestos and reapplying it to boilers and pipes," he maintained that Leeds City Council was "entitled to regard Lindleys as competent to do the work on which the Defendants engaged them." The resolution of the case hinged on whether Mr. Twohey’s presence on the Leeds sites constituted "special circumstances" within the meaning of the Occupiers’ Liability Act of 1957; a positive finding would make the Council liable as a joint tortfeasor. Resting on the judgment of Mr Justice Eady in Babcock International Limited v National Grid Company, one of the cases being appealed with Fairchild, Bush concluded: "it was not reasonable to expect the Defendants to supervise the Lindleys’ activities in order to ensure that they discharged their duty to their own employees."
An application to set aside an order for judgment in a mesothelioma case illustrates the determination of defendants to maximize the judicial advantage of Fairchild. Although agreement had been reached in the case of Kenneth Taylor v East Riding of Yorkshire Council and South Humber Health Authority NHS Trust at a case management conference held on January 30, 2001, the Fairchild loop-hole encouraged the defendants to seek release from this arrangement. The May, 2001 ruling of the Sheffield County Court upheld the original consent judgment entered into by all parties.
The fall-out from Fairchild has been far-reaching, arriving in the Scottish courts within months of the original ruling. The case of Patrick Gilbride had been ongoing since January, 2000 when a legal action for his 1998 mesothelioma death was initiated by his sons. Liquidation proceedings of Chester Street Insurance Holdings Ltd., formerly Iron Trades Holdings Ltd., the company which had insured five of the six defendants had delayed the trial long enough for the implications of Fairchild to be exploited. On April 12, 2001 defendants Blythswood Shipbuilding Co. Ltd. and Others moved the Edinburgh Court of Session to allow a late defence on the grounds it may be necessary to determine "the real question of controversy between the parties." Their late defence, now called the "English defence," was based on the Fairchild reasoning. Miller’s Insulation, the only defendant not insured by Chester Street, did not endorse the factual or legal arguments set out in the new arrangements. Frank Maguire, one of the Solicitor Advocates representing all three plaintiffs, objected to these legal manoeuvres; quoting extensively from Lord Reid (as in the Matthews’ case), Maguire maintained that this defence had no basis in law. Maguire and his colleague, Thomas Marshall, also urged the court to adopt a common sense approach; should it choose a purely scientific view of causation, asbestos victims would be penalized and defendants would escape liability. Lord Carloway reluctantly agreed to consider the new evidence "in the interests of justice, to reach a correct decision in this case." Hope that the Scottish court may disregard the Fairchild precedent can be found in section 13 of his opinion: "In the present case, for example, the issue may well turn on whether it can be said that the more asbestos fibres introduced into the lungs, the more likely it is that the disease will be contracted. If that were so, there would certainly appear to be room for the view that each person who has contributed to the totality of the fibres will be liable." The judge admitted that his decision will cause a delay of at least six months to the resolution of the Gilbride action and two associated cases.
According to a report by the Trades Union Congress, there have been 108 asbestos-related deaths in Carmarthenshire, Wales since 1997. Despite the high incidence of asbestos cancer, there is no dedicated lung cancer physician working for Dyfed Powys Health Authority at this time. Much of the asbestos illness can be traced to employment at the former Carmarthen Bay Power Station. Other reminders of Carmarthenshire’s asbestos legacy are pockets of environmental contamination such as that discovered on six acres of Llanelli’s Millennium Coastal Park in November, 2000. On July 12, 2001 The South Wales Evening Post reported that Carmarthenshire Council had underwritten the £31,306 clean-up operation of this site, previously part of the power station. According to George Harries, Director of the £30 million project: "It was the coastal erosion of that spot which caused the asbestos to be revealed and we will monitor the area to make sure no further problems exist."
Jeffrey Parsons knows about the national asbestos experience. Solicitor Parsons has represented hundreds of Welsh men and women affected by asbestos over ten years, including scores of former power station workers. Two of his more unusual cases are of interest. During the 1960s, Client A, a thermal insulation engineer, spent three years at Hosley Bay Borstal, Suffolk and H M Prison, Lewes. During his incarceration, he stripped insulation off pipes and prepared and applied new insulation. The defendants, which included the Home Office, accepted liability for his exposure and a pre-trial settlement of £21,000 was agreed. Client B died of mesothelioma; he had been occupationally exposed to asbestos while delivering, collecting and steam cleaning industrial hire equipment from power stations and steel works. A payment of £75,000 was accepted shortly before the trial commenced. Solicitor Parsons says: "There are definite mesothelioma hot spots throughout Wales related to former employment in power stations and asbestos factories. Unfortunately, the age of asbestos claimants is decreasing while the overall numbers show a steady rise. With terminally ill plaintiffs time is of the essence. It has been my experience that defendants exhibit little urgency in the processing of these cases. As a result, I have taken steps to bring this matter before the local civil judge in an attempt to set up a fast track system for all asbestos cases. In September, 2001 Judge Hickinbottom will be holding case management hearings to examine the judicial options open to Swansea County Court, the trial centre for southwest Wales."
The magnificent 18th century building at the corner of Kildare and Merrion Streets, Dublin is Leinster House. Since 1922, this historic structure has housed the two chambers of the National Parliament of Ireland: the Dail. Two recent High Court cases have proved that deteriorating asbestos-containing products in the basement of this building exposed government employees to a high risk of asbestos-related disease as recently as 1990. Raymond Brophy was awarded £60,000 compensation for pleural thickening in the case he brought against the Office of Public Works (OPW) in January, 2001. According to his solicitor, Bryan Fox, the plaintiff "only discovered there was asbestos present in the workplace in Leinster House when an independent contractor was brought in whose people were dressed like spacemen with protective clothing and breathing apparatus." While the Parliamentarians were passing laws regulating the use of asbestos in the upstairs chamber, workmen were continuously being exposed to asbestos lagging on miles and miles of pipes which ran through underground tunnels connecting Leinster House to the Department of Industry and Commerce, the Department of Agriculture, the National Museum and the National Gallery. Operative Stephen Fletcher worked from 1985-1990 assisting fitters and plumbers in the basement. During this time, he removed asbestos lagging and worked in an environment contaminated by crocidolite and amosite-lagged pipes. An expert witness testified that by the 1970s, the State was fully aware of the dangers of asbestos. Despite this knowledge, the dangerous conditions persisted; no warnings were given to the workers, no protective clothing or masks were provided. In 1984, a Department of Labour Inspector wrote a letter stating that all asbestos lagging in the basement was in poor condition and should be removed. He noted large lumps of asbestos on the basement floor. Although Mr. Fletcher has no asbestos-related symptoms, he is angry at the treatment he received and worried that he may contract mesothelioma. In a reserved judgment, Mr. Justice O’Neill accepted that the claimant is suffering from "reactive anxiety neurosis." The Commissioners of Public Works were held liable for failing to provide a safe place of work and the claimant was awarded damages of nearly £50,000. After the verdict, Bryan Fox, Mr. Fletcher’s solicitor, confirmed that twenty additional cases were being processed for people who had worked in the basement and in other contaminated areas of the public sector. Fox estimates that these cases could cost the government £1 million ($1.5 million) in awards plus another £1 million in legal costs.
Attempts by the Health and Safety Executive (HSE) to protect workers from asbestos exposure through new guidance manuals, discussions with stakeholders and campaigns to raise public awareness are having limited success. In April, 2001, the HSE published Introduction to Asbestos Essentials and Asbestos Essential Task Manual, both of which focus on work undertaken within the building maintenance sector. The former (HSG213) is aimed at those responsible for controlling or carrying out maintenance work with asbestos-containing materials such as employers, contract managers, site agents, safety representatives and self-employed contractors. The latter (HSG210) is for plumbers, electricians, computer installers, phone engineers and others whose work brings them into contact with asbestos. During consultation on proposals to amend the Control of Asbestos at Work Regulations (CAWR) last year, two key issues emerged which the HSE felt needed further study. Interested parties said the demarcation of responsibilities between owners and occupiers of non-domestic buildings required clarification for the new regulations to be implemented effectively. Support for the extension of the regulatory regime to domestic properties, including social rented housing, was another matter that called for additional dialogue with officials from the Department of the Environment, Transport and the Regions and representatives from housing associations, local authorities and trade unions. The new law, commonly referred to as the "Duty to Manage" legislation, would require building owners or occupiers to conduct asbestos surveys so that registers, noting the location and condition of all asbestos-containing products, could be compiled. This information would be used to forewarn tradesmen of potential risks. It has been estimated that surveys will be needed for 1-3 million properties. The HSE is sanguine about the twelve month delay caused by the need for a second round of consultations claiming that its long-range asbestos strategy which allows a year for raising awareness, a further year for "targeted stimulation" and a moratorium on enforcement proceedings until the third year remains on course. Despite the delay, the HSE went ahead with the August 8, 2001 publication of MDHS 100: Surveying, Sampling and Assessment of Asbestos-containing Materials. Setting out the government’s plans to introduce a "specific duty to manage the risk from asbestos-containing materials in premises," the forty page book covers survey planning, sampling and quality assurance procedures, site labelling and risk assessment. Useful information and photographs of asbestos-containing building products are included.
A rash of prosecutions throughout the UK is evidence of a continuing disregard for asbestos regulations. On June 28, 2001 the Emergency Works Unit of the Environment Agency (EA) was called to a development site at Princess Street, Wigan where HSE officers suspected that waste being used as hardcore contained asbestos. The Princess Street Nursery School was closed for the weekend while decontamination work was carried out. The health of schoolchildren at Parsons Green Primary School in Peffermill, Edinburgh may have also been endangered by exposure to asbestos debris created during building work in their classrooms last October. The HSE shut the school for five months while £600,000 worth of refurbishments took place. On August 9, Edinburgh Council and ESE, a West Lothian building contractor, were notified that they may face charges for the breaches of asbestos regulations at the school. Three months previously, children on a housing estate in East Kilbride, Glasgow were discovered using pieces of asbestos tile to draw on pavements. Analysis by the Environmental Health Department of South Lanarkshire Council confirmed the material, which had fallen from the ceiling of a public underpass, contained amosite (brown asbestos). On May 4, licensed asbestos contractors arrived to make the area safe. This incident is part of the on-going saga of a housing estate on which all the homes contain a variety of asbestos products. Although the Council has paid for decontamination of publicly-owned buildings, former tenants who purchased their properties have been instructed to fund similar work themselves. A spokesperson for the Telford Road Residents’ Association said: "It is only right that the Scottish Office or the Scottish Executive thrash out the whole question of asbestos in buildings and come up with a solution."
Throughout the 20th century, more than six million tons of asbestos were imported into the UK. Most of the fiber was incorporated into asbestos cement products, building, insulation and fireproofing material, much of which remains hidden within the British infrastructure. The discovery of asbestos products or waste materials by contractors often tempts them to take shortcuts. In July, 2001, twenty-five tons of waste containing crocidolite (blue asbestos) and amosite were dumped at sites in Cargo Fleet Lane, Middlesbrough and Rochester Road, Linthorpe. Both sites were accessible to the public. Jim Marshall, a local trade unionist, said: "Dumping asbestos is atrocious. There have been court judgements that say one fibre of asbestos can lead to asbestos-linked cancer. So dumping asbestos in this way is totally reprehensible." Because the fly tippers couldn’t be traced, the clean-up costs were paid for by the landowners. Other waste offences have led to fines for several companies over recent months. Illegally storing and disposing of 190 tons of asbestos-containing rubble led to a £4,200 fine for builders OJ Hallam and Son (Melton Mowbray Ltd.) in March, 2001; the company pleaded guilty at Melton Magistrates Court to three charges brought by the EA under Section 33 of the Environment Protection Act 1990 and the Special Waste Regulations 1996. Another EA prosecution also heard in March resulted in a guilty plea by the Welsh company G Walker and Son Waste Disposal Ltd. for a catalogue of offences committed from April to October, 1999. Local residents had reported the company on numerous occasions for poor management of the site. A manager for the South East Wales Environment Protection Agency commented: "The company’s flouting of good housekeeping and a general unwillingness to comply with its waste management license, despite the issuing of several enforcement notices, forced the agency’s hand." A £18,500 fine was imposed with £3,500 costs. On May 3, United Utilities was fined £6,500 with £1,352 costs by Southport Magistrates for breaching waste management legislation. The conviction stems from the burial of asbestos pipes on North West Water’s Mill Brow Water Treatment Works in Scarisbrick, Lancashire. After an August 7 hearing at Dyffryn Clwyd Magistrates Court, Brenda Physick and Maxine MacBride, licensees of the Nant Hall Hotel, were ordered to pay £2,800 for the illegal storing and disposal of controlled waste, including bonded asbestos, despite advice from EA officers and the issuance of an enforcement notice.
Six Australians will die every day from asbestos-related disease over the next twenty years. The projected toll of 40,000 deaths gives Australia the dubious distinction of being the country with the highest asbestos mortality per capita in the world. Pioneering research on new methods of treatment is being conducted at centres in New South Wales and Western Australia. In March, 2001, research grants totalling Australian $1.1 million ($600,000/£420,200) were announced in Sydney by John Della Bosca, the Minister for Industrial Relations. Oncologists from the Royal North Shore Hospital, a teaching hospital of the University of Sydney, are continuing experimentation with thalidomide, hoping to establish "a gold standard of treatment for mesothelioma." Using thalidomide by itself and in combination with low dose chemotherapy, Drs. Helen Wheeler and Nick Pavlakis are optimistic they can improve symptoms such as nausea, night sweats, pain and weight loss and possibly achieve tumour stabilization or even regression. Thalidomide inhibits the development of new blood vessels. According to Dr. Wheeler: "If a tumour doesn’t get any blood supply it’s starved of oxygen and nutrients and can’t grow." One advantage of this treatment is that it is given in small, regular doses; this means it can be tolerated by older mesothelioma patients. Dr. Wheeler feels strongly that "when you’re working in this area of research it’s critically important to consider not just prolongation of life but prolongation of quality of life." Also in Sydney, Professor Judith Black and her team continue to study the cellular and molecular mechanisms of mesothelioma. This cancer is unusual in that it spreads locally through the lung tissue; the mesothelioma cells produce enzymes which break down the cell environment and the multiplying cells move into the newly available space. Mesothelioma cell lines produce an enzyme called matrix metalloproteinase 2 (MMP2). In laboratory experiments, the production of MMP2 increases in the presence of a cell chemical messenger: TGF Beta. Dr. Black hopes to develop treatments which hinder the progression of the disease: "there’s various ways we could target this tumour. We could either find something that inhibits TGF Beta. If we could do this then we would get less MMP2 coming out. Alternatively, we could find something which inhibits the activation of MMP2 by MMP14 (an activating enzyme). If the MMP2 comes out of the cell and it’s not activated by MMP14 then it won’t do the chewing up of the surrounding territory around the cells to make room for mesothelioma." At the University of Western Australia, Perth, Professor Bruce Robinson’s group is studying the capacity of gene therapy to produce tumour regression: "We’ll be focusing, particularly, on immunotherapy or ways in which the host anti tumour immune system can be induced to recognise and destroy these tumours. We will be utilising some powerful approaches to induce immune responses and attempting to combine these approaches with more standard approaches such as chemotherapy to obtain a synergistic effect."
Compiled by Laurie Kazan-Allen