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|ISSN 1470-8108||Issue 48||Autumn 2002|
Since the beginning of the year, a series of diatribes attacking plans to deal with the UK’s asbestos legacy have appeared in the pages of a national newspaper. From the safety of The Sunday Telegraph’s newsroom, efforts to minimize occupational exposure have been condemned as "unnecessary" despite overwhelming evidence that exposure to all types of asbestos, including chrysotile (white asbestos), causes debilitating and fatal diseases.1 On January 13 and 27, February 10, March 17, April 21, August 18 and 25, and most recently September 8, columnist Christopher Booker censured proposed new regulations using such phrases as "asbestos cull," "one of the most unfortunate sleights of hand in scientific history," "the most costly health scare in history," "madness" and "the great asbestos scam."
While Booker made full use of his column to disparage amendments to the Control of Asbestos at Work Regulations, the right to reply was denied to others who were in a position to set the record straight. In a letter to the Editor, which remained unpublished, Dr. Robin Rudd wrote: "As a doctor who treats patients with asbestos induced cancers, which continue to increase in frequency, I was appalled to read Christopher Booker’s inaccurate and misleading Notebook item (13 January, 2002) claiming that white asbestos (chrysotile) is safe." Rudd pointed out that: "The World Health Organisation reviewed all the evidence and published a report in 1998 which concluded that white asbestos causes asbestosis, lung cancer and mesothelioma (an almost invariably fatal cancer of the membrane which surrounds the lung) with no evidence of a threshold dose below which there is no carcinogenic risk." In another unpublished reply, Dr. Nancy Tait, who has been working on asbestos issues for 34 years, challenged Booker’s assertions that chrysotile is safe when used in asbestos cement and that chrysotile does not cause mesothelioma, citing correspondence from the Secretary of State for Social Services (1982) Norman Fowler which acknowledged that mesothelioma had been identified in people who "have been exposed to chrysotile alone."2 On May 14, 2002, an Early Day Motion (EDM 1312) was signed by Members of Parliament concerned that recent articles "seek to portray white asbestos as a benign substance, and are confusing the debate by concentrating on the chemical structure of the material when it is the structure of the particle that is the pertinent factor and ignoring the balance of evidence that white asbestos is involved in the aetiology of mesothelioma cancer."3
The new use of asbestos ended in the United Kingdom in November 1999 when a national ban on chrysotile was implemented by the Labour Government, more than a decade after amosite (brown asbestos) and crocidolite (blue asbestos) had been banned. Since then, the Health and Safety Executive (HSE) has been working to raise public and professional awareness of the occupational dangers from the millions of tons of asbestos products hidden within the country’s infrastructure. According to the HSE, there are 800,000 commercial buildings which still contain asbestos in the UK.4 The Trades Union Congress thinks the situation is even worse and bases its proposal for a public register of asbestos in all British buildings on 850,000 commercial premises, 400,000 flats and 150,000 houses containing asbestos.5 Epidemiological data reveal that people most at risk of contracting asbestos-related diseases are plumbers, electricians, gas installers, builders and others whose work brings them into contact with asbestos-containing fireproofing, insulation and soundproofing materials in our schools, hospitals, factories, office buildings, leisure centers and homes. Recognizing the vulnerability of these groups, proposals were made to amend the Control of Asbestos at Work Regulations. After extensive consultation over a period of four years, it was decided that an explicit responsibility for managing asbestos risks in premises would be incorporated in new regulations due to be signed by the Minister in August-September, 2002. This, in fact, did not happen and the media launch of the new regulations planned by the HSE for October 3 was postponed on September 23.
In his articles, Booker draws on the views of "our expert John Bridle," who, was described on January 13 as a "professional expert… now UK scientific spokesman for the Asbestos Cement Product Producers Association". By August 18, Bridle was being referred to as a: "scientifically-trained surveyor" who is the "chief whistle-blower" on the "use of flawed science and imaginary statistics, to whip up a hysteria which is generating a bonanza worth billions, not just for manufacturers but for all those cashing in on the scare, from lawyers specialising in compensation claims to the 800-odd specialist firms licensed by the HSE, many of whom belong to the Asbestos Removal Contractors Association."
So, who is John Bridle? From articles in British publications over the last few years, we learn that he "retired from the asbestos cement industry in 1999 after 38 years working at all levels of the industry…"6 Records at Companies House confirm that Bridle held several directorships in the late 1980s. He was a director of: Cembrit Building Products Ltd., BM Building Fabrication Ltd., BM Products Ltd., G. R. Speaker & Co. Ltd., BM Slate Ltd., BM Chemicals Ltd. and M.R. Haulage Ltd. Mr. Bridle told Roofing Magazine: "The industry has given me an extremely interesting life… I have seen the world. I have met a lot of interesting people and I have an enormous fondness for an industry which I think the so called experts are going to destroy if they’re not careful." More recently, Bridle has been acting as the UK technical consultant to the Asbestos Cement Product Producers Association (ACPPA). His appointment was reported by the trade journal Roofing & Cladding & Insulation which explained: "The ACPPA is an international organisation with representation in 16 countries." The purpose of the group is spelled out by Bridle7: "the ACPPA is a world wide association dedicated to supplying scientific information for the safe handling of Chrysotile."
Obtaining information on asbestos trade associations is not easy. The following details about the Asbestos Cement Product Producers Association (ACPPA) were found in the 38th edition (published 2002) of the Encyclopaedia of Associations:
"Asbestos Cement Product Producers Association
This short extract is very valuable. It tells us that the office of the ACPPA is at the same address as the Asbestos Information Association/North America and the Association of Asbestos Cement Product Producers (AACPP). It also provides hints as to the connections of the ACPPA with the Canadian asbestos industry, the world’s largest exporter of chrysotile.9 The area code given for the ACPPA is 514; this is the area code for Montreal, Canada. The Director of the ACPPA is Denis Hamel. Hamel is also a director of the Montreal-based Asbestos Institute (AI), "a private organization established in 1984 by the companies producing asbestos, unions and the Canadian and Quebec governments"10 to "promote the safe use of asbestos in Canada and throughout the world." Mr. Hamel was appointed as the AI’s Director of Regulatory Affairs in 1997 having been "an advisor to the Intergovernmental Affairs division of the Quebec Government since 1995, Mr. Hamel was previously responsible for the asbestos file at the Ministry of Natural Resources for six years. In this capacity, he accompanied the Institute on numerous missions to Latin America, Europe and the United States. He also actively participated in the work surrounding the International Labour Organization conference, as well as Quebec’s opposition to the ban proposed by the EPA."11
The amount of support received by the Asbestos Institute from the Federal and Quebec Governments can be described as generous. Between 1984-1999, "Ottawa allocated $11 million to the institute and later allocated another $4 million for research and development, some of which went to medical research."12 This backing enabled the Institute to provide "financial aid for the creation of a dozen national industry associations in as many countries. These associations distribute health and safety information to their members, organize training seminars, coordinate dust-monitoring activities with the Asbestos International Association (AIA), coordinate government-industry relations and monitor developments."13 In 1999, the Asbestos Institute had "a budget of $520,000, 60 per cent of which is provided by the federal and Quebec governments, with the remainder coming from membership dues paid by the asbestos industry." Drawing on these funds, Director Hamel was able to make numerous overseas trips. According to Journalist Jim Young "Hamel travels all over the globe to promote ‘safe use’ and combat what he calls the zealotry of ‘green evangelists’ calling for bans. He has logged more than 100 such ‘missions,’ promoting the Institute’s voluntary agreement signed by buyers of Canadian asbestos."14
The Asbestos Information Association/North America (AIA/NA) "has represented the producers of chrysotile asbestos and manufacturers of products containing chrysotile asbestos in North America for more than 25 years."15 With an annual budget of $64,000, its one member of staff pursues the group’s objectives which are: "to provide industry wide information on asbestos and health and on industry efforts to eliminate existing hazards; to cooperate with government agencies in developing and implementing industry wide standards for exposure to asbestos dust… to increase public knowledge of the unique benefits and importance of asbestos products…" B. J. Pigg, the President of the AIA/NA, came to London in March, 1999, with a team of pro-industry spokesmen sent by the Asbestos International Association "to provide individual journalists with factual briefings" on products which "include chrysotile-cement building materials, friction materials, gaskets and certain plastics and coatings." This junket was timed to orchestrate media coverage during the period when plans to ban chrysotile were actively being considered by the UK Government and the European Union. According to the Encyclopaedia of Associations, B. J. Pigg is also President of the Association of Asbestos Cement Product Producers (AACPP). Because of the similarity of the names, it is easy to confuse this group with the ACPPA however, they are, according to the Encyclopaedia of Associations, two distinct groups. Despite the fact that they share the same Virginia address and the same phone and fax numbers in Montreal, they are two entities. The AACPP has one member of staff with a $36,000 budget and "promotes the worldwide acceptance of and confidence in asbestos cement products," while the ACPPA’s two staff members have $39,500 to promote and defend "the use of asbestos cement building materials."
Bob Pigg of the AIA/NA and AACPP provides a link to another pro-industry group: the Asbestos International Association (AIA). In 1999, he was the Director General of this group.16 In 2000, plans were made for an International Conference on Chrysotile Asbestos - "Strengthening Responsible Use," in New Delhi, India from November 22-24, 2000. According to literature obtained at that time: "The conference is being organised on behalf of the Asbestos Information Centre (India), Asbestos Cement Products Manufacturer’s Association (India), Asbestos International Association (USA) and Asbestos Institute (Canada).17 On the website of the Asbestos Institute, the AIA is noted as one of four sponsors, the others being: Canada Economic Development for Quebec Regions, Natural Resources Canada and Quebec Ministry of Natural Resources. A 12 page dossier detailing the events leading up to the French ban on asbestos was distributed in July, 1996 by the Asbestos Institute to "AIA Member Associations and other interested parties." Clearly, these groups work together.
Where is the AIA now? There is no listing for this group in the Encyclopaedia of Associations and no telephone listing for it in Virginia or in Montreal. This is curious, as the relocation of the Asbestos International Association to Montreal was praised in a 1997 press release from Natural Resources Canada.18 Ralph Goodale, Federal Minister of Natural Resources, commented: "The location of this head office underlines Canada’s international leadership and expertise in dealing with chrysotile asbestos issues… I am certain that future business conducted at the new AIA headquarters here in Montreal will benefit greatly from Canada’s wealth of expertise, and our deep commitment to the future viability of chrysotile asbestos markets around the globe." Speaking during the opening ceremony of an International Conference on the "Safe and Responsible Use of Chrysotile Fibres," Goodale underlined the Canadian Government’s ongoing support of the chrysotile industry by announcing a donation of half a million Canadian dollars for initiatives demonstrating that chrysotile asbestos can be "used safely." He said: "Thousands of jobs for people in rural Quebec communities depend on a prosperous Canadian asbestos industry, which exports more than half a million tonnes of asbestos products worth more than $300 million to 60 countries every year."
The Government of Canada, the Government of Quebec, the Asbestos Institute, the Asbestos International Association and the Quebec labor unions jointly organized the 1997 chrysotile conference. A conference press release reported that a new training programme for asbestos workers overseas was being developed by the "Asbestos Institute in cooperation with labour and the Governments of Canada and Quebec." The closeness of some Canadian trade unions to the asbestos industry has been commented on by several observers. The fluidity of movement from the unions to industry is illustrated by the career of Clement Godbout who in 1989 was the Director of the United Steelworkers of America – Quebec and who had become the President of the Quebec Federation of Labour by February 1998. Within three years, Godbout was working at the Asbestos Institute. In his capacity as a Director of the Asbestos Institute, Godbout reacted to proposals by the Government of Chile to ban asbestos. According to The Toronto Star, Godbout sent a letter in January, 2001 to Pierre Pettigrew, Canada’s International Trade Minister, in which he "launched a general attack against the Chilean government and a personal attack on Chilean Health Minister Michelle Bachelet. The letter accuses Chile of having a ‘cavalier’ attitude toward Canadian officials and urges Pettigrew not to tolerate it. It also accuses Bachelet of consciously ‘misinforming’ Canadian officials."19
It seems that Asbestos Institute officials have a penchant for meddling. On April 23, 2001, AI Director Denis Hamel wrote to Francisco Dornelles, Brazil’s Minister of Labor, in a transparent attempt to get Engineer Fernanda Giannasi, the most prominent anti-asbestos campaigner in Latin America, fired. Mr. Hamel commented: "It has come to our attention that one of your inspectors, Mrs. Fernanda Giannasi… is using her position in your ministry to promote her views, which are contrary to the stated policy of your country…We wonder if this person is officially mandated by your Ministry as a spokesperson on asbestos related matters, taking a position contrary to the official Brazilian policy. Is it part of her duties to invite foreign countries, buying Brazilian chrysotile fibres, to follow the European example and prohibit the use of this mineral? If this is not the case, we respectfully request that your ministry take the necessary measures so that Ms. Giannasi no longer abuses her professional responsibilities to promote her personal activities." When the content of Hamel’s communication became known, scores of letters, faxes and petitions of support flooded into the Minister’s office assuring him of the esteem in which the factory inspector is held by colleagues in Canada, the US, England, Scotland, France, Belgium, Italy, the Netherlands, India and Australia. An Early Day Motion lodged on June 16, 2001 condemned the behaviour of the Asbestos Institute: "an organisation that promotes the Canadian asbestos industry." MPs concerned about the allegations "that anti-asbestos campaigners are motivated by a commercial interest in its substitution," praised the work of "a Brazilian labour inspector who has given evidence world wide to trade unions and community groups campaigning for an asbestos ban."20
The arguments previously aired by Booker in the Sunday Telegraph are now being parroted by the Conservative party whose leader, Iain Duncan Smith, complained to Andrew Smith, Secretary of State in the Department for Work and Pensions, on August 21 about the HSE’s plans to "smuggle" in the new regulations while MPs were on holiday. The second official letter from the Conservative party was sent on August 28 by MP John Bercow, Shadow Minister for Work and Pensions, who said: "As recently as June, 2000, the HSE published a report by John Hodgson and Andrew Darnton about risks to health from asbestos exposure. They concluded that the risk from white asbestos was theoretically zero…" This statement is not actually supported by the data in the Hodgson and Darnton paper.21 According to Occupational Hygienist Robin Howie: "Hodgson and Darnton found a measurable mesothelioma risk down to very low levels of exposure. The evidence is unequivocal that exposure to chrysotile asbestos can cause lung cancer and mesothelioma; it is certainly not harmless to human health. Bercow’s statement ‘that the risk from white asbestos was theoretically zero’ is, to be polite, a misinterpretation of the paper." Owen Tudor of the Trades Unions Congress was critical of Bercow’s pro-chrysotile stance saying: "the evidence of the risks from white asbestos is so overwhelming that even the World Trade Organisation, a group with the primary aim of protecting free trade, accepted that the white asbestos ban introduced across the European Union is entirely justified." George Brumwell, General Secretary of UCATT22, decried the Conservatives’ position: "Shame also on Iain Duncan Smith, leader of the opposition, for opposing the latest Health and Safety Commission regulations on asbestos on the grounds that four years of consultation is not enough time. In those four years, more than 15,000 British people have died from asbestos-related diseases. They and their families really did not have enough time."23 Nigel Bryson, Director of Health and Safety of the GMB trade union, believes that: "What we are seeing is the death throes of a terminally ill asbestos industry. It has failed to convince the European Union, the Council of Europe, the WTO, IPCS24 and a host of other international organisations of its case. Yet gullible or vested interest individuals continue to step forward to promote its cause… It would be a crime on top of a tragedy if more workers were to die because the outrageous claims of the pro-asbestos lobby suceeded in subverting the real and proven health risks of working with white asbestos."25
Britain is a democracy and Christopher Booker is entitled to express his opinions. Perhaps, next time he embarks upon a campaign, however, he might make more of an effort to ensure that the information on which it is based comes from a source not linked to an industry which has caused misery and death on a global scale.
Since T&N was declared insolvent, over 5000 people have died from asbestos in the UK: 1600 from mesothelioma, 3,200 from asbestos-related lung cancer and 240 from asbestosis.26 Many of those still struggling with these diseases and relatives of others who have died might have considered taking legal action against T&N, formerly the biggest asbestos group in the UK. They are barred from doing so. As of October 1, 2001, when Federal Mogul, T&N’s parent company, filed for administration in the UK and Chapter 11 in the US, all legal actions against T&N and subsidiaries such as Newalls Insulation Company Ltd. and J.W. Roberts Ltd. have been stayed. The reaction to the financial manoeuvring which allowed the company to continue trading and securing new business while "ignoring the urgent needs of the many people who suffer the dreadful effects of asbestos exposure," has been widespread and angry (newsletter issues 45 & 46). The first anniversary of T&N’s insolvency is an appropriate time to ascertain if the position of potential claimants has altered over the intervening months.
Immediately the news broke about T&N, questions were asked about the company’s insurers. Since 1972, it had been mandatory for firms to have Employers’ Liability policies which would have covered industrial diseases; even before this date, many firms routinely purchased such cover. Despite the confusion and uncertainty generated by the insolvency and the initial lack of information supplied by the administrators, experts in the UK were able to provide clues about the company’s insurance history with the Midland Employers’ Mutual Assurance Ltd., The Royal Insurance Company Ltd., Lloyd’s of London Syndicates and European reinsurers. Early this year, as MPs were condemning the company’s avoidance of claims and asking detailed questions about its insurers, efforts began to piece together T&N’s insurance history throughout its seventy-eight years of operations. On February 15, Kroll Buchler Philips (KBP), the Court-appointed administrators, submitted a report entitled: T&N Limited and Subsidiaries - Insurance Policies Relevant to Asbestos Claims by UK Employees to the High Court of Justice, Chancery Division in London in the case of "Mr. L" v Newalls Insulation Company Ltd. Maximizing the funds available to UK creditors, including asbestos claimants, is the administrators’ role; the thoroughness of the research detailed in the report cited above signalled their intent to explore the enforceability of contracts which the insurers were contesting.
Having consulted with members of the Creditors Committees for T&N Ltd., Newalls Insulation, J.W. Roberts and T&N Shelf Twenty-Six Ltd., many of whom are solicitors representing injured workers whose cases have been stayed, it was agreed that the administrators would bring a case to establish the validity of the disputed policies. Should the Courts decide that the policies are enforceable, the costs to the insurance industry would be substantial not only for the asbestos claimants but for others covered by "exclusion clauses" which could be nullified in the future. After exploratory discussions with the insurers proved fruitless, Simon Freakley, head of the KBP team, authorized the law firm of Denton Wilde Sapte (DWS) to issue proceedings in the case of T&N Limited and Others (in administration) vs. Royal and Sun Alliance Insurance PLC and Others in late May, 2002 in which action "Mr. L" was joined as a representative asbestos claimant. The defendants included the Lloyd’s of London Bryan Smith syndicate. Solicitor Neil Griffiths, from DWS, admits that the administrators’ hopes for a full hearing before the end of July 2002, proved to be "optimistic." During the July 8 hearing before Mr. Justice Neuberger, it became obvious that the claims and counterclaims relating to exclusions and nondisclosure thrown up by this "defining case," were multiplying. The Royal maintained it had no liability for any asbestos-related injuries as its policies excluded "liability in respect of pneumoconiosis or pneumoconiosis accompanied by tuberculosis." Pneumoconiosis was defined as "fibrosis of the lungs due to asbestos dust and includes the conditions of the lungs known as dust reticulation." Should these exclusions not be upheld, the Royal and Lloyd’s believed they were entitled to "avoid" payment of compensation due to T&N’s lack of disclosure of relevant information. The defendants asked the court to order T&N to provide documents from its vast corporate archive relating to: the knowledge of medical risks, the number, types and particulars of asbestos compensation claims and health issues arising from occupational exposure to asbestos.
The so-called "exclusion" is, so the administrators say, invalid under the terms of the Employers’ Liability (Compulsory Insurance) Act 1969, the purpose of which was to shift the risks of corporate bankruptcies from employees to insurers. Under the Royal policy with T&N, the insurer has, in the first instance, to pay compensation for asbestos claims which is later recouped from T&N. There are stipulations in the policies issued by Lloyd’s of London Syndicates that monies paid out by the insurer for asbestos claims will be reimbursed by T&N. The fact that T&N is unable to do so at this time in no way affects the liability the insurer has to claimants. Information about asbestosis, asbestos-related lung cancer and mesothelioma was public knowledge by the time these insurance policies were issued making the non-disclosure argument moot.
At a court hearing before Mr. Justice Lloyd on September 25, 2002, DWS were set to request that the "avoidance defence" be struck out. However, at a late stage in the proceedings, Lloyd’s sought permission to redraft their case which was granted with costs being awarded against them. The court instructed Lloyd’s that their new case must be fully particularized within 14 days. The administrators will then have 14 days to respond. Should the litigation proceed according to the current timetable, the case will be heard for 5-7 days starting on January 23, 2003 at the Chancery Division of the High Court in London.
The £500 million (US$725 million) layer of insurance cover, known as the Curzon or Hercules policy, purchased by T&N in 1996, also remains out of reach. These funds cannot be accessed until "the total number of claims received after June, 1996 exceeded £690 million." The stay on all litigation against T&N means that this figure is unlikely to be reached for some time.
To asbestos claimants the twelve month stall in processing claims is frustrating and unfair, heaping insult upon injury. For this reason, UK solicitors have recommended to the US Asbestos Creditors Committee of Federal-Mogul that interim payments be made to T&N’s UK victims. Solicitor Anthony Coombs, of the Manchester-based firm of John Pickering & Partners, represents asbestos claimants and is a member of three T&N Creditors Committees.27 He worked closely with the staff at KBP to develop a scheme which would "extricate the British claims from the morass of the U.S. Bankruptcy." Coombs writes: "The sums involved in the British claims historically and the projected claims in this country are tiny compared with American sums. There are approximately 500 outstanding UK employee asbestos disease claims against the T&N Group. These could easily be settled for £20 million ($35 million), possibly less. This is a drop in the ocean when you consider that individual U.S. awards can be several million pounds for just one case. The massive professional costs which continue to be incurred on both sides of the Atlantic in this combined Chapter 11 Bankruptcy and Administration make it imperative that there is a rapid exit from this process for the British victims, while there is still money to pay them. The Administrators in Britain are sitting on £70 million, some of which should be used now to compensate asbestos victims with claims brought or capable of being brought in our courts. We should do everything we can to extricate these British claims from what could easily become a very long process, in which the only immediate beneficiaries will be the lawyers and accountants involved professionally in the Bankruptcy and Administration proceedings. Some of the money going to them should go now to the people in this country suffering from asbestos disease caused by the T&N Group." Although the administrators are "vigorously championing this scheme," such a move is unprecedented. Lawyer Steven Kazan, a member of the US Committee and a backer of Congressional action on asbestos litigation which will give priority to seriously ill claimants, says: "While I cannot predict what the Committee will ultimately decide, I certainly hope it will recognize the great injustice being done to T&N’s seriously injured British victims and join me in supporting this proposal." With US attorneys saying there is no basis for such a scheme under the country’s bankruptcy laws, the outlook is not good. Whatever happens, it will be too late for "Mr. L". He died from mesothelioma on September 26, 2002.
1 On June 18, 2002, a Congressional bill was tabled entitled: Ban Asbestos in America Act S. 2641 which would end the use of asbestos in the US by 2005.
Compiled by Laurie Kazan-Allen