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|ISSN 1470-8108||Issue 55||Summer 2004|
In the UK, the dramatic upward trend in the incidence of mesothelioma, a type of asbestos cancer, is starkly revealed by a graph contained in the publication: Health and Safety Statistics Highlights 2002/03.1 The text accompanying the diagram describes a situation which has become, sadly, all too familiar:
Mesothelioma, like other asbestos-related diseases, is characterized by a long latency period. As little can be done to prevent the onset of disease once hazardous asbestos exposures have occurred, it is essential that people who contract these illnesses receive the support and care which is needed. Recognizing the regional variations in the availability of medical treatment and compensation, this year's House of Commons' asbestos seminar assessed the status quo in Scotland, Northern Ireland, Wales and England. The May 19 session: Asbestos Round-Up, held under the auspices of the Asbestos Sub-Committee of the All Party Parliamentary Occupational Safety and Health Group and chaired by Michael Clapham MP, was opened by the Rt Hon Jane Kennedy MP, Minister of State for Health and Safety, who spoke of the misery caused by the UK's asbestos legacy; pledging to further lower the control limits of asbestos in 2006, she was optimistic that new provisions of the Control of Asbestos at Work Regulations (CAWR) would reduce the frequency of occupational asbestos exposure.
Introducing Councillor Andy White, leader of West Dunbartonshire Council (WDC), and Tommy Gorman, a WDC Welfare Rights Worker, Scottish MP Tony Worthington highlighted progress made on asbestos issues by the Scottish Parliament including the streamlining of litigation in fatal disease cases such as mesothelioma. Councillor White outlined the parameters of the research undertaken by the Convention of Scottish Local Authorities (COSLA) Working Group on Asbestos; the comprehensive COSLA report, published in 2001, examined:
It is noteworthy that five out of the ten COSLA recommendations deal with support for asbestos victims; the need for up-to-date and accurate information on welfare benefits and compensation and the importance of victims' groups are acknowledged. Councillor White stressed that all advice givers must be properly trained and accredited. Other Scottish developments, including a proposal that the Scottish Executive work more closely with COSLA on asbestos, a forthcoming asbestos seminar in Clydebank and the need for international cooperation were discussed by Tommy Gorman.
Due to the May 20 re-launch of the Northern Irish Group: Justice for Asbestos Victims (JAV) in Stormont, a JAV spokesperson was unable to attend the Westminster session. In place of a presentation, a letter addressed to the Sub-Committee was read by Tony Worthington. The letter described JAV's formation in 2002, its membership, and problems such as the lack of appropriate medical treatment and the dearth of social services and information for asbestos victims and their families in Northern Ireland. After the death, in October 2003, of JAV's Founder and Chairperson Robbie Brown, the group entered a testing period. In January, Robbie's widow June took up the reins as Chairperson; on May 20, two years after Robbie first lobbied Northern Irish politicians, the group was re-launched at an event sponsored by all the main political parties: the Alliance Party, Sinn Fein, the Social Democrat and Labour Party and the Ulster Unionist Party.5 With this cross-party backing, JAV will continue: to push for legislative change, more palliative care, quicker compensation, wider prescription of disease for benefits and address the problem of asbestos in domestic as well as commercial properties.
In the introduction to the next segment of the agenda, asbestos issues in Wales and England, Lawrie Quinn, MP for Scarborough and Whitby, explained that in his constituency many of those contracting asbestos-related diseases were retired railway workers; having worked for British Rail as a civil engineer for nearly twenty years, Mr Quinn was aware of the occupational risks asbestos posed and supportive of the work done by the Asbestos Sub-Committee. Before beginning his presentation, Welsh Solicitor Jeffrey Parsons introduced his four female colleagues as the founding members of the Cardiff-based asbestos victims' support group: Asbestos Awareness Wales (AAW); each of the women had lost her husband to asbestos disease.6 Significant progress has been made in expediting asbestos litigation in the Welsh courts over recent years; changes which have increased judicial consistency and expertise, fostered cooperation between parties, led to early identification of issues and settlement of cases and lowered costs include:
Unfortunately, medical care for asbestos victims in Wales is patchy and inconsistent; there is no process guaranteeing a minimum standard of medical care for sufferers.
In a thorough analysis of UK compensation for asbestos-related lung cancer, Solicitor Sally Moore reported:
There are very few reliable statistics concerning the numbers of cases of asbestos-related lung cancer. In 1998 there were only 40 cases of prescribed disease D8 lung cancer accepted by the Benefits Agency; in 2001 the figure increased to 43. Legal cases for compensation are a rarity. Scientists predict that for every case of mesothelioma there are one and possibly as many as two cases of asbestos-related lung cancer.With the present annual death ratefrom mesothelioma creeping to 2,000 that indicates a staggering level of cases that are not being recognized let alone compensated.
Ms. Moore concluded that:
A significant level of asbestos-induced lung cancer claims are not being identified or pursued and the present requirements set for receipt of government benefits are too onerous; furthermore, they are out of step with current statistical, medical and legal thinking as illustrated by: papers published by Pohlabeln (2002), Martinschnig (1997) and Gustavsson (2000), the Helsinki Criteria,7 legal decisions in Australia, the Fairchild ruling (UK)8 and a move towards a general consensus amongst UK medical experts that asbestosis and pleural thickening are not precursors to asbestos-induced lung cancer.
The presentation: The Queen's Bench Division 'Fast Track' for Mesothelioma Claims by Master Steven Whitaker,9 a procedural judge of the Supreme Court, detailed the pragmatic response by the Royal Courts of Justice to the UK mesothelioma epidemic. Mentioning recent decisions in the Barker and Maguire cases, Master Whitaker strongly expressed his determination to streamline the system so that claims for living plaintiffs are settled within four months from issue of the claim form and for their surviving relatives within seven months; early admission of liability and the use of joint expert witnesses to reduce litigation costs and expedite settlement are encouraged. Defendants are expected, Master Whitaker said to demonstrate to me that they have a real prospect of success on at least one liability issue before I will allow a liability trial. Largely due to a more realistic approach by lawyers on both sides, progress is being made: The majority of claims in England and Wales are settled before they reach a trial. Unfortunately, however, lengthy delays in obtaining government records of National Insurance or tax payments can prevent the timely disposition of urgent cases; it is not unusual for the Inland Revenue to take 13 weeks to respond to solicitors' requests. MPs were requested to call for urgent action to speed-up disclosure of employment records in mesothelioma cases. Master Whitaker was also dismayed by procedural rules which prevent the interim payment of damages in a personal injuries case brought by any claimant where liability is admitted; even when the defendant is a wealthy corporation, if it was not insured or was not a public body, the Judge is not permitted to order an interim payment of damages. Consultation by the Department of Constitutional Affairs on this issue is on-going and support from MPs would be welcomed.
Speaking about a UK Mesothelioma Strategy, Dr. Jeremy Steele, a Consultant Medical Oncologist from St. Bartholomew's Hospital, confirmed the inconsistency of UK medical treatment; while palliative care has become more widely available, chemotherapy and surgery have not. Dr. Steele proposed that a mesothelioma reference consultant be designated in each cancer network in England and Wales; this individual would review all mesothelioma referral letters and clinical decisions. Regarding UK mesothelioma research, Dr. Steele warned that should the Human Tissue Bill be enacted as originally drafted, the essential use of tissue samples, obtained from the national tissue bank, would become illegal as the pleural biopsy material on the slides could have been obtained without the consent of the patients or their relatives.
The final presentation of the afternoon was by Dr. Greg Deleuil, medical adviser to the Asbestos Diseases Society of Australia. With the use of a wonderful selection of photographs, Dr. Deleuil described the urgency behind Australia's mesothelioma research program. For over twenty years, crocidolite (blue asbestos) was mined in the town of Wittenoom; during that time, more than 6,000 resident children received hazardous domestic and environmental exposures. Data produced by Australian epidemiologists show the following lifetime risks of contracting mesothelioma:
With the passage of time, many of the Wittenoom children have contracted mesothelioma; many more will die prematurely unless a cure is found. The Australian reaction to the country's worst industrial disaster in our history has been impressive. Commenting on the well-orchestrated and focused national programme, Professor Bruce Robinson, a leading Australian mesothelioma researcher, recently told a UK journalist:
we agreed to throw the best of modern medical research technology at this disease to give us the chance to find something that can help us and the rest of the world As well as a small number of centres of excellence, we have a national co-operative research group, sending tissue and blood samples between centres for different avenues of research; diagnostic methods, new blood tests, and the mechanisms that initiate this disease. We're pretty well co-ordinated over here.10
Dr. Deleuil shared his excitement at some of the latest Australian breakthroughs:
Dr. Deleuil ended his talk by presenting to Michael Clapham, Chairperson of the seminar, a copy of the Australian book Lean on Me,11 by Lorraine Kember; the book is a gripping account of the tragic asbestos death of Lorraine's husband Brian, a Wittenoom child. The Kembers' family life was shattered after thirty years by the shocking news that Brian had contracted pleural mesothelioma:
I felt as if I had fallen off the planet, my distress intensified by the reaction of our friends and acquaintances who were shocked over our tragic circumstances, and not knowing what to say or how to act, avoided us.
At the local club, instead of the enthusiastic welcome we were accustomed to, we were greeted with silence, whispers or exaggerated attempts at joviality. It was as if we had lost our identity. They no longer saw us as Brian and Lorraine; we have become the objects of pity, a sad reminder to all of the fragility of life.
Through her painful honesty and touching poetry, Lorraine reveals the physical and emotional traumas endured by mesothelioma sufferers and their families. Having discussed methods of pain management, and their failings, Lorraine segues into rarely mentioned human dysfunctions such as constipation and night sweats both of which have major impacts on quality of life. The personal journey this book documents and the humanity of its author are truly inspirational.
In the wake of the House of Lords decision in the Fairchild case, defendants have been exploring alternative defences for negligent employers who exposed workers and their relatives to asbestos; recent decisions by the Court of Appeal and the High Court upheld plaintiffs' verdicts in cases brought by Teresa Maguire and Sylvia Barker. Sixty-seven year old Mrs. Maguire contracted mesothelioma from exposure to the asbestos-contaminated clothes her boilermaker husband wore whilst working at the Harland & Wolff shipyard. The argument put forward by the defence, that an awareness of the risks of domestic asbestos exposure would not have existed amongst shipyard employers in the early 1960s, was rejected by Mr. Justice Morland on March 26, 2004:
I do not accept that Harland & Wolff in the period 1961-1965 needed prophetic vision to foresee that their employees' wives, in the typical position of Mrs Maguire, would be exposed to considerable quantities of asbestos dust each working day when their husbands returned from work or that such wives would be exposed to substantial quantities of asbestos dust when brushing down, shaking and washing their husband's clothes with the attendant risks of serious injury to health which were well-known by the that time even if substantially ignored by shipbuilders such as Harland & Wolff who undoubtedly took no effective steps whatever to protect Mr. Maguire from the risk
From at least the publication of Merewether and Price in 1930 Harland & Wolff were or should have been aware of the risk of serious injury to health from inhalation of asbestos dust. Certainly by the late 1940s the incidence of lung cancer from exposure to asbestos dust was recognised. In my judgment the risk of serious injury to Mrs. Maguire's health was, and should have been by Harland & Wolff, reasonably foreseeable, indeed obvious, in the period 1961 to 1965. They took no steps to safeguard her from the risk, or indeed her husband.12
Damages of 82,000 ($150,000) were awarded; the defendants have appealed.
Mr. Barker died of mesothelioma in June, 1996 at the age of fifty-seven; from 1960-68, he had worked as a laborer for John Summers and Sons Ltd., a company which was subsequently acquired by Saint Gobain Pipelines. During this employment Mr. Barker was exposed to asbestos as a laborer in a cold strip mill, the traffic department and the Marsh area, the galvanising section of the works:
In that area, there were four furnaces, the insulation for which consisted in part of asbestos in the form of boards, wool and blankets. There were regular leaks which required repair. To discover the location of leaks in the furnaces, the insulation had to be stripped away to provide access to the joints. Clouds of asbestos would escape and large pieces of asbestos broke off. Dust would gather on the floor. The labourers from the pool, of which the deceased was a part, would be required to sweep it up. The exposure was described by the expert evidence as 'heavy, regular, frequent and of long duration'.13
Although the defendants admitted that they negligently exposed Mr. Barker to asbestos in breach of the duty owed to him as an employee and that this exposure contributed to the risk of mesothelioma, they argued that there should be an apportionment of damages amongst unsued employers and the deceased, who had also during periods of self-employment, been exposed to asbestos. Both the High Court (May 23, 2003) and the Court of Appeal (May 5, 2004) declined to apportion damages on a time exposed basis; the Judges agreed that self-employment by the claimant did not prevent him from recovering damages on a full liability basis from the defendants. Lord Justice Kay remarked:
In the case of a person whose exposure outside his employment with the defendant is during a period of self-employment, the application of the Fairchild approach will give rise to no greater degree of injustice or potential injustice to the defendant than would be the case where the other exposure was during employment with a third party. In contrast, exclusion of all liability because there has been a degree of exposure during a period of self-employment, however limited that exposure, provided it was not so insignificant as to be disregarded, would be to run the risk of manifest unfairness to a claimant on precisely the same basis that the House of Lords thought demanded a modified approach in the case of multiple employment.
Lord Justice Keene concurred:
I conclude, therefore, on the causation issue that there is no reason for the defendant to escape liability in cases such as the present merely because the claimant's injury may have resulted from exposure during the time when he was self-employed. It is not a pre-condition of liability under the principle of Fairchild that the injury must have been caused by someone's tortuous act, so long as it is established that the defendant in breach of its duty to the claimant exposed him to the risk of contracting mesothelioma and that risk eventuated.
The appeal court upheld the High Court's finding of Mr. Barker's contributory negligence in exposing himself to asbestos whilst self-employed; after a 20% reduction of damages, the sum of 152,000 ($275,400) was awarded. Although the Court of Appeal refused leave to appeal, defendants are petitioning the House of Lords.
Solicitor James Thompson, of John Pickering & Partners, who represented both Mrs. Maguire and Mrs. Barker is appalled:
The defendants are sitting on the money the courts have ordered them to pay. Mrs Maguire died on May 3, 2004, in uncertainty whether her compensation would be paid or not; her husband, Jimmy, still doesn't know. For Mrs. Barker, it adds insult to injury: her case was held up by the appeals in the Fairchild case for seventeen months by the insurance industry's tactics, before her case even reached a hearing. It is to be hoped that the courts will reject the latest appeal attempts and that both these families will be spared further delay in the payment of compensation.
Over the last few months, reports have been circulating about attacks by some insurers and defendants on awards for pleural plaques. Currently, provisional awards of 5,000 to 7,000 ($9,130-$12,800) and final awards of 10,000 to 22,000 ($18,260-$36,520) for injury to the pleura, anxiety caused by the diagnosis and the future risk of contracting a serious asbestos disease are not unusual. Seeking to overturn twenty years of case law and practice relating to pleural plaque litigation, defendants are now arguing that: plaques are not a compensatable injury and damages awarded are too high. Eleven pleural plaque test cases are due to be heard in the Manchester High Court in November, 2004.
3. Turner and Newall: another insult? by Jason Addy, local resident
Nestled in the Spodden Valley of Rochdale is the site of the former Turner Brothers Asbestos (TBA) factory.14 The site, once regarded as the jewel in the crown of the Turner & Newall (T&N) empire is vast; the manufacturing facilities occupied 30% of the 100 acre estate.15 The world's first asbestos mill, which began operations in 1879, grew into the largest asbestos textile factory in the world; the processing of asbestos on this site continued for 115 years. Production levels at Rochdale increased throughout the 1960s and well into the 1970s. According to a company publication, TBA was producing 2,250,000 yards of asbestos cloth and 5,500,000 miles of asbestos yarn a year.16 This scale of asbestos manufacture led to the creation of substantial amounts of contaminated waste and debris. A TBA document from 1957, describing the factory's asbestos dust filtration system, noted: the total weight of dust recovered in the filter rooms weekly is about 15,000 lbs., all of which is dumped to waste. Additional routes for contamination of the environment existed. Until the early 1960s, asbestos arrived at the rail depot in Shawclough and was transported by overhead ropeway into the main factory; large hessian sacks of asbestos were dropped down a concrete chute into the Harridge Mill. Local residents described how as children they played on dusty bales of raw asbestos in the railway sidings; the whole area was a haze of dust with accumulated fibers hanging off what were known as the asbestos trees.17
Over the past few years, Federal Mogul, which acquired the site in 1998 when it bought Turner & Newall, has demolished many of the former asbestos production areas. Rumors about the sale of the Rochdale site have been rife. Solicitor Anthony Coombs of John Pickering & Partners wrote to the Administrators of Federal Mogul about land contamination at Rochdale. In their reply, the Administrators described the site as: an asset of dubious value (possible [sic] even a liability). In May 2004, the local newspaper, the Rochdale Observer, announced that the estate had been sold and that the new owners were a local building consortium called MMC Developments Ltd. and an offshore company called Rathbone Jersey Ltd. On Thursday, May 13th, security fencing was hurriedly erected to prevent public access to much of the site. By the following day, almost a mile of steel meshing was in place. At 2 a.m. on Saturday May 15th, the bulldozers rolled in and by 7 a.m. teams of forestry contractors had begun work accompanied by plain clothed security guards. The valley filled with the buzz of chain saws.
Local residents alerted their neighbours to the fact that the woodland around Turners was being felled. With a feeling of unreality, we went down to the main factory entrance to see what was going on. The forestry contractor ushered us into an office for an impromptu meeting: we were told that everything being done was perfectly within the law. Yet, everything was being cleared with great haste. Woodland covering more than two football pitches was cleared that Saturday. Hundreds of trees went that weekend and many more were planned to go in the weeks to come. We were warned that if we made too much fuss, the developer may overreact to our protests. We were told that he was prepared to spend tens of thousands of pounds to lift Orders and Injunctions then he would chop everything down. We were told that the land is not yet subject to planning permission, so he can do with it what he likes. Concerned about these developments, more than two hundred local residents and former TBA workers attended an emergency meeting held that week. A wide range of public bodies are now involved in investigating the developer's actions. These include:
While the preceding narrative describes the visible damage done to the environment, the community's gravest concern is for the invisible hazards which this upheaval could cause. Thousands of people have died from occupational and environmental exposure created by TBA and its products. Through the actions of the developers, many more could be exposed to asbestos left on the site; a former T&N Health and Safety officer told local people that TBA was licensed to dump tons of industrial waste in a capped coal mine on this site; it was, he said, company policy to monitor local groundwater for asbestos waste. Britain in 2004 is in the middle of an asbestos epidemic; any reckless development of the Spodden Valley could ensure that Rochdalians continue to contract these lethal diseases well into the middle of the century. The sale of Turner and Newall to Federal Mogul does not absolve the UK's former asbestos giant from responsibility to a community which has experienced ill health and death from its corporate negligence. Residents in Spodden Valley are appalled that adequate precautions to prevent any imprudent development of this site were not put in place prior to its sale; surely, we were owed that much!18
A report: Rising from the Dust,19 released at a public meeting held at Barking Town Hall on June 10, 2004, attempts to explain why Barking and Dagenham, the sickest borough in London, has the UK's highest incidence of female mesothelioma and the 10th highest, after shipbuilding regions, for males:
The exceptionally high asbestos mortality rate in this part of London is a marker of how hard the area has been hit by the legacy of Cape Asbestos, the industrial killing machine that used to be in Harts Lane... The death rate for women from this cancer is usually six times less than men, with women suffering around 15% of the total number of deaths from mesothelioma every year. Women's asbestos exposure is often categorised as environmental exposure, including washing dusty overalls of men working with asbestos. But in the Harts Lane Cape factory women actually worked alongside men.
Environmental as well as occupational asbestos exposure has been rife in the borough for decades. Fred Lodge died of mesothelioma aged 39; he had never worked with asbestos, but had the misfortune to live near the Cape factory. Despite the fact that the asbestos works are long gone, contamination of Cape's former site, on which a housing development was built, persists. In 1997, asbestos was dug up during construction work on the Harts Lane Estate.
In recognition of the area's asbestos problem, the local Unison branch, in cooperation with the London Hazards Centre, has announced the formation of an asbestos support network which will provide practical and emotional support for asbestos victims and their families, help raise public awareness of asbestos problems within the community and campaign for a global asbestos ban. Plans for drop-in sessions, home visits, assistance at medical appeal tribunals, lobbying of Westminster politicians and briefings for nurses, social workers and others are being made. For information contact: Tony Browne, Barking and Dagenham Unison (020 8227 2102 or email: firstname.lastname@example.org) or Margaret Sharkey, London Hazards Centre (020 7794 5999 or email: email@example.com).
2 There were 1631 mesothelioma deaths in 2000.
5 According to the JAV letter, although the DUP will not formally co-sponsor an event with Sinn Fein, they will be in attendance. So all the parties will be united at our launch, in their support of our fight against asbestos.
6 The group was set up in 2001 and is run by volunteers; AAW has concentrated on helping asbestos victims and raising money for medical research into asbestos-related conditions; helpline: 07775 815705 9 a.m.-9 p.m.; email: ABaylissHowells@aol.com;
7 Proceedings of an International Expert Meeting on Asbestos, Asbestosis & Cancer. Finnish Institute of Occupational Health, Helsinki 1997.
8 The House of Lords accepted in the case of a mesothelioma claimant (Fairchild) who couldn't prove his case on the balance of probabilities that it was enough to demonstrate a contribution to risk. Fairchild was a mesothelioma case it has not been applied to a lung cancer case. However, in his Judgment, Lord Bingham did not rule out its application in other cases and it must be arguable that it would apply in a lung cancer case.
10 Peter Martin. Dust to Dust. The Sunday Times. May 16, 2004.
12 Approved Judgment of Mr. Justice Morland: Teresa Maguire-v-Harland & Wolff Plc. 26th March, 2004.
13 Approved Judgment of Lord Justices Kay, Keene and Wall: Sylvia Barker-v-Saint Gobain Pipelines PLC. 5th May, 2004; page 12, point 7.
14 It was also the postal address for the independent Asbestosis Research Council.
15 Within a few short years of its formation in 1920, Turner & Newall Ltd. became the UK's largest asbestos group and was referred to as the Asbestos Giant.
16 T&N publication: The First Fifty Years 1920-1970.
17 The dire occupational and environmental conditions at this site have been reported in a number of books including: Asbestos Killer Dust by A. Dalton, Magic Mineral to Killer Dust by G. Tweedale and Asbestos: Medical and Legal Aspects by B. Castleman.
19 Rising from the Dust can be viewed on the web at: http://www.lhc.org.uk/members/pubs/asbsupport/rising.pdf