ISSN 1470-8108 Issue 57 Winter 2004-05

Contents:

1. Global Asbestos Congress 2004
2. Mesothelioma Massacre
3. New Attacks on UK Asbestos Claimants

1. Global Asbestos Congress 2004

The global campaign to ban asbestos took a giant leap forward with the success of the Global Asbestos Congress 2004 (GAC).1 The attendance in Tokyo of representatives from 40 countries, the presence of distinguished international speakers, the interest of Japanese, Belgian, Brazilian and South African media teams and the continual discussions in hallways and at social events were physical manifestations of an unquantifiable “buzz” generated by bringing together so many people affected by asbestos. From the comprehensive agenda to the bell ringing protocol to the identifying white jackets worn by the scores of volunteers, the conference had been expertly planned by the GAC Organizing Committee; since 2002, committee members had worked assiduously to generate political backing and raise funds for this landmark event, the first global conference to focus on the repercussions of asbestos use in Asia.

More than 800 delegates attended plenary and workshop sessions held between November 19-21, 2004. Presentations from leading asbestos experts addressed a range of medical, legal, epidemiological, biochemical, environmental, social and political issues; the simultaneous translation from English and Japanese, available at all conference sessions, facilitated communication. Representatives of international labor federations and hundreds of Asian trade unionists were in attendance, underlining the growing awareness of the toll being paid by building workers, in patricular, for hazardous asbestos exposures. The presence of Japanese, Indian, Australian, Canadian, American, Welsh and Northern Irish asbestos victims and family members personalized a worldwide epidemic which is killing more than 100,000 people every year. Members of the Japan Association of Mesothelioma and Asbestos-Related Disease and their Families extended a warm welcome to all GAC delegates from their booth on the 3rd floor of the conference centre; colorful chains of paper cranes, a symbol of peace, which gaily decorated their stand were presented to visitors in the hope that our mutual wish for an asbestos-free future would become a reality. Japanese asbestos widows, dressed in traditional kimonos, met other women from Europe, North America and Australia who had also experienced the asbestos death of loved ones. Commenting on GAC 2004, June Brown, Chairperson of the Northern Irish group Justice for Asbestos Victims (JAV),2 said:

“How can one sum up such an experience as the Global Asbestos Congress 2004? What unity and encouragement to have met, embraced and gelled with so many like-minded people. Asbestos knows no boundaries, no race and no creed. Tokyo was proof of that.

Robbie Brown may just have been another name and a fighter for JAV to some people but to me, his wife for 39 years, he was my life-long husband, dearest and closest friend and a wonderful father and grandfather. Reflecting on the Tokyo Congress, I remember the heartache of the Japanese widows and the bond established through our mutual grief. I am now more determined than ever to continue the campaign to end the global injustice caused by asbestos not only in Robbie's memory but in memory of all those who went out to do an honest day's work only to find themselves, years later, fighting for every breath they took.

Well done to everyone who took part in the Congress: the dedicated workers, the wonderful speakers and all who organized such a tremendous event.”

At the GAC 2004, conversations took place which transcended subject disciplines and national borders; Japanese asbestos victims spoke to Polish technical experts, American doctors spoke to Asian trade unionists, European lawyers and civil servants spoke to Japanese shipyard workers. While academic and scientific presentations were made, the human dimension of the asbestos tragedy was center-stage at all times. The asbestos victims' panel, which was part of Plenary Session 3: Empowerment of Victims and Their Families, was an enlightening and emotional event. The courage and openness of the speakers was much-appreciated by GAC delegates who rose to their feet to give the panel a standing ovation. The stunning images in Akira Imai's photographic exhibition Asbestos or The Silent Time Bomb: Message from the Victims left little doubt about the heartbreaking impact asbestos has had in Japan. Entries to the visual message competition displayed on the third floor illustrated the interest of young people in Japan's asbestos epidemic. Poster presentations from Northern Ireland, Wales, Croatia, Australia, Poland, Italy, U.S., Vietnam and Pakistan described the efforts of researchers and activists to quantify and assist the injured in their countries.

It was appropriate that the first multinational asbestos conference on Asian issues took place in Tokyo. Japan, formerly one of the world's biggest asbestos users, is paying a heavy price for its past. In recognition of the devastation caused at home, the Japanese Government implemented a virtual asbestos ban in October, 2004, becoming the first government in Asia to take such decisive action. This decision, however, did not occur in a vacuum but was the product of years of lobbying by asbestos victims, parents of asbestos-exposed schoolchildren, medical specialists, environmental and public health campaigners who had, over recent years, worked more closely to develop effective ban asbestos strategies. The strength of this network resides in its grass-root support; formerly isolated, asbestos sufferers and their families have come together in small groups throughout the country to support each other and mobilize their communities. Kazunori Uekusa, Rinzo Uno, Norio Kato, Fumitoshi Saito, Mie Saito, Kazuko Furukawa told GAC delegates of their own personal asbestos tragedies and urged that a global asbestos ban be adopted to protect others from these terrible diseases. GAC participants from Asian countries where there is no effective regulation of hazardous asbestos exposures, no epidemiological data on asbestos diseases and no social security or compensation for occupational illnesses discussed their concerns. From the Bangladeshi and Pakistani ship-breaking beaches, to the Korean asbestos textile factories to the Chinese, Vietnamese and Thai asbestos-cement roofing industries, the Asian asbestos hazard is growing exponentially; after three days of presentations at the GAC, there is no doubt what the repercussions will be.

During the closing session of the conference, GAC Chairperson Dr. Yoshiomi Temmyo presented The Tokyo Declaration; amongst its seven points were a call for a global asbestos ban, the need for protection from hazardous asbestos exposures, the right to prompt medical treatment and equitable compensation. The Declaration, which was unanimously adopted, concluded:

“International cooperation is essential! Active participation of victims, workers, the public, policy makers, academics, lawyers, trade unions, grass-roots organizations, relevant agencies and interested groups is needed. Positive experiences of this cooperation should be exchanged through existing and innovative networks.

Continual and global monitoring of developments in all the categories above is vital for sustaining international action toward an asbestos-free environment for all the human family. We can, must and WILL make a change working together for the future.”

2. Mesothelioma Massacre

By the middle of the 21st century, a further 65,000 British lives will be lost to mesothelioma; in a paper published on January 25, 2005, The Expected Burden of Mesothelioma Mortality in Great Britain from 2002 to 2050, epidemiologists explained:

“The annual number of mesothelioma deaths in Great Britain has risen increasingly rapidly from 153 deaths in 1968 to 1848 in 2001 and, using our preferred model, is predicted to decline rapidly… Between 1968 and 2050, there will have been approximately 90,000 deaths from mesothelioma in Great Britain, 65,000 of which will occur after 2001.”3

Campaigners believe that 75% of cancer patients may suffer financial hardship because of difficulty accessing benefits such as Disability Living Allowance, Attendance Allowance, Carer's Allowance and income support; announcing a “Better Deal Campaign” for patients, the Chief Executive of Macmillan Cancer Relief, Peter Cardy, said last November: “It is unacceptable that cancer patients should suffer the huge problem of debt, poverty or financial hardship at a time when they are most vulnerable, especially when help is available if they knew about it.”4

On one day last October, Stewart Atkinson, the North Lincolnshire Coroner, held three mesothelioma inquests in Scunthorpe. Despite evidence of occupational asbestos exposure in every case, Atkinson only recorded a verdict of death by industrial disease in the death of Anthony Bennett who had worked at the Richard Dunston Shipyard in Hull; the atmosphere in which Mr. Bennett painted pipes was “thick with (asbestos) dust.” Atkinson did not accept that the deaths of Anne Rowson or Frank Rickell were due to industrial diseases. A statement by Mrs. Rowson, who died in September, 2003, detailed asbestos exposure experienced when she cleaned “asbestos roofs and walls coated with asbestos to keep in the heat,” at the chicken farm where she worked in the 1970s. Mr. Rickell, who died in May, 2003, had worked on blast furnaces for British Steel. Atkinson commented: “Just because someone worked at the plant, it does not necessarily follow they came into contact with asbestos… He was not working in an environment where I would expect him to come into contact with asbestos.”

According to first-hand evidence and reports by industrial historians, it would be rare for someone working with UK blast furnaces or boilers in the 1970s not to come into contact with asbestos. This fact was recognized by the Industrial Injuries Advisory Council in 1996 in their document Cm 3467, which broadened the list of occupations in which hazardous exposures were considered likely:

“The widespread uses of asbestos mean that significant asbestos exposure could occur in occupations not readily understood to be covered by this list. For example, significant exposure to asbestos could have occurred in the manufacture, assembly, repair, maintenance, or use of machinery, equipment or plant requiring insulation (such as that producing excessive heat or noise)…Cases of mesothelioma in people who have worked in one of the occupations as an employed earner could reasonably be attributed to this work without further enquiry: environmental health officers, building inspectors… fishermen, deck and engine room hands…chemical, gas and petroleum process plant foremen, operators and labourers…manual occupations in the processing, making and repairing of metals and metal and electrical goods, painters and decorators, assemblers of metal and electrical goods… storekeepers, stevedores, warehouse, market and other goods porters, boiler operators.

N.B. It is important to understand that not all workers – nor even necessarily a majority of workers – in the individual occupational groups listed will have been exposed to significant levels of asbestos. However, cases of mesothelioma in individuals who have worked in these occupations can be assumed, in the absence of convincing evidence to the contrary, to be due to occupational asbestos exposure.”

Dr. Peter Dean, the Coroner for Greater Suffolk, also has a docket crowded with mesothelioma inquests. On October 1, 2004, he recorded verdicts of death by industrial disease for mesothelioma victims:

  • Alfred Bartlett, who died age 73 in June, 2004; Mr. Bartlett had been employed building and repairing steam locomotives for British Rail;

  • Arthur Harris, who died in September, 2004 age 83, had been an electrician in the Royal Navy during which time he cut asbestos pipe coverings;

  • Irene Smethurst-King had been employed in a cotton mill and silk factory. Although there was no direct evidence of Mrs. King having experienced occupational asbestos exposure, Dr. Dean said: “On the balance of probably the fact is that we have a mesothelioma and we have a disease that is caused more likely than not by asbestos exposure.”

  • Harry Bywater, died in July, 2004 age 83; after the Second World War, Mr. Bywater had built houses which contained asbestos sheets, often sawing this material by hand;

  • William Wenlock, who died in May, 2004 age 91, was a former tool setter. Mr. Winlock had worked in mines as a pit pony driver and coalface worker; the presence of asbestos fibers found during an autopsy was conclusive, the Coroner decided.

Bradford Coroner Roger Whittaker also takes a wider view of what constitutes occupational exposure as evinced by a decision he made in January, 2005. Whittaker issued a ruling of death by industrial disease in the case of Janet Watson, a former hairdresser, who died of mesothelioma age 59, on September 16, 2004; the Coroner accepted that Mrs. Watson had been exposed to asbestos in hairdryers “which was therefore asbestos in the workplace.”

In recognition of the needs of tens of thousands of current and future victims, a Mesothelioma Summit is being held in London on March 9, 2005. Organization of this event has been spearheaded by the British Lung Foundation (BLF) in collaboration with asbestos victims' groups, medical specialists, solicitors and others. The summit will be opened by Professor Mike Richards, National Clinical Director for Cancer; Dame Helena Shovelton, Chief Executive of the BLF, will explain the charity's work with mesothelioma groups such as the June Hancock Mesothelioma Research Fund and the Mick Knighton Research Fund and its concern with the UK mesothelioma epidemic. It is hoped that a Mesothelioma Charter, to be debated on the day, will form the basis for a future action plan. While attendance is free of charge, spaces are limited. If you wish to attend please contact Sue Knight at the BLF on 0207 688 5565 or by email: Sue.Knight@blf-uk.org

The limited life expectancy of mesothelioma sufferers and delays in the judicial process result in many compensation awards being made post-mortem. Some jurisdictions have responded to this problem by setting up protocols to streamline the processing of mesothelioma lawsuits. Since its inception in 2002, the Queen's Bench Division's “fast track” for mesothelioma claims, overseen by Master Steven Whitaker, has succeeded in reducing litigation time and increasing the certainty of results. In 2002, procedures were introduced in Scotland to speed-up the disposition of terminal cases. On October 1, 2004, a Practice Note entitled Asbestos Induced Mesothelioma Claims was implemented that allocates lawsuits to a dedicated mesothelioma caseworker and adopts a strict timetable for accelerating these claims through the Birmingham District Registry High Court and County Court system. Plaintiffs' solicitors have reported attempts by defendants to turn the new Birmingham procedures to their advantage by exploiting legal loopholes so that awards for live mesothelioma claimants, who are relatively young and have dependants, are worth less than those for surviving family members.

3. New Attacks on UK Asbestos Claimants

Since the House of Lords upheld the right of UK mesothelioma victims to sue negligent employers in 2002,5 defendants and insurers have developed other legal strategies to evade asbestos-related liabilities. A report by actuaries published in 2004 predicted up to 200,000 UK asbestos-related claims over the next thirty years at a cost of 8-20 billion ($15-$38 bn).6 As pleural plaques7 account for 75% of all asbestos legal actions, it was inevitable that an attempt would be made to curtail this category of claim. On February 15, 2005, a crucial High Court judgment was handed down by Mr. Justice Holland in a test case brought by ten plaintiffs with asymptomatic pleural plaques. There is no doubt about the importance of this ruling. As the hearings began last November, Colin Ettinger, President of the Association of Personal Injury Lawyers, condemned the “cynical attempt” by the insurance industry to “wriggle out” of paying fair compensation saying:

“for years and years they did nothing to set premiums at the right level, even though they were fully aware of the dangers of asbestos and the consequences of exposure.”

In Scotland, defendants' litigator Lex Dowie was maintaining a watching brief: “This could be one of the biggest cases of the decade, with consequences reaching far into the future. Test cases just like it are being prepared in Scotland.” Dowie warned:

“It will be more difficult in future to provide proper full compensation to those suffering from mesothelioma if the pool of funds available for that purpose continues to be drained by claims by people who may genuinely be worried about the possible future consequences of their past exposure to asbestos, but are otherwise well.”

Justice Holland was unconvinced by this and other defence arguments which maintained that pleural plaques were medically irrelevant; this attempt to reverse twenty years of precedents that had provided thousands of pleural plaque sufferers with provisional or final damages failed. Sitting in Newcastle, Justice Holland awarded damages against ten defendants, including British Shipbuilders,8 Norwich Union and Zurich Insurance, to claimants ranging from 56 to 68 years old who had experienced negligent asbestos exposures during employment in shipbuilding, construction, thermal insulation, shopfitting and the civil service. Justice Holland explained that the actionability of pleural plaque claims was dependent on the following:

(1) the nature, extent and dating of the initial exposure to asbestos with inferred ingestion;

(2) a resultant penetration of the chest by asbestos fibres (now evidenced or capable of being evidenced by the fact of pleural plaques) that is permanent, that is, such that has not been removed or neutralised by the natural defences of the body and that remains for life as a possible catalyst for the onset of one or more symptomatic diseases;

(3) physiological damage as encompassed by (2);

(4) risks as now assessable as to the future onset of symptomatic diseases; and

(5) present and prospective suffering or loss of amenity represented by anxiety engendered by the foregoing.

Responding to a submission by Mr. Bueno QC, Justice Holland clarified his opinion as follows:

“I do not hold that simple penetration by asbestos fibres constitutes an injury and thus an 'entry point' for the purpose of a compensation claim…I do hold that penetration by asbestos as has resulted in, and is evidenced by pleural plaques does amount to an injury and thus provides an 'entry point', given the accompanying 'package' of now practicable risk assessments and resultant anxiety.”

Solicitor Ian McFall of Thompsons Solicitors, who represented two of the claimants, said “This judgment is a victory for our clients and everyone else who has a similar claim. The High Court has reaffirmed the right to compensation for pleural plaques. It has held that our clients have suffered injury and that the negligent employers and their insurers must pay damages. This is good law, which puts people before profits.” Solicitor Geraldine Coombs of John Pickering & Partners agreed: “It's a victory, no doubt. It preserves a right to compensation. This is not a case of opening the floodgates, it just ensures that people who have acquired the condition can be compensated for what may occur.” Insurers were taking solace from the fact that Holland cut the size of payouts from 5,000-7,000 ($9,470-13,260) for provisional damages to 4,000 ($7,577) and from 12,500-20,000 ($23,700-38,000) to 6,000-7,000 ($11,370-13,260) for one-off final payments. An unnamed actuary told Reuters that the cut in damages may discourage solicitors from taking on plaque cases which are notoriously complex; the potential reduction in cases combined with the decrease in their value could slash insurers' asbestos costs. Julian Lowe, Chairman of the UK Asbestos Working Party at the Institute and Faculty of Actuaries, hoped the reduction in payouts would deter “ambulance chasers” from mobilizing claims. Throughout the hearings, defendants complained about the growth of the UK “compensation culture” and the use of “scan-vans,” mobile X-ray screening units, to identify potential clients. Although disappointed with the reduction of the awards, Amicus, the trade union which supported the High Court action, was relieved that the right to sue had been preserved. According to Derek Simpson, the Amicus General Secretary, the judgement would affect about 14,000 cases a year. Pledging the union's commitment to these cases, he said:

“Amicus and its lawyers will continue to ensure that workers suffering from asbestos-related injuries due to the failure of employers to protect them have the right to compensation. Amicus is receiving hundreds of calls a week in response to the union stepping up its campaign to compensate asbestos claims and fight the claims-handling agency.9 The union has created a database detailing cases of asbestos exposure. The database will be used to ensure union members suffering from asbestos-related diseases have a better chance of winning their legal case than other claimants do.”

Norwich Union and Zurich are considering an appeal.

Three weeks before Justice Holland issued his verdict, the Court of Appeal reversed another High Court decision, thereby depriving the surviving family of mesothelioma victim Teresa Maguire of an 82,000 ($155,325) court award. According to Christine Maguire, Teresa's daughter, the compensation would have “transformed the last few months” of her mother's life. But defendant Harland & Wolff, the former employer of Mrs. Maguire's boilermaker husband, chose to appeal Mr. Justice Morland's decision and the extra comforts this compensation might have bought Mrs. Maguire were not forthcoming. On March 26, 2004, Justice Morland had ruled that during the period 1961-1965 shipyard employers such as Harland & Wolff could have foreseen the hazards posed by asbestos-contaminated work clothes brought into domestic environments citing the 1930 Merewether and Price publication: Report on the effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos Industry; furthermore, Morland found, the defendant could have taken simple precautions such as providing changing rooms, showering facilities and laundry arrangements at work which would have ensured that Mr. Maguire returned home without wearing dust-infested clothing. For these reasons, Morland recorded, Harland & Wolff were liable for Mrs. Maguire's illness.

On January 26, 2005, the Court of Appeal reversed Morland's decision. In their judgment Lord Justices Judge, Mance and Longmore relied on the 1988 decision in Gunn v Wallsend Slipway and Engineering Company Ltd. which concluded:

“The reality of the matter is that…no-one in the industrial world before October 1965 directed his or her mind to the risk of physical injury from domestic exposure to asbestos dust, except in what I will call 'the asbestos neighbourhood cases'… It is unlikely that they (the defendants) would have become aware of the risk from domestic exposure to asbestos dust before about the end of 1965.”

Although the Appeal Court Judges agreed that “Mr. Maguire personally would have established negligence and breach of duty against Harland & Wolff,” this breach of duty did not extend to his wife. In Mrs. Maguire's statement she recalled:

“The only time when I have been exposed to asbestos is from washing Jimmy's work clothes... The clothes were dirty and dusty… The dust and fibres seemed to stick to the hand knitted socks and jumpers… I brushed them (the clothes) with a little hand brush to get the worst dust off…I breathed in the dust when I shook out his clothes…”

The consultant engineer who gave evidence on the extent of Mrs. Maguire's exposure found:

“During this period, the claimant would have been regularly exposed to asbestos fibres which were brought into the family home by her husband…she would have been at least moderately and sometimes heavily exposed to airborne asbestos fibres.”

Warning against the “wisdom of hindsight,” Lord Justices Judge and Longmore were not convinced that pre-1965, the case had been made that a prudent employer should have foreseen the risk of pulmonary injury to family members. Even segments of the 1960 booklet: Toxic Substances in Factory Atmospheres, which were critical to Morland's ruling, were dismissed by the appeal judges who found that its recommendations pertained to employees and not family members. Justice Judge concluded:

“In the absence of any evidence from any source whatever of contemporaneous insight into familial risk, or any contemporaneous suggestion that the possibility of such risks should be addressed, I am unable to accept that by not later than 1960, and ahead of contemporary understanding, Harland & Wolff should have appreciated that Mrs. Maguire was at risk of pulmonary or other asbestos-related injury, and that their failure to do so and to take appropriate precautions for her safety was negligent.”

The minority opinion, as voiced by Lord Justice Mance, upheld the findings of the lower court. Mance concluded:

“the appellants were behaving in disregard of any responsible and recommended practices at the time in the way they conducted themselves and allowed their operations to be conducted. There was a great deal of loose dust, no extraction system at all and no warning of any danger of contact with asbestos dust…The literature made clear that the materialisation of the generalised risk to which asbestos dust gave rise varied according to a host of factors, including individual sensitivity. If one behaves irresponsibly, it may not be easy to foresee precisely all the consequences, but injury to others like Mrs. Maguire was in my view sufficiently foreseeable.”

Permission is being sought to appeal this decision to the House of Lords.

___________

1 GAC website: http://park3.wakwak.com/~gac2004/

2 In 2002, Robbie Brown, June's husband, founded the group JAV; upon his death in 2003, June was asked to take up the reins as Chairperson.

3 British Journal of Cancer (2005) 92, 587-293.

4 For information on the Macmillan campaign for a better financial deal for cancer sufferers see: http://www.macmillan.org.uk/abetterdeal

5 For background information on the Fairchild litigation, see newsletters issues 42-44, 46, 47 & 50.

6 J. Daley. Insurers warned UK asbestos payouts could soar to 20bn. The Independent. November 2, 2004, page 34. Another article: Zurich in fight over asbestos which appeared on November 9, 2004 said that pleural plaque compensation is costing insurers 25 million a year; pay-outs averaged 5,000-6,000. website: http://www.thisiswiltshire.co.uk

7 Pleural plaques are non-malignant scarring of the lining of the lung caused by exposure to asbestos.

8 The claims against British Shipbuilders are made against public funds as this corporation was created by the government in 1977 following the restructuring of the UK shipbuilding industry by the Aircraft and Shipbuilding Industries Act 1977.

9 The phrase “claims-handling agency” refers to private companies, also known as claims farmers, which run advertisements with headlines such as Asbestos Alert: Have you worked in any of the following industries? in local newspapers; Freeclaim Industrial Diseases Compensation Ltd. urged “anyone who was exposed to asbestos through employment to contact us immediately or attend one of our free screening sessions.” Another ad headlined Are you suffering through asbestos contact? offered a CT scanning service.

___________

Compiled by Laurie Kazan-Allen
ÓJerome Consultants