ISSN 1470-8108 Issue 63 Summer 2006

Contents:

1. Righting a Wrong: Parliament to Reverse Barker
2. Westminster Asbestos Seminar

1. Righting a Wrong: Parliament to Reverse Barker

On July 17, 2006, the UK Government took action to nullify the iniquitous decision of the Law Lords in the Barker1 case; after a protracted debate on the Compensation Bill, the House of Commons agreed without dissent to add a clause to the bill re-establishing joint and several liability for negligent employers in mesothelioma claims. The Parliamentary Under-Secretary of State for Constitutional Affairs, Bridget Prentice, read out the amendment, designated as new clause 13 entitled: Mesothelioma: damages, which, in effect, restored the rights of mesothelioma litigants to recover full compensation from whichever employer or insurer could be traced. Discussing the Law Lords' soon-to-be-corrected deviation, Prentice said:

“Fairchild2 did not resolve whether liability should be joint and several, although it was presumed by the parties that that would be the rule, and that was the approach taken in practice. However, in Barker v. Corus, the House of Lords decided that instead the damages were to be apportioned among those responsible for the wrongful exposure according to their relative degree of contribution to the chance of the person contracting the disease.

That decision did not impose a limit on the damages that could be recovered from those responsible for the exposure to asbestos, but it did mean that the risk of any of them being insolvent and unable to pay the appropriate share would fall on the claimant, and that in practice the claimant would have to trace all relevant defendants, as far as that was possible, before liability could be apportioned and full compensation paid, or alternatively to issue multiple claims to recover damages on a piecemeal basis.”3

The House of Lords is expected to vote on the Compensation Bill on July 19/20; as cross-party support is strong, approval by the Lords is anticipated. Once this hurdle has been cleared, the bill receives Royal Assent after which it becomes an Act of Parliament.4 Government advisers expect the bill to become law by the end of July 2006.5 The mesothelioma amendment will affect cases brought by claimants in England, Wales, Scotland6 and Northern Ireland; it will be retroactive so that people with claims which were settled on or after May 3, 2006 and before the date the Act becomes law may apply to a relevant court to have the settlement varied.

Background

The swift action taken by the Government over Barker was almost certainly precipitated by the widely shared perception that asbestos victims have become the focus of a coordinated and well-resourced attack by UK PLC to strip them of their rights. Compensation for pleural plaques, a condition which is responsible for the majority of asbestos-related claims, was effectively ended by a ruling of the Court of Appeal on January 26, 2006 in the case of Rothwell v. Chemical & Insulating Co. Ltd.; should this decision stand, it could deprive plaque sufferers of 25 million a year.7 Within weeks of the Rothwell verdict, reports were circulating that comments by the Law Lords adjudicating the Barker appeal foretold yet another defeat for victims. And so it was. Lords Hoffman Scott, Walker and Baroness Hale reversed years of precedent by apportioning liability for mesothelioma, a disease previously considered indivisible. Damages from negligent employers were, the Lords determined, to be assessed separately based on the intensity, duration and frequency of asbestos exposure in each period of employment: “a defendant is liable for the risk of disease which he himself has created and not for risks created by others,” Lord Hoffman wrote in the majority judgment.

Solicitor Adrian Budgen explained the repercussions of the Barker decision as follows:

“Unless you can sue all of the companies that exposed you to asbestos you will no longer be able to get full compensation. The benefit of the doubt is being given to companies guilty of negligence. If you had two employers who exposed you to asbestos negligently for an equal length of time and one of them has gone out of business by the time you are diagnosed with mesothelioma, and did not have insurance cover, you will only get half the compensation; if you had only had one employer, you would get the full amount.”

James Thompson, from John Pickering & Partners, who represented Mrs. Barker, was highly critical of the ruling:

“The lords seem to be saying that employers can be excused paying in full for their past law breaking activities while their insurers and shareholders will get a billion pound windfall, even though in the UK they can well afford to pay full asbestos compensation. Severe financial hardship will result from individual awards being slashed by tens of thousands of pounds.”8

The pro-defendants' ruling in Barker was a radical departure from the 2002 House of Lords decision in Fairchild v Glenhaven Funeral Services. In the earlier action, the Law Lords upheld the right of mesothelioma sufferers who had received hazardous exposures from multiple tortfeasors to hold the defendants joint and severally liable as the breach of duty by each defendant materially increased the risk of the onset of mesothelioma: “Therefore, each defendant is liable in full for a claimant's damages, although a defendant can seek contribution against another employer for causing the disease.” Although Fairchild was a major victory for claimants, it left a number of questions unanswered; defendants spotted the gaps and started down the road which eventually led back to the House of Lords.

At a meeting of the Asbestos Sub-Committee on July 18, 2006, Tony Whitston, Chair of the Forum of Asbestos Victims Support Groups, expressing the relief felt by many, said:

“The action taken in Parliament to overturn the Law Lords' decision in Barker v Corus has given hope to hundreds of mesothelioma sufferers and their families that this appalling decision will now be reversed. The legislative action to reverse a Law Lords' decision 2 months after it was handed down is unprecedented and is an appropriate response to the potential injustice which could have been caused. The campaign and support of so many MPs, Ministers, the TUC, trade unions, mesothelioma sufferers, their families, lawyers and supporters, and especially the efforts of Michael Clapham MP and Chair of the Asbestos Sub-Committee has given Parliament the opportunity to give justice back to those who most deserve it: the mesothelioma sufferers.”

2. Westminster Asbestos Seminar

Within weeks of the disastrous ruling by the House of Lords in the Barker case,9 the annual seminar of the Asbestos Sub-Committee10 took place in the Palace of Westminster. The consternation caused by the implications of the Law Lords decision was a tangible presence in Committee Room 11 as the meeting was convened by the Chairperson of the Asbestos Sub-Committee Michael Clapham MP. The job of the Law Lords, Clapham said, is to apply the law of the land; if the law were to be changed, then the inequitable decision of May 3 could be rendered void. Discussions were on-going at the highest level of the Government on ways of preserving the legal rights of mesothelioma litigants post-Barker. Due to the Sub-Committee's concern at this attack on victims' rights, an invitation had been extended to the Rt Hon John Hutton MP and Secretary of State for Work and Pensions to update delegates on the situation. As the participation of Cabinet Members at meetings of the Sub-Committee is rare, there was great anticipation among delegates as to the nature of Hutton's comments.

Dame Helena Shovelton of the British Lung Foundation began the seminar with her presentation: Action Mesothelioma Day (AMD). On February 27, 2006, the UK held the first-ever AMD to raise awareness of the increasing incidence of this fatal cancer which is now killing more than 1,800 people every year. Dame Helena acknowledged the highs and lows of the day including, among the former, the delivery of the Action Mesothelioma Petition to 10 Downing Street, a reception for MPs at the House of Commons, a mass mailing of mesothelioma literature to all general practitioners and reasonable media coverage of the event. However, she admitted there had been criticism of delays in distributing campaign material and lack of coordination with asbestos victims groups and trade unions; a post-event audit had been conducted and improvements would be made.

Professor Deborah Hensler from Stanford Law School described the impact asbestos disease has had in the U.S. on workers, the judicial system and the economy in her presentation Asbestos Litigation in the U.S. – Where it's Been, Where it's Going. In the late 1990s and early 2000s, the number of claims for non-cancerous conditions exploded; up to 2002, compensation and legal costs paid by U.S. defendant corporations exceeded $70 billion. Of the 8,400 corporations sued, more than 70 have filed for Chapter 11 bankruptcy. It has been predicted that by 2029, there will be more than 120,000 additional deaths from asbestos cancers and between 250,000 - 1.5 million additional personal injury claims. The financial threat to major corporations and the sensitivity of the stock market to asbestos liability led vested interests in the U.S. to devise “a consensual strategy” for resolving asbestos claims through administrative rather than judicial means. As of now, it looks as if efforts to establish a Medical Criteria Bill and a $140 billion Trust Fund have failed, due to the opposition of asbestos victims' associations, trade unions and plaintiffs' attorneys and highly publicized disputes amongst corporate defendants and insurers over funding arrangements. Although, the future of U.S. asbestos litigation remains unclear, Professor Hensler predicted that:

  • annual filings will probably rise albeit not to their former peak;

  • innovative litigation strategies may be devised by new plaintiffs' firms;

  • defendants newly targeted will litigate aggressively thus increasing legal costs;

  • the removal of non-impaired claims from the judicial system may increase the value of cancer claims;

  • there could be more claims from abroad as illustrated by an increase in foreign filings with the Manville trust.

The heavy use of asbestos in the shipyard and engineering industries has given the male population in Barrow-in-Furness the highest Standard Mortality Ratio for mesothelioma in England. In her presentation, Dr. Helen Clayson, the Medical Director of St. Mary's Hospice, Cumbria, discussed the rationale for setting up a support group to provide information and support for people affected by mesothelioma and other asbestos-related diseases. Founded in February 2006, the Barrow Asbestos-Related Disease Support (BARDS) group holds a monthly “open house” from 10 a.m. – 4 p.m. at the hospice care centre in Barrow. During the day, clients can speak with a doctor, a benefits adviser or solicitor and obtain information on complementary therapies, breathing control, physiotherapy, nutrition, carer support and other services. In addition to the telephone advice line run by BARDS, a range of new services for carers is being developed. Tayside, Scotland is another area affected by asbestos illness. Ian Babbs, the Chair of Asbestos Action (Tayside), said that asbestos victims are not looking for handouts; they are looking for justice. In this quest, they deserve the support of politicians from all parties to ensure that the law supports the victims and not vested business interests: “The people who are looking for this justice are the ones who have worked all their lives to make Great Britain what it is through the manufacturing industry.”

Jason Addy of the citizens' group Save Spodden Valley provided an update on recent developments in the battle over the future of the 72 acre asbestos-contaminated site in Rochdale, formerly home to the world's largest asbestos textile factory.11 While commercial interests put forward grandiose plans for this “area of opportunity for a mixed use urban village,” public health campaigners categorize disturbing soil on this site as “sheer madness.” In an environmental statement submitted with their planning application in December 2004, the developers said that “of particular note is the absence of any asbestos contamination” on this site. Pictures exhibited by Addy of piles of asbestos tell a different story. How can it be otherwise, he said, when T&N routinely disposed of asbestos waste and debris on the site; according to company documents, 15,000 lbs. of asbestos-contaminated dust were being recovered from the factory's filter rooms and “dumped to waste” every week during the 1950s. Attempts to obtain an honest assessment of the site have been frustrated by an apparent lack of co-ordination and “joined up thinking” between government bodies. Rochdale Council's Planning Department, it's Contaminated Land Officers and Environmental Health Officers are becoming increasingly frustrated with the lack of effective coordination, communication and action by the Forestry Commission, Health and Safety Executive, Environment Agency, Prime Minister, Office of the Deputy Prime Minister, Department of Health, Department of Trade and Industry, Department of Work and Pensions, Department for Environment Food & Rural Affairs, Primary Care Trust and Health Protection Agency. Correspondence obtained under the Freedom of Information Act suggests that contractors admitted a breach of criminal law, yet no prosecution was brought. Campaigners have vowed to continue their investigations.

The Rochdale experience may have implications nationwide for “brownfield” redevelopment. Currently there are:

  • no statutory environmental exposure limits for asbestos;

  • no government Soil Guidance Values for asbestos;

  • no compulsory declaration of contaminated land;

  • no requirements for contaminated land information to be included in sellers' packs;

  • no apparent coordination between government departments and agencies.

The planning application remains firmly on hold. A report commissioned by Rochdale Council to assess the developers' planning application has reported after an 18 month investigation. The findings are damning and call on developers to conduct much more testing. A Health Impact Assessment is being commissioned by Rochdale Primary Care Trust. Concluding his remarks, Addy said that after more than two years of campaigning the shocking truth of Spodden Valley's asbestos legacy is only now starting to emerge.

The lack of clarity regarding permissible asbestos levels in soil, water and air was addressed by Heinz Kropniuk in his presentation: Quantifying Asbestos Contamination in Austria. Based on his years of involvement with Austria's largest asbestos removal project,12 Kropniuk has concluded that:

  • human safety relies on the accuracy of air measurements: at levels > 3000 f/m3 air after disturbance, there can be no compromise in the safety measures taken and procedures including negative pressure, enclosures, air locks and systematic monitoring are needed; at levels < 3000 f/m3 air, less stringent decontamination procedures can be used;

  • in Austria, methods used for asbestos sampling of settled dust, including adhesive tapes or stubs, Scanning Electron Microscopy (SEM) and semi-numerical quantification, remain unregulated;

  • while Phase Contrast Microscopy (PCM) might have some applications for monitoring airborne asbestos fiber levels at asbestos workplaces, it is not appropriate for monitoring fiber levels during and after asbestos removal work; because of its serious limitations, PCM as an analytical method for asbestos detection should be banned;

  • a common approach for quantifying asbestos contamination in bulk material, air and settled dust is needed in Europe; acceptable limits of asbestos fibers for (indoor) air environment need to be set.

At the heart of this year's asbestos seminar was the Barker case. As Mrs. Barker's Solicitor, James Thompson, of John Pickering & Partners, was uniquely placed to make the presentation: Barker v Corus – How the House of Lords Rewrote the Law on Compensation for Mesothelioma. The Law Lords' decision would, Thompson said, have many consequences including massive savings for UK defendants and insurers at the expense of mesothelioma victims who had been self-employed or had had the misfortune to receive hazardous exposures at the hands of multiple employers. In the dissenting opinion in Barker, Lord Rodger of Earlsferry focused on the potential for injustice the application of this judgment could create:

“it is also hard – and settled law – that a defendant is held liable in solidum even though all that can be shown is that he made a material, say 5%, contribution to the claimant's indivisible injury. That is a form of rough justice which the law has not hitherto sought to smooth, preferring instead, as a matter of policy, to place the risk of the insolvency on a wrongdoer or his insurer on the other wrongdoers and their insurers. Now the House is deciding that, in this particular enclave of the law, the risk of insolvency of a wrongdoer or his insurer is to bypass the other wrongdoers and their insurers and to be shouldered entirely by the innocent claimant. As a result, claimants will often end up with only a small proportion of the damages which would normally be payable for their loss. The desirability of the courts, rather than Parliament, throwing this lifeline to wrongdoers and their insurers at the expense of claimants is not obvious to me.”

Lord Rodger implied that a major shift in personal injury law as espoused by Lords Hoffman, Scott, Walker and Baroness Hale, whereby defendants and their insurers are assisted “at the expense of the victims of mesothelioma and their relatives,” is the province of Parliament and not the courts. In the aftermath of this presentation, Michael Clapham MP suggested that a national mesothelioma scheme could be one way to restore the law pre-Barker. Thomas Gorman, from Clydebank Asbestos Victims Group, said that on May 15 a discussion on Barker had taken place with representatives from Scottish asbestos victims' groups and Des McNulty, a Member of the Scottish Parliament; plans are being finalized to protect the rights of Scottish mesothelioma victims through legislation.

The discussion session was abruptly terminated by the arrival of Secretary of State Hutton. In his initial comments, John Hutton said that the Government needed to do more to ensure that procedures to compensate mesothelioma victims were streamlined; representatives from the Department of Work and Pensions, the Department of Constitutional Affairs, the Association of British Insurers and the Association of Personal Injury Lawyers were, he announced, involved in negotiations to devise a system which would deliver compensation while victims are still alive. Regarding the decision of the Law Lords in the Barker case, Hutton stated simply: “They got it wrong.” Should this ruling stand, Hutton said, the injured would lose out and the wrongdoer would benefit; the reversal of precedent as established in the Fairchild case turns the concept of fairness upside down. Among the points put to the Minister were:

  • the urgent need to overturn the Law Lords' ruling in Barker; this could be achieved by an amendment to the Compensation Bill;

  • the “mesothelioma fast-track scheme” at the Royal Courts of Justice, operated by Master Steven Whitaker, was praised and calls were made for the Government to increase funding for this and similar specialist courts throughout the country;

  • the processing of claims under government schemes, such as the Miners' Scheme, is notoriously slow; as mesothelioma victims need results in weeks, time-consuming bureaucratic processes are unsuitable;

  • members of the Forum of Asbestos Victims Support Groups have grave reservations about the imposition of a national mesothelioma scheme; the priority is to change the Barker ruling; “Mesothelioma sufferers deserve much better treatment then they had had in the past. We will not acquiesce with any scheme that operates to the detriment of mesothelioma sufferers”;

  • it is unacceptable that victims' groups and trade unions are not part of the current consultation process;

  • mesothelioma victims whose exposure was environmental are not eligible for government compensation; this needs to be remedied;

  • the UK Government is implicated in the Barker judgement as the public corporation British Shipbuilders brought two of the three appeals;

  • availability of Alimta, a drug which can be effective in controlling mesothelioma symptoms and prolonging survival, is inconsistent throughout the country; a ruling by the National Institute for Clinical Excellence in autumn 2006 will further restrict NHS provision of Alimta for malignant pleural mesothelioma.

As Hutton exited the room, there was a palpable reduction in tension. Delegates felt that while the Minister's statements had been encouraging, the lack of detail about government plans was disappointing. Nevertheless, the fact the Secretary of State had engaged in an exchange of views with seminar delegates was viewed as a clear indication that this matter was attracting government interest at the highest level.

The ubiquitous use of asbestos and asbestos mining operations in Western Australia (WA) and New South Wales have given Australia one of the highest incidences of mesothelioma in the world. In his presentation An Update on Australian Medical Research, Dr. Greg Deleuil discussed the Australian Government's strategy for dealing with this evolving catastrophe. The Government's reaction to the country's “worst industrial disaster in our history” has been to devise a “comprehensive, strategic, national effort to help those suffering from asbestos related diseases.” The National Research Center for Asbestos Related Diseases is being established by the National Health and Medical Research Council; over the next 3 years, A$5 million of government funding will be made available to set up this Center to coordinate the national fight against asbestos cancer; over the next decade, additional funds of A$110 million will be provided for research on 11 different themes including prevention, early diagnosis, treatment therapies and palliative care. WA's asbestos legacy is a time bomb, said Dr. Deleuil; it is now 40 years since the asbestos mining operations in Wittenoom closed down. Since then, many of the town's 6,000 resident children have contracted mesothelioma from the hazardous domestic and environmental exposures they experienced. In the last 18 months, 12 former Wittenoom children have been diagnosed with mesothelioma in Perth, a city that has become a focus for international research efforts on asbestos cancer.

The final presentation of the afternoon was given by Dr. Jeremy Steele, Consultant Medical Oncologist for Lung Cancer and Mesothelioma at St. Bartholomew's Hospital, London. Dr. Steele castigated the nihilism of some medical professionals who believed that “chemotherapy is not worth the bother” for mesothelioma patients. He cited the example of Mr. H., a 60 year old electrician from Liverpool who had been active and physically fit before being diagnosed with mesothelioma. After Mr. H. had been denied the preferred option of chemotherapy with Pemetrexed (Alimta) and Cisplatin in Liverpool, he was seen in London; unfortunately as Dr. Steele was also prohibited from prescribing this treatment,13 Mr. H received an inferior protocol. Although, Pemetrexed in combination with Cisplatin is the licensed treatment for chemotherapy-nave patients with unresectable malignant pleural mesothelioma in the UK, some Primary Care Trusts (PCTs) refuse to authorize its use. To compound the plight of UK mesothelioma patients, it is widely expected that in Autumn 2006 the National Institute of Clinical Excellence will withdraw the license for the continued use of Pemetrexed by the NHS. Contrast the lack of national outrage over this deprivation by budgetary cutbacks with that caused by the decision of some PCTs to withhold Heceptin, an unlicensed drug for the treatment of early stage breast cancer, from some patients. Recent court cases involving Heceptin-rationing generated massive press coverage and attracted the attention and personal interference of Government Ministers. What can we conclude from this discrepancy: are some cancer patients more worthy than others?

Bringing the seminar to its close, Chairperson Clapham thanked the speakers and pledged that the Asbestos Sub-Committee would continue its efforts to lobby for government action on issues affecting sufferers of asbestos-related diseases:

“Thousands of our fellow citizens are being diagnosed every year with mesothelioma, a horrible and fatal cancer. It is unacceptable that some patients are being denied treatment with Alimta, a drug which is effective at controlling symptoms and can, in some cases, prolong survival time. In their decision on May 3, 2006 in the Barker case, the Law Lords ignored the rights of mesothelioma and other occupational disease claimants when they sided with negligent corporations and their insurers. This decision is outrageous and, even though, the Government has committed itself to restoring fairness at law by reversing the judgment, the Asbestos Sub-Committee will continue to press for action until these promises become a reality.”

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1 Barker was the lead case in a conjoined appeal which included mesothelioma claims brought by widows Sylvia Barker and Mary Murray and the estate of J Patterson: Barker v. Corus (UK) plc, Murray v. British Shipbuilders (Hydrodynamics) Limited and others, Patterson v. Smiths Dock Limited and others. Web link: http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd060503/barker-1.htm

2 The case of Fairchild v Glenhaven Funeral Services Ltd. & Others was decided by the House of Lords on June 20, 2002; British Asbestos Newsletter issue 47.

3 The full debate on July 17, 2006 can be read on: http://www.publications.parliament.uk/pa/cm200506/cmhansrd/cm060717/debtext/60717-0978.htm#06071715000698

4 Historically, Royal Assent was granted by the Sovereign; nowadays it is generally declared to both Houses by their Speakers.

5 If the Summer recess delays the Royal Assent, it will be given by November 4, 2006.

6 As the law of damages is devolved in Scotland, this act of the UK Parliament could only be extended to Scotland because of the adoption on June 29, 2006 of a legislative consent motion by the Scottish Parliament giving Westminster the power to bring in the change under Scottish law. http://www.scottish.parliament.uk/business/officialReports/meetingsParliament/or-06/sor0629-01.htm

7 Kazan-Allen L. Apportionment of Liability for an Indivisible Disease? British Asbestos Newsletter. Issue 62. Spring 2006.

8 Other News. Risks Newsletter. TUC publication. Number 255, May 6, 2006.

9 See article 1: Righting a Wrong: Parliament to Reverse Barker.

10 The Asbestos Sub-Committee operates under the auspices of the All Party Parliamentary Group on Occupational Safety and Health. The asbestos seminar took place on May 16, 2006.

11 This factory was owned by Turner & Newall Ltd. (T&N), the UK's biggest asbestos group.

12 The Vienna International Center has 7 buildings with a gross floor area of approximately 340,000 m2; the 1970s complex is owned by the Republic of Austria and leased to the UN for 99 years. During its construction, sprayed asbestos fireproofing, asbestos panels and ropes were used in air ducts, on doors, walls and partitions. Four thousand people work at the VIC complex including personnel from the UN, the International Atomic Energy Agency and the Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization.

13 Alimta is not available to patients in London, Birmingham and the East Midlands although it is routinely dispensed in Scotland and Manchester. The cost of treating all UK mesothelioma patients who could benefit from Alimta is estimated to be 3-4 million a year.

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Compiled by Laurie Kazan-Allen
ÓJerome Consultants