ISSN 1470-8108 Issue 65 Winter 2006-07

Contents:

1. One Step Forward, Two Steps Back
2. News Round-Up

1. One Step Forward, Two Steps Back

Even as UK Governments act to ease the plight of an ever increasing number of mesothelioma sufferers, asbestos defendants and insurers implement legal strategies to evade their liabilities for the country's worst occupational disaster. Recent figures released by the Health and Safety Commission (HSC) show an inexorable rise in British mesothelioma deaths over the last 35 years with almost 2,000 recorded in 2004:

“For both males and females the rates for Great Britain follow an upward trend over time – reaching 52.7 and 9.7 deaths per million respectively in 2002-2004 compared with 32.1 and 4.7 in 1990-1992. For males, upward trends were evident in rates over the period for all regions.”1

The HSC predicts that mesothelioma mortality will “peak at around 1950 to 2450 deaths some time between 2011 to 2015.”2 Unfortunately, these dire projections are already coming to pass as evidenced by an increase in the number of asbestos-related deaths being reported by Coroners. At the beginning of November (2006), North East Cumbria Coroner David Osborne referred to a regional asbestos epidemic after hearing the 3rd mesothelioma inquest in a fortnight:

  1. John James White, a Carlisle head teacher, whose death at 65 was linked to exposure at St. Cuthbert's RC School in Botcherby in the 1980s and 1990s.

  2. William Smith, Carlisle businessman, killed by industrial exposure to asbestos, aged 69.3

  3. Robert Stewart of Sandhill, Alston died aged 80 having worked as a marine engineer at Wallsend Slipway and Engineering Co. Ltd. (1940s) and Swan Hunter (1969-1984).

From 2000-2006, at least 160 people died from asbestos-related disease in Cumbria, including the former mayors Alfred Brumwell 62 (Carlisle) and James Johnston 73 (Copeland).4

Government Legislation and Reforms

Asbestos victim support groups in Scotland, working closely with their legal representatives and Members of the Scottish Parliament (MSP), have been lobbying for action to correct a long-standing injustice experienced by mesothelioma claimants which deprived them of recognition and recompense for their illnesses during their lifetimes. As the law stood if a mesothelioma sufferer obtained civil compensation, the rights of the immediate family to claim damages for non-financial loss, such as grief, suffering and emotional distress caused by the death, would be severely compromised.5 Phyllis Crag from Clydeside Action on Asbestos illustrated the dilemma as follows:

“We dealt with a woman (mesothelioma sufferer) who was a nurse with nine children. Can you imagine the difference that it would make to their lives if she took damages in life rather than that happening posthumously? The nine children would receive 90,000, plus 28,000 for the husband. There is a considerable difference between what a family receives when the person is still alive and what it receives posthumously.”

In view of the substantial financial consequences of bringing a claim in Scotland, 80% of sufferers did not seek damages during their lifetimes.

On September 27, 2006, the Rights of Relatives to Damages (Mesothelioma) (Scotland) Bill was introduced to the Scottish Parliament; the Justice 1 Committee was appointed lead committee on the bill, the purpose of which was to amend “the law concerning the right of relatives of a deceased person to claim damages in respect of mesothelioma.” The Holyrood Committee, having received submissions from affected individuals, family members, NGOs and insurers, recommended the bill to MSPs. In light of the urgency of the situation, the Scottish Parliament took the unprecedented step of allowing people to benefit immediately, before the legislation was even on the statute book. Announcing this surprise decision on December 13, Deputy Justice Minister Johann Lamont told MSPs: “It is only right that we do all we can to minimise the distress this problem causes to those suffering from this disease and to their families as speedily as possible.”6 Although the bill's provisions are restricted to mesothelioma cases, they will apply retrospectively to “any case in which the sufferer recovers damages or obtains a full settlement on or after 20 December 2006.”7 MSP Des McNulty, who has represented the Clydebank and Milngavie constituency since 1999, said:

“I am delighted that the Damages Bill has won such widespread support in the Scottish Parliament, making its passage certain by March 2007. Ministers have agreed that victims and relatives will be able to lodge claims for compensation without fear that an award to a victim would extinguish the claim on behalf of relatives with effect from 20th December 2006. As a result claims are proceeding under the fast track system through the Scottish courts and Scottish victims and relatives will get the compensation they are due.”

Welcoming the legal breakthrough, Solicitor-advocate Frank Maguire said his firm would now begin proceedings in about 100 cases.8

Following up on a promise made in July 2006 by John Hutton, Secretary of State for Work and Pensions (DWP) to streamline the system for compensating mesothelioma sufferers, in October the Government announced legislation to ring-fence payments by Turner & Newall to asbestos-injured workers; in this exceptional case, there will be no obligation to refund DWP-paid benefits to the compensation recovery scheme.9 Other measures to reduce bureaucratic log jams were contained in The Compensation Act (Contribution for Mesothelioma Claims) Regulations 2006, enacted on December 6, which allows:

“The Financial Services Compensation Scheme (FSCS) to make a payment to a company or insurer which has funded a mesothelioma claim in full, to the extent that the company or insurer could claim a contribution from another responsible person in accordance with section 3(3)(a) of the Compensation Act 2006 but is unable or likely to be unable to obtain a contribution because an insurer or the other responsible person is unable or likely to be unable to satisfy the claim for contribution.”10

This Act reassures negligent companies and their insurers that if they advance full compensation to mesothelioma sufferers, they will be able to recoup from the FSCS the proportion of the sums paid which was the responsibility of defunct tortfeasors. Another much needed initiative promised by Hutton was introduced in January 2007 by the Association of British Insurers with the appointment of a dedicated member of staff, Briony Krikorian, to handle Employers' Liability enquires:

“Mesothelioma enquiries will now be circulated to Employers' Liability insurers at the end of each week. Insurers then have a calendar month in which to search their records and report any successful traces. Therefore, in a maximum of 5 weeks, the enquirer will receive a second email. All other enquiries will be circulated at the end of the calendar month as per usual, ensuring a response within a maximum of 8 weeks.”11

On January 29, 2007, a consultation paper, Industrial Injuries Disablement Benefit scheme (IIDB), was published by the DWP12 soliciting the views of interested parties on possible reforms to a 50+ year old state-funded system costing the country 776 million ($1,518m) a year. Currently, mesothelioma claimants are assessed as 100% disabled and typically receive IIDB of 127.10/week ($250) and, if eligible, lump sum payments under the Pneumoconiosis etc. (Workers' Compensation) Act 1979 of approximately 10,000-13,000 ($19,565-$25,435) depending on age;13 they can also apply for Constant Attendance Allowance and Exceptionally Severe Disablement Allowance. The paper, which highlights the substantial rise in claims for diffuse mesothelioma between 2002/03 and 2005/06, also points out that mesothelioma claimants who were self-employed or experienced para-occupational or environmental asbestos exposure are excluded from the scheme. The deadline for submitting comments to Steve Daly at the DWP is April 22, 2007.14 The DWP is expected to issue another report in early 2007 on long-term plans to “ensure that, whenever possible, sufferers of mesothelioma can receive compensation so that they can benefit from it, at the same time knowing that their families will be secure in the future.”

In Northern Ireland, Councillor Maire Hendron welcomed the creation of the first drop-in center for asbestos victims saying:

“There are about 3,000 people suffering from asbestos-related illnesses in Northern Ireland, and sources have stated that there are probably another 6,000 on top of that number who are not known to health authorities.”

The center was opened on October 4, 2006 in Bloomfield Avenue, East Belfast by the self-help group: Justice for Asbestos Victims (Northern Ireland); spokesperson Brian Lee, a former shipyard worker with an asbestos condition, describes the lack of awareness of the asbestos hazard at his workplace:

“We used to pack it together like snowballs and throw it at each other, not realising the danger we were putting ourselves in… the husband would bring his overalls home for washing to the good lady and the first thing she would do is take them out to the yard in those days and give them a good shake and that would cause a cloud of asbestos spores and dust… Children would maybe be in or about the home as well, and if there was a cupboard where the wee child kept her pram, the husband's overalls were hanging in there, and they would be brushing past this and getting exposure.”

Judicial Setbacks and Insurers' Machinations

Throughout Autumn 2006, the aftershocks of the Court of Appeal decision in the case of Bolton Metropolitan Borough Council v. Municipal Mutual Insurance Ltd. and Commercial Union Assurance Company Ltd. continued, as more insurers sought to extend the decision pertaining to Public Liability to the realm of Employer's Liability (EL) litigation despite the fact that insurers have consistently treated these types of policies very differently.15 In a briefing note issued in November 2006, Ian McFall, Head of Asbestos Litigation at Thompsons Solicitors, explained:

“The obvious benefit for the EL insurers who are taking the 'trigger' issue is that if they are successful they will escape liability completely. The problem for the victims is that there is very often no other insurers to turn to because, by the time the manifestation of their disease occurs, which is sometimes 40 years or more after they were exposed, the employer has ceased trading and no insurance exists…

The inescapable consequence of the 'trigger' issue defence is to frustrate and delay the process of obtaining compensation for terminally ill claimants and to introduce fundamental uncertainty about how historical policies of EL insurance should operate in practice in mesothelioma cases.”

A lawsuit brought by mesothelioma widow Sylvia Gilligan (69) illustrates many of the ramifications of “Bolton.” Fred Gilligan, a joiner who died aged 74 in May 2003, had allegedly been exposed to asbestos whilst employed in the early 1970s by defendant Holland Hannen and Cubbitt. A claim was submitted to Downlands Liability Management Ltd., the company which administers the affairs of the Excess Insurance Company Limited (EICL), the EL insurers on risk during Mr. Gilligan's employment; EICL has been in run off since 1994. In a letter to Mrs. Gilligan's solicitors (October 2, 2006), Downlands wrote:

“Following the Court of Appeal decision in Bolton MBC-v-MMI in March 2006, we have been reviewing coverage for disease claims, in particular mesothelioma claims under EL policies issued by EICL. Up until the 1975 policy year we are satisfied that the operative clause of the EL policies required injury to be sustained during the period of indemnity…

We have taken advice from leading counsel who has advised that following the decision in 'Bolton' the wording of the operative clause in the EICL EL policies for mesothelioma claims is triggered by the onset of the disease, namely when the injury is sustained and not when the employee was exposed.

A decision has been made by EICL to decline cover with immediate effect under policies which contain this operative wording for claims for mesothelioma. The effect of this decision is that we cannot continue to handle existing claims and will not accept any new claims for mesothelioma.”

Downlands refused to provide a copy of the EL policy to the claimant and so, concurrently with other actions, Plaintiff's Solicitor Dominic Collingwood submitted an application to the Court for: summary judgment, specific disclosure of the EL policy documents and directions. Days before the hearing, which was set for early January 2007 at Birmingham High Court, Downlands, on behalf of EICL, and Zurich, the insurer on risk at the time the mesothelioma developed, made an out-of-court settlement offer. A spokesperson for Excess denied that this case constituted a precedent, but having declared the withdrawal of EL cover for mesothelioma, Excess did, in fact, pay the claim. While pleased with the outcome for Mrs. Gilligan, Solicitor Collingwood remained concerned by the on-going uncertainty. “Until legal clarification is achieved, I am sure,” he said “that this issue will continue to rear its head, either in claims pursued by Corries Solicitors or those by other law firms facing a similar impasse.”16

Whether it was because there was only one insurer in the frame for his claim or for some other reason known only to Downlands executives, the outcome of a case brought by mesothelioma claimant Terry Henderson was less positive. Having been exposed to copious amounts of asbestos during employment at South Shields shipyards, the 72 year-old plaintiff brought a personal injury action against former employer John Readheads Shipyards. Downlands, acting as the managing agents for EICL, admitted liability for Henderson's occupationally-contracted illness prior to the Court of Appeal verdict in the Bolton case only to withdraw EL indemnity for Readheads afterwards. Solicitor Mark Quigley is appalled:

“The insurers' stance is unconscionable. The Bolton decision was clearly intended to refer to Public Liability cases only. Had the Appeal Court Judges appreciated the speed with which certain insurers would seek to rely on the judgment to avoid paying claims brought by terminally ill former employees like Terry Henderson, they might have reached a different conclusion regarding the trigger issue.”

Aside from EICL, other defendants reported to be running the Bolton defence in mesothelioma cases are Builders Accident Insurance Ltd. (BAI), and Independent Insurance Company Ltd., both in run off, and Equitas. It is important to note that whilst insurers with both old and new policies might take a more sanguine view of the “trigger” debate, companies in run-off which, by definition have no new policies, will only benefit if the trigger date is set when the condition is diagnosed.

Under the increasingly restrictive regime run by After the Events (ATE) Insurers, unusual cases which lack trade union backing are becoming increasingly difficult to run. Mr. H, 55 years old, has mesothelioma, having been exposed to asbestos during service in the Royal Engineers between 1967 and 1984; from 1984 to 1986 he worked as a maintenance engineer for an Exeter firm during which he was also exposed to asbestos whilst working with brake linings. Under The Crown Proceedings [Armed Forces] Act 1987, Mr. H is unable to sue the Ministry of Defence. Whilst the Exeter firm admits negligence for Mr. H's hazardous exposure, they maintain that this exposure “was deminimis and did not make a contribution to his development of the tumour, nor did it materially increase the risk of him developing the condition.” Mr. H says:

“I have been exposed to asbestos during the course of my previous employment through no fault of my own. I was allowed to work with asbestos freely. I was not given any warnings about the dangers of exposure to asbestos, nor was I provided with any masks for protection and no steps were taken to look after my welfare. As a result of that exposure, I have been left with a fatal condition and I continue to suffer with increasing symptoms and excruciating pain and breathlessness.”

The defendants and their insurers made no settlement offer and the case was set for trial in December 2006. After legal reviews which assessed prospects of success at less than 50%, ATE Insurance cover was withdrawn leaving Mr. H with a stark choice of facing a possible legal bill of 75,000 or withdrawing his case. He withdrew. The outcome of this case reveals an almost Catch 22 dilemma whereby to sue a negligent employer and its insurer a private client without union backing is totally dependent on the availability of, curiously enough, insurance.

Shipyard Claims

British shipyard workers have always been amongst the groups worst affected by asbestos-related disease and the areas with the seven highest SMRs17 for male mesotheliomas – West Dunbartonshire, Barrow-in-Furness, Plymouth, Portsmouth, South Tyneside, North Tyneside and Southampton – all have a shipbuilding history. Portsmouth shipyard worker Charles Frost routinely visited his grand-daughter on the way home from work in the 1960s and 1970s; tragically Michelle Campbell was diagnosed with mesothelioma in January 2006. A case she brought against the Ministry of Defence for negligence and breach of statutory duty was settled for the sum of 145,000 (2006). Although this is the first time a grandchild with secondary exposure has been compensated in Britain, cases for wives and children have succeeded.18 It seems likely that in some locations hazardous take-home exposures were reduced by the existence of on-site laundry facilities for workers' clothing such as that in the Devonport Dockyard, Plymouth. In 2005, the Chief Medical Officer highlighted a “striking difference” between male:female mesothelioma ratios in Portsmouth and Southampton (9:1 and 8:1, respectively) and Plymouth (25:1). Unfortunately, the protection afforded by the dockyard laundry was not absolute; Plymouth Solicitor John Meesham reports that local women were still put at risk by husbands, such as Mr. R., who returned home from the dockyard with his hair, clothes, shoes, socks and face covered with a white powdery substance. Mrs. R. is now suffering from mesothelioma.19

On January 29 & 30, 2007, the Appeal Court heard an action brought by the Department of Trade and Industry (DTI), successors to the National Dock Labour Board and the lead defendants in the case Rice v. SSTI and others, which could uphold the Government's liability for a new category of asbestos claims by dock workers.20 The Appeal Court Judges considered one issue only:

“Did the National Dock Labour Board owe a duty of care to Edward Rice and or Robert Thompson to take reasonable steps to protect their health and safety in respect of work carried out by them as registered dock workers whether for the Second defendant or any other registered employer to whom they had been allocated by the National Dock Labour Board pursuant to provisions of the National Dock Labour Board Scheme 1947 or that scheme as subsequently amended.”

The DTI's lawyers maintained that the Labor Boards which operated in Liverpool, Glasgow, Southampton and Hull, were not employers and simply hired and arranged labor for shipping and stevedoring companies; claimants' solicitor Neil Fisher disagreed:

“The system was abolished 40 years ago and this is the first legal challenge to have reached trial. The latency period for asbestos disease can be very long and in the meantime many of the small employers and their insurers can no longer be traced. As a result of this decision, claims can now proceed against the DTI. It is particularly important for dock workers in Liverpool where a fifth of all registered dockers were employed and large quantities of asbestos were imported… If the appeal is dismissed, then the case will go back to the High Court to determine whether or not the DTI were actually in breach of their duty of care which had been established at the earlier hearing last year.”

Judgment will be handed down in due course.

Recent Cases and Upcoming Appeals

On January 11, 2007, His Honor Gary Hickinbottom, sitting in the Cardiff County Court, issued his judgment in the case of Keith Jones v. Metal Box Ltd. & Crown Cork & Seal Ltd. The judgement, which awarded Mr. Jones, 60,000 for the mesothelioma death of his mother in 2001, makes very interesting reading on several points including:

  • The composition of "endless asbestos transfer belts" used in the manufacture of tin cans during the 1950s/1960s: in the absence of any physical evidence, the Judge ruled they were made of chrysotile contaminated with 1-7% tremolite.

  • The Court's comments on the testimony of the defendant's expert witness, Dr. Alan Gibbs: "There appeared to be no literature in support of Dr Gibbs' contention that there were significant chrysotile deposits, in commercial use, that were free of tremolite contamination… Dr. Gibbs' opinion that Mrs. Jones' mesothelioma was idiopathic was based upon three premises that I have found to be incorrect... In the circumstances, Dr. Gibbs' opinion as to medical causation is fatally undermined."

  • The processes involved in the installation and use of the “endless asbestos transfer belts,” including practices such as roughing up worn belts with a wire brush: “The experts are agreed that this would cause more airborne dust from the belt than any other operation."

  • The level of hazardous exposure experienced by packers who worked on the assembly line: "Mrs. Jones was intermittently but regularly exposed to small amounts of dust invisible to the naked eye..."

  • “The general view of national and international bodies is that there is no threshold below which exposure to chrysotile can be regarded as safe…If a person is exposed to chrysotile at levels above those founds in the environment at large, then I am satisfied that that person has an increased risk in respect of mesothelioma.”

On January 23 the defendants lodged their intention to seek leave to appeal this decision. Also on January 23, Judge Nicholas Marston issued a ruling at Swindon County Court which will enable the widow of mesothelioma sufferer Jack Stephens to pursue a claim for damages even though the case, which was brought more than three years after the date of diagnosis, was technically out of time. When Mr. Stephens was diagnosed in 1997 he did not take legal action because he was told his former employer, Anderson, Firmin & Collins, was in liquidation.21

In five months time (June 25-July 2, 2007), the Law Lords will hear the appeal by the claimants of last year's decision which ended UK compensation for pleural plaques. Highlighting the implications of the case, Derek Simpson, General Secretary of the trade union which is appealing the decision in Rothwell v. Chemical & Insulating Co. Ltd., said:

The Court of Appeal's judgment harms many of our members who have been exposed to asbestos in their working lives by denying them the right to sue their former employers for developing pleural plaques. People with pleural plaques should be compensated for the genuine injury that asbestos exposure has caused. That is why Amicus has pledged to take the lead to continue fighting on behalf of our members and all pleural plaques sufferers to get this cruel decision reversed."22

2. News Round-Up

Action Mesothelioma Day 2007 (AMD)

The UK's 2nd AMD will be marked by activities held throughout the country by asbestos victim support groups on Tuesday, February 27, 2007 including: sponsored balloon releases, meetings, asbestos rallies and ecumenical services A short video presentation commissioned for AMD 2007 will be shown on giant TV screens in city centers repeatedly throughout February 27. In London, MP Michael Clapham, Chair of the Asbestos Sub-Committee, will host a parliamentary reception from 4-6 p.m. in the Jubilee Room, House of Commons. For more information on these events, see: www.ibas.btinternet.co.uk

In the run-up to AMD, on February 21, there will be an opportunity to hear about the making of the UK's most influential asbestos documentary: Alice – A Fight for Life. John Willis will talk about the problems encountered in the making of this landmark documentary and the effects it had on the UK asbestos industry. This event will take place at 7:30 p.m. at the Frontline Club, 13 Norfolk Place, London, W2 1QJ; tickets cost 7. For more email: events@frontlineclub.com or call 0207 479 8947.

Control of Asbestos Regulations 2006

On November 13, 2006, The Control of Asbestos Regulations 200623 became law, despite protests from trade unions, NGOs and health and safety campaigners over its delicensing of work with asbestos textured coatings.24 The new regulations, which implement amendments by Directive 91/382/EEC to the European Asbestos Worker Protection Directive 83/447/EEC, replaced existing asbestos legislation, introduced a lower control limit of 0.1 fibres per cm3 for all types of asbestos measured over four hours and made asbestos training mandatory for all at-risk workers. Its introduction of practical guidelines and derogations for work involving “sporadic and low intensity exposure (to asbestos)” is widely regarded as a retrograde step.

The back-pedalling contained in these regulations combined with the pathetic asbestos awareness campaign introduced by the Health and Safety Executive (HSE) in September 200625, the withdrawal of the asbestos in schools campaign and the denial of the consequences of asbestos contamination of UK schools26 will, almost certainly, prolong the national epidemic of asbestos-related diseases.

Alimta

The consultation by the National Institute for Clinical Excellence (NICE) on the use of Alimta (Pemetrexed disodium) by the NHS for the treatment of mesothelioma started in 2005 and was due to be completed last year. Due, almost certainly, to the enormous number of submissions received,27 public outrage and the unprecedented success of a lobby of MPs held on October 17, 2006, the initial appraisal by NICE has been sent back to the Appraisal Committee. The report of the Appeal Panel, convened on October 27, 2006, explains specific points requiring reinvestigation.28 A letter dated January 17, 2007 from Carole Longson, Director of the Centre for Health Technology Evaluation, to consultees explains developments and anticipates another year of uncertainty, with a final decision being taken in Autumn 2007.29 Until then, the situation remains unsatisfactory with mesothelioma sufferers throughout Scotland and in some English and Welsh cities receiving the drug (Manchester and Swansea) while others do not.

On January 24, 2007, MPs expressed their continuing concern in Early Day Motion 729: Nice Appeal Decision on Alimta for Mesothelioma. Highlighting the relatively low cost to the NHS of Alimta treatment (3 million) and the additional duty of care the Government has to asbestos-injured workers from former nationalized industries, MPs called on the Secretary of State for Health to accept a “wider social responsibility.”

T&N Limited

More than five years after T&N Limited & Others went into administration, the High Court sanctioned settlements to enable UK Asbestos Trusts30, established under the terms of the Employers' Liability Schemes and the Company Voluntary Arrangement, to begin processing asbestos claims. According to Independent Trustee of the T&N Asbestos Trustee Company Ltd., Chris Melton QC:

“To date only 115 claims have been received by the Trustees and approximately 40% of those are from claimants with pleural plaques which is not currently a compensatable disease under English law. Any pleural plaques claims received are held pending the House of Lords decision later this year. A further 40% of claim forms received were incomplete and the Trustees are awaiting further information from the claimants before the claims can be processed…

First dividend rates have been declared by the Trustees in respect of the EL Trust and the T&N Trust at 61 p in the and 17p in the respectively with an anticipated further dividend after five years of 15p in the and 3p in the .”

Solicitor Simone Hardy, a member of the Trust Advisory Committee, characterizes the speed of resolving the T&N debacle as “frustratingly slow.” Her comments on January 26, 2007 substantiate reports from UK solicitors that no payments have yet been received by claimants:

“The proof of claim forms31 are being reviewed, and claims assessed, in order of receipt by Andrea Crichton. No claims have yet been paid out, although a number are more or less ready to be confirmed as 'established claims' under the terms of the Trust Distribution Procedures. However, payments cannot be made until the bill which deals with the exemption for T&N trust claims from the Compensation Recovery Unit receives parliamentary approval. The result of all this for claimants is months more delay.”

For more information on completing proof of claim forms contact the trust office on 0161 490 4559.

BBC Asbestos Alert

In September and October 2006, public notices and articles appeared in Broadcast Magazine, The Stage Aerial, Prospero, Stage, Screen & Radio and web links were set up on three internet sites to advise staff of potential asbestos exposure at the BBC's London studios at television center. During construction of this facility, sprayed asbestos fire proofing was used; asbestos contamination was later found in concealed cable ducts, wall boxes, cables, power points and floors in studios TC2, TC3 and TC5. It is thought that the category of employees most at-risk were those involved in technical operations such as riggers. The BBC has asked anyone who worked in these locations between 1990 and 2005 to register with the BBC by calling: BBC Help Line 08701 425468 or emailing: bbcasbestoshelpdesk@capita.co.uk

Adjournment Debate - House of Commons

An adjournment debate secured by MP Nigel Dodds (Belfast, North) on January 24, 2007, raised several important points including the:

  • incidence of asbestos-related disease in Northern Ireland; “Asbestosis is now the most common cause of work-related death in Northern Ireland”;32

  • disadvantages experienced by victims of para-occupational exposure, such as wives and children of asbestos-contaminated workers, who do not have access to the same compensation as injured workers even though their illnesses stem from the same negligence and breach of statutory duty;

  • need for expeditious handling of all asbestos-related claims;

  • issues for sufferers from pleural plaques which can “lead to breathlessness and pain;”

  • implications for Northern Ireland of the 2006 decision in the case of Rice v. SSTI and others which held that dock labor boards owed a duty of care to casual laborers.

Environmental Asbestos Exposure: Asbestos Still Killing After All These Years?

A legal conference in the North West scheduled for May 2007 will consider the ramifications of asbestos-contaminated land including the subjects of environmental audits, government regulations, development considerations and quantification of air and soil pollution. The proceedings on May 10, 2007 will focus on legal aspects and will attract CPD points; the agenda on May 11 will investigate the UK situation within an international context and features speakers from Australia, the U.S., Egypt and Poland. For more information email: laurie@lkaz.demon.co.uk

___________

1 http://www.hse.gov.uk/statistics/causdis/meso.htm. Those at highest risk of occupational exposure are: metal plate workers (including shipyard workers), vehicle body builders, plumbers, gas fitters, carpenters and electricians.

2 The most recent available statistics record 1,969 mesothelioma (in 2004) and 835 asbestosis deaths (in 2005). In an adjournment debate on January 24, 2007, Nigel Dodds, MP for Belfast, North, said: “Independent studies indicate that for the period 1930-2020 the number of asbestos-induced deaths across the country could be in the region of 820,000…”

3 As a young man Mr. Smith came into regular contact with asbestos fitting out shops and working in garages: “I was never aware I was at risk. I wore a mask to prevent breathing in thick dust rather than because of any health problem.” Mr. Smith's claim that the dust was sometimes so thick that people could not see through it was, Coroner Osborne said, quite shocking.

4 Gudgeon D. How many more will die from asbestos. The Cumberland News. November 1, 2006.

5 According to the SPICe briefing 9 November 2006 SB 06/94: “In 1992, the amounts awarded to a widow ranged from 5,500 to 12,500 and to a child from 600 to 10,500. However, recent awards of section 1(4) damages have increased from 20,000 to 28,000 to a widow and 5,000 to 10,000 for an adult child and 3,000 to 10,000 for an elderly parent losing an adult son.”

6 Asbestos bill plan moves forward. December 13, 2006. http://news.bbc.co.uk/1/hi/scotland/6176583.stm

7 Relatives must bring their claim within three years of the mesothelioma death.

8 In January 2007, the (Scottish) Mesothelioma Damages Bill completed the initial stage of implementation; it is expected to become law by March 2007.

9 According to a DWP Press Release (October 26, 2006): Eight hundred individuals should benefit from these rules in the short-term; the cost to the Government could rise from 10 million over the next three years to 40 million.

10 http://www.opsi.gov.uk/si/si2006/uksi_20063259_en.pdf

11 Contact Ms. Krikorian: 020 7216 7492; www.abi.org.uk

12 http://www.dwp.gov.uk/publications/dwp/2007/IIDB.pdf

13 The upper limit for a person aged 37 or younger from the 1979 Act is 65,531 ($128,365)

14 adelphi.iidbreview@dwp.gsi.gov.uk

15 See: Tipping the Balance: Exit Strategies of UK Asbestos Defendants. British Asbestos Newsletter. Issue 64. Autumn 2006. www.lkaz.demon.co.uk

16 Settlement in asbestos insurance 'test' case. January 11, 2007. http://www.yorkpress.co.uk/misc/print.php?artid=1115099

17 SMR: Standard Mortality Ratio

18 The widow of Barry Welch, who died from mesothelioma in April 2005 age 32, succeeded in the civil action brought against the employers of Mr. Welch's stepfather, Palmers Ltd., when Zurich (the insurers) conceded negligence for the scaffolder's hazardous exposure in the period 1977-79. A hearing will be held in January 2007 to decide the level of damages due to Mrs. Welch and her children Natasha (13), Samantha (11) and Letitia (8).

19 Dockyard laundry may have saved women's lives.
http://www.tuc.org.uk/h_and_s/tuc-12235-f0.cfm#tuc-12235-15

20 This case was brought by two claimants: Winifred Rice, representing the estate of Edward Rice, and Robert Francis Thompson; both men were dock workers at Liverpool Docks as a result of which, they allege, they contracted asbestos-related illnesses.

21 Jack Stephens worked for Anderson, Firmin & Collins as a ceiling fixer putting up asbestos tiles in stores and supermarkets; the company had central offices in London but sent contractors to jobs all over the UK.

22 http://www.amicustheunion.org/Default.aspx?page=4689

23 www.opsi.gov.uk/si/si2006/20062739.htm

24 See joint HSE-TUC Guide for Safety Representatives: The Control of Asbestos Regulations 2006 http://www.hse.gov.uk/asbestos/repsguide.pdf

25 “Don't take the gamble with Asbestos” was judged to be a far weaker initiative than the 1984 HSE “Goodbye Dusty” campaign. According to health and safety campaigner Hilda Palmer: “The new HSE campaign carries nowhere near the clout of the Goodbye Dust campaign HSE was too cowardly to defend. Instead workers are told to 'work safely' but are not warned that the wrong mask, the wrong vacuum or the use of hand tools could all create a serious asbestos risk. This HSE campaign is too little, too late.”

26 Notes of HSE briefing on: Health and Safety in the Education Sector. December 13, 2006 by Michael Lees.

27 Fifty submissions were received from: patient/carer groups, professional groups, manufacturers, associated guideline groups, assessment teams, research groups and others.

28 http://www.nice.org.uk/page.aspx?o=393787

29 http://www.nice.org.uk/download.aspx?o=401944

30 The trusts set up are: the UK Asbestos Trust and the Employers' Liability Trust neither of which will pay compensation to U.S. claimants.

31 These forms can be downloaded from the website of T&N's U.S. parent company: www.fmukclaims.co.uk

32 Adjournment Debate, January 24, 2007:
http://www.publications.parliament.uk/pa/cm200607/cmhansrd/cm070124/debtext/70124-0020.htm

___________

Compiled by Laurie Kazan-Allen
ÓJerome Consultants