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|ISSN 1470-8108||Issue 71||Summer 2008|
It is little wonder that the subject of asbestos cancer featured so prominently on the agenda of the May 14, 2008 Annual Asbestos Seminar of the House of Commons. The UK's silent epidemic currently causes more deaths than road traffic accidents and epidemiologists predict that a further 100,000 individuals will die from mesothelioma, one type of asbestos cancer, in years to come. When all types of asbestos-related diseases are factored into the equation, the final death toll could be considerably higher. In his presentation, Sheffield Consultant Thoracic Surgeon Dr. John Edwards described mesothelioma as the nation's number one public health disaster. Research into the treatment and care of this aggressive cancer in the UK is, he said, in the doldrums due to a lack of government support; in 2007 there was just one project dedicated to mesothelioma research funded by Cancer Research UK and none by the Medical Research Council, despite the fact that from 1995-2004 the incidence rate of this disease in UK females grew by 45% faster than any other cancer.1 Patients are getting older and are often diagnosed at a late stage of the disease. One study quoted showed that 70.2% of patients (525) were diagnosed with stage III disease. Any delay in diagnosing mesothelioma can impact negatively on treatment options. Medical protocols pioneered abroad should, Dr. Edwards said, be made available in this country. He urged the government to consult with patients, medical specialists and other stakeholders on the establishment of a National Research Centre for Asbestos-Related Diseases so that cutting edge research could be undertaken.
Some improvements have been made in recent years in the availability of support for mesothelioma sufferers and family members in the UK through initiatives mounted by cancer charities, victim support groups and government agencies.2 The work of Mesothelioma UK was the subject of the presentation by Liz Darlison, a Macmillan Nurse Consultant from Leicester, who categorized mesothelioma sufferers as a failed groups of patients. Having received a diagnosis of mesothelioma, patients turn to various information sources for answers: What treatments are available? Can my illness be cured? Am I getting the best treatment? Why did this happen? Where was I exposed? Will I survive? In the last few years, Mesothelioma UK, a national nurse-led initiative, has become a trusted information source and support service which works closely with other groups to raise mesothelioma awareness, promote research into the treatment and care of sufferers and provide up-to-date and free information on medical options, clinical trials, coping mechanisms, government benefits etc. Through its telephone helpline, website, quarterly newsletter, annual patients and carers' day conferences, promotion of Action Mesothelioma Day and efforts in formulating the Mesothelioma Patients' Charter, Mesothelioma UK is working to address the marginalization experienced by mesothelioma sufferers and their families.3
The background to the formulation of the National Mesothelioma Framework (NMF), a guidance document to ensure the provision of a nationwide standard of care for mesothelioma patients, was a focal point of the presentation by Dr. Mick Peake, Consultant and Senior Lecturer in Respiratory Medicine in Leicester's Glenfield Hospital. In 2005, the government began consultations with mesothelioma stakeholders to define the challenges mesothelioma posed and address the needs of patients. Through a series of meetings and discussions led by the Department of Health Lung Cancer and Mesothelioma Advisory Group, particular problems in dealing with mesothelioma were identified; they include: a wide differential in regional incidences of the disease, the difficulties and delays in diagnosing mesothelioma and the inexperience of consultant chest physicians who, on average, see fewer than 3 cases per year.4 Key recommendations of the NMF, published on Action Mesothelioma Day in February 2007, include:
A recent audit of the NMF found that although many networks had implemented key recommendations, important areas remain to be addressed such as the lack of dedicated time by lead clinicians and nurses. The majority of networks said that a shortage of funding constituted a barrier to the full implementation of NMF guidelines.
The significant gaps in the UK response to its mesothelioma epidemic were put into sharp contrast by the presentation of Professor Bruce Robinson, Director of the (Australian) National Center of Asbestos-Related Disease Research (NCARD), who described the Australian Government's unique approach to the country's worst industrial catastrophe. There were moral and economic reasons to face up to this tragedy, Professor Robinson said. The fact that thousands of innocent Australians could succumb to excruciating deaths from a ruthless cancer was reason enough but an $8.5 billion compensation bill faced by Australian asbestos defendants was another motivation behind the political commitment to find the means to prevent or cure this disease sooner rather than later.
If money were no object, Australian researchers asked what would it take to cure or prevent malignant mesothelioma? A plan was drawn up, nicknamed the Willoughby Challenge, which specified what would be done, who would do it, when the research would be conducted and how long it would take. The government committed $7 million for the research program which is following 11 themes including projects investigating the following:
Australian research has confirmed that early diagnosis is key to achieving the best outcome for patients; effective treatment should encompass a multimodal approach combining surgery, chemotherapy and immunotherapy. Citing research results regarding immunotherapy using the monoclonal antibody Anti CD40, Professor Robinson said: There is value in combining immunotherapy with chemotherapy in scientifically validated ways. One hundred and thirty days after tumor injection, 80% of mice were cured of mesothelioma when Anti CD40 therapy was undertaken after treatment with Gemcitabine had been given. On behalf of NCARD, Professor Robinson seconded calls made during the meeting for a UK Research Center on Asbestos-Related Diseases, and hoped that collaborative efforts between the two facilities would be productive.
The remainder of the seminar's program dealt with the fallout from the UK's widespread use of asbestos, much of which went into public building such as schools and hospitals. Reiterating his union's stance that all asbestos must be removed from schools, Barry Fawcett from the National Union of Teachers addressed the subject Asbestos in Schools: Protecting Staff and Pupils in the paper he presented to the meeting. Although asbestos-containing materials were widely used in the construction of UK schools for over 50 years, there is no comprehensive data on the scale of the contamination. Large-scale surveys indicate that between two-thirds and four-fifths of all schools contain asbestos. The increase of asbestos cancer mortality amongst teachers and school staff is irrefutable proof of the hazardous conditions experienced by those who work in or visit these buildings. The NUT is adamant that the Government must take decisive action to tackle the problem; accepting that an immediate decontamination of all school buildings is not practical, the NUT is calling for a phased approach to this work as part of planned refurbishments under the Building Schools for the Future (BSF) program. When it was first launched, the BSF promised the rebuilding of every secondary school in England by 2015; unfortunately, the roll-out of the program has been seriously delayed. Concluding his remarks, Mr. Fawcett restated the NUT's call for a progressive and comprehensive program of asbestos removal which prioritizes work on those schools where asbestos is in the worst condition.
When people contract mesothelioma, they look for explanations. In many cases they find that the cause was occupational exposure to asbestos. Obtaining compensation from former employers decades after hazardous exposures took place is problematic, especially if like Turner & Newall Ltd., formerly the biggest asbestos group in the UK, the company has gone into administration.5 In his presentation The T&N UK Asbestos Trusts, James Gleave updated parliamentarians on the situation regarding compensation claims submitted to the trust fund set up in the wake of the insolvency of the T&N group. Since the group went into administration (October 2001), a series of lawsuits and negotiations have succeeded in locating £91 million of funds to cover non-U.S. asbestos liabilities, including UK claims. As this sum is intended to cover claims for the next 40 years, the amounts awarded to individuals are proportionate, depending largely on the type and date of their exposure; successful applicants currently receive from 17%-61% of the value of their claims. Over the last 19 months, 630 claims have been processed of which 349 (55%) were approved, 75 (12%) were rejected and 206 are still being processed;6 total payments to trust claimants were £9.12m ($18.13m) with £700,000 being disbursed for medical costs, legal and other professional fees. To date, successful applications have been processed within 4 weeks and payments made within 7 weeks. Responding to this presentation, Plaintiffs' Solicitor Adrian Budgen expressed the opinion that the reason the number of Trust Fund claims was much less than had been expected was a reflection of the exasperation most Trust Claimants feel with the cumbersome bureaucracy they encounter. Criticizing the rejection by the Trust of 14 claims for environmental and domestic exposure prior to 1965, Budgen pointed out that the landmark ruling in the Hancock and Margereson case set the date of corporate knowledge for this type of exposure at 1925. Challenges mounted to the Trustees' rejection of cases for such exposure were brought by Mr. Budgen's law firm, Irwin Mitchell Solicitors, on behalf of the estates of mesothelioma victims Olga Jones and Annie Whittaker. Both cases were won after expedited reviews and adjudication by the appointed legal expert Ben Hytner QC.
The final presentations of the afternoon dealt with other injustices meted out to those suffering from asbestos-related diseases, including the discrepancy in access to bereavement damages and judicial moves to strike down compensation for pleural plaques. Having commended government plans to provide a lump sum, state-funded benefit to all mesothelioma sufferers, Ian McFall, from Thompsons Solicitors, turned to the issue of bereavement damages, payments funded by employers or insurers to compensate grieving relatives for emotional distress or loss of companionship of a close family member. In England and Wales, he said the level of compensation is set at £10,000 by law and is only payable to the spouse but over the border in Scotland payments up to £30,000 have been made to bereaved widows. Not only widows but other family members in Scotland can also receive compensation of between £10,000 to £15,000. The injustice of receiving less money for the death of an English husband or Welsh wife rubs salt in the wound and compounds the persistent fury and rage caused by the knowledge that a loved one's death was caused by negligence and could, so easily, have been avoided.
As a result of a 2007 verdict by the House of Lords, pleural plaques sufferers are no longer able to obtain compensation in the UK. The role played by the trade unions in the campaign to overturn this ruling was the subject of comments made by John McClean, National Health & Safety Officer of the General and Municipal Boilermakers' Union (GMB). Working together, the GMB and construction workers trade union (UCATT), have initiated Parliamentary lobbies, held political briefings, coordinated postcard and letter writing campaigns and had the pleural plaques issue raised at the highest levels of Government. The subject was debated by the Labor Party National Executive Committee and is on the agendas of upcoming conferences of the UCATT, the Welsh Trade Union Congress and the GMB. Concluding his remarks, Mr. McLean said that even though the Prime Minister has promised consultation on the pleural plaques issue, the campaign will continue until sufferers receive the recognition and compensation that is their right.
In the absence of MP Michael Clapham7 on Parliamentary business abroad, the three hour session was co-chaired by MPs Linda Gilroy, John McFall and Ian Gibson. Little could they have predicted that just weeks after the meeting, a major exposé in a national newspaper8 would uncover significant dangers to people who worked in or used the 170 year old Palace of Westminster from the presence of deteriorating asbestos-containing material throughout its structure. In early 2008, a report by Goddard Consulting for the Parliamentary Works Service Directorate criticized inadequate management of asbestos insulation hidden in ageing service shafts and piping ducts such as one asbestos-contaminated area behind the Commons kitchen which was left open in hot weather:
On opening this door cold air rushed in and it was like standing in a wind tunnel. Asbestos fibres would readily be dispersed in the kitchen area if the dust and debris was disturbed in the riser (service shaft) in any way. 9
MPs had been reassured in 2005 that asbestos in the Palace of Westminster was being managed safely. And yet, more than half the samples taken by consultants in August 2007 from 4 service shafts contained amosite (brown asbestos). MP Ian Gibson, Chair of the All Party Parliamentary Group on Cancer and co-chair of the 2008 Asbestos Seminar, was appalled by the revelations made in The Guardian saying: How ironic that politicians don't keep their own house in order as far as asbestos is concerned. It brings home the need to exercise vigilance and demonstrate by example. No one can be sure how much asbestos was inhaled by people who attended the seminar in Committee Room 5 on May 14. One thing is certain; when drafting the agenda for the 2009 meeting, they won't have to look further afield than Westminster for a pertinent subject.
In a classic case of British understatement, politicians expressed profound disappointment at developments which could have catastrophic implications for thousands of victims of long-tail industrial diseases such as mesothelioma, asbestosis and lung cancer. In Early Day Motion (EDM) 2010, MPs criticized the adoption on July 4, 2008 of The Employers' Liability (Compulsory Insurance) (Amendment) Regulations 2008,10 which will end legal requirements to retain corporate insurance records for 40 years.11 The MPs noted that:
there is no reliable mechanism for ensuring the preservation of insurance policies if a company ceases trading; ... and (made) calls on the Government to establish a central electronic database for the compulsory recording of all employers' liability insurance policies before the repeal of regulation 4(4) of the Employers' Liability (Compulsory Insurance) Regulations 1998.
A subsequent parliamentary motion (EDM 2012) urged that the regulations, due to come into force on October 1, 2008, be annulled.12
The requirement to archive corporate insurance details was adopted in 1999 to help occupational disease claimants trace missing policies. In 2007, government concerns over administrative burdens to business identified the potential for major cost savings by scrapping Regulation 4(4) of the 1998 regulations. Under the principles of Better Regulation it is now official policy to regulate only where necessary. As the Department for Work and Pensions explains in The Government Response (May 2008) to A Review of Certain Provisions within the Employers' Liability (Compulsory Insurance) Regulations 1998:
The current regulation carries no penalty for non-compliance and is therefore not enforced in practice. The Government is not convinced that effective enforcement is practical and the respondents (to the consultation) did not put forward a compelling case to show that such a regime could be implemented. Retaining the current ineffective regime because an appropriate regulatory alternative has not been developed is not an acceptable solution.13
This legislative overhaul has disappointed some and outraged others. Amanda Stevens, President of the Association of Personal Injury Lawyers (APIL), believes that placing the burden on the victim is unacceptable: Removing the regulation which obligates employers to retain their insurance policies really weakens an already creaking system of protection for workers.14 A Parliamentary Briefing on these developments by APIL goes even further:
Not only should this regulation be retained, but more could, and should be done to make tracing insurance information easier for victims of negligence. A central electronic database would be the most efficient and effective way of protecting employees against employers who flout the law.15
The Trades Union Congress (TUC) echoes APIL's criticisms saying:
In respect of regulation 4 we believe that there is a very compelling case for the retention of records today there are many thousands of cases where people are unable to trace an insurer because of inadequate record-keeping by employers prior to the Regulations being introduced
The TUC would not support the removal of this regulation unless there was a national database of all policies suitably protected against any potential accident or disaster. Alternatively we believe the current regulation should be retained but would ask that, when the legislative opportunity arises, a penalty for con-compliance would be introduced.16
The Asbestos Victims Support Groups' Forum (AVSGF) is scathing of the government's manic determination to reduce administrative burdens on UK plc without due regard for the negative impact on injured employees. An AVSGF policy statement concluded that:
The only just and reasonable way forward for all injured workers is for the insurance industry to stand as the insurer of last resort and pay full compensation where judgment is obtained because millions of pounds have been paid to insurers for premiums bought by almost every employer pre-72, and post-72 when there was a legal requirement to do so... Injured workers deserve no less than motor traffic victims: a guarantee fund to satisfy a judgment where, through no fault of the injured party, insurance is not found.
There is little doubt that victims of road traffic accidents enjoy more favored status than victims of industrial disease. Glaring inconsistencies between the two systems are detailed in an academic paper by Chris Parsons:
The position of the road accident victim is enormously secure, because gaps in the compulsory insurance system have been plugged over time by a combination of court decisions, European law, domestic legislation and voluntary codes of conduct. By contrast, the employers' liability system remains a flawed one and it will continue to fail some employees, who will not receive the compensation to which they are entitled.17
In recent years, the government has set in motion (see article 1) initiatives to address the injustices experienced by victims of asbestos-related disease. Eliminating the legislative requirement to retain insurance records is a retrograde step which prioritizes the short-term needs of the business community at the expense of vulnerable individuals. The statutory instrument which implements this travesty should be annulled at the earliest opportunity.
In a presentation he submitted to a Congressional hearing on July 22, 2008, Dr. Barry Castleman cited the Four Dog Defense to sum up the standard legal strategies of asbestos defendants.
Under point 2 would be included the defense yes, you were negligently exposed to asbestos at your workplace but you could not possibly have contracted mesothelioma from such a low level of exposure. This defense was soundly rejected by Mr. Justice Roderick Evans at the Royal Courts of Justice when he handed down the verdict in the case brought for the mesothelioma death of Mr. Rowland Henley Maggs against Alfred John Anstey trading as A. J. Anstey, his employer from 1966 to 1972. Mr. Maggs, who died in 2005 aged 69, was exposed to asbestos on one occasion during his employment. Carrying out his duties as a lorry driver, he was required to collect bags of raw asbestos fiber from Avonmouth Docks, Bristol and deliver them to the Universal Asbestos Manufacturing Company in Watford.18 Medical evidence given by Dr. Robin Rudd confirmed that exposure such as that experienced by Mr. Maggs on that fateful day materially increased his risk of developing mesothelioma. The defendant aggressively contested the case but to no avail. The Judge found the evidence provided by the plaintiff on a DVD recorded 2 weeks before he died convincing and on March 30, 2007 awarded his estate the sum of £230,000.
The first plaintiff's verdict issued by a UK court in a contested asbestos-related lung cancer case was handed down on May 16, 2008 by Mr. Justice Mackay in John Shortell v BICAL Construction Ltd. (sued as successor to BIC Construction Ltd.) in the High Court, Liverpool. Mr. Shortell was a fairly heavy smoker who died of lung cancer in 2006 aged 74 (see defense number 4 on previous page).19 As a jointer the deceased worked in power stations fixing together sections of large cables which carried 33,000 volts:
He often worked close to laggers who were using asbestos. [So] that when they mixed it the atmosphere was very dusty and sometimes so much so that 'you couldn't easily see what you were doing so you had to stop work for a bit.' The asbestos was carried up ladders to scaffolding or grating where the laggers were working and bits of asbestos fell on the grating and occasionally landed on him and returned to dust. He said dust was floating down and landing everywhere as he worked and he used the phrase 'the dust fell like snow.'
The importance of this test case was reflected by the number of expert witnesses who participated; these included two consulting engineers, two medical experts and two epidemiologists. Much of the 15 page verdict detailed attempts to assess the likely asbestos fiber load inhaled by Mr. Shortell; the calculations relied on an interview with the claimant (2 months before he died), published material, internal corporate documents, guidance from the Health & Safety Executive and professional experience. The Judge was satisfied that the lifetime burden of asbestos suffered by Mr. Shortell was as he (consulting engineer Mr. Deary) stated, namely 99 fibres/ml years. In his summation of the medical evidence, the Judge:
On page 14 of the 15 page judgment, the Judge wrote:
That the defendant should bear the lion's share of responsibility in a case such as this is a proposition which does not give me pause. Throughout this period it was under a duty first at common law and latterly under statutory instrument to take steps for the care of the deceased which it did not take In the final analysis I have to decide what is just and equitable as between the defendant and the claimant in this case. I am satisfied that a reduction should be made for the deceased's contributory negligence (smoking) and I assess it at 15%.
Once the Judge had ruled on the issue of liability, the parties agreed on a settlement of £62,500 for general damages. Although Allan Gore QC, the plaintiff's barrister in the two cases discussed above,20 was delighted with both outcomes, he was particularly pleased with the Shortell verdict given the paucity of cases brought for asbestos-related lung cancer in the UK. Neither case was appealed.
On June 3, 2008 a hearing began in the High Court concerning the issue of when insurance cover is triggered in the case of mesothelioma; it is expected to finish by the end of July with Mr. Justice Burton's ruling following in October-November. At stake are the rights of thousands of victims to obtain compensation from their former employers' insurers.21 During the court proceedings regarding the six test cases, there has been intensive debate over insurance industry practices and policy wording for occupational disease cover.
On June 9, 2008, Ofcom gave its ruling on a complaint by Professor John Bridle brought on his behalf by Fisher Scoggins LLP23 about a You & Yours BBC Radio 4 program broadcast on October 18, 2006.24 In a dossier on pages 45-63 of the Ofcom Broadcast Bulletin Issue number 111, June 9, 2008, the regulator reported that it has not upheld Professor Bridle's complaint of unfair treatment:
Ofcom considered that the programme makers took reasonable care to satisfy themselves that the information presented in the programme relating to Professor Bridle's expertise, qualifications, business practices and his claims about testing asbestos had not been presented in a way that was unfair to Professor Bridle. Nor had relevant information been omitted or ignored. Professor Bridle had been offered an opportunity to contribute. Ofcom therefore found no unfairness to Professor Bridle in the programme as broadcast.25
As expected, the Scottish Parliament took steps on June 24, 2008 to reverse the effects of the House of Lords ruling in the Rothwell case;26 the Damages (Asbestos-related Conditions) (Scotland) Bill stipulates that compensation may be recovered for asbestos-related conditions such as pleural plaques, symptomless pleural thickening and symptomless asbestosis.27 Two weeks after Holyrood acted, the Ministry of Justice (Westminster) launched a consultation exercise on the best and most appropriate way to respond to the Law Lords decision (on the pleural plaques issue).28
On Tuesday, August 12, 2008 from 7:30-9 p.m., a book launch will be held in the Reception Rooms of Rochdale -Town Hall of Defending the Indefensible: The Global Asbestos Industry and its Fight for Survival, by Jock McCulloch and Geoffrey Tweedale. Between them these two authors have amassed a considerable expertise on asbestos issues having published numerous papers on the subject as well as landmark texts including Asbestos Its Human Cost (JM, 1986), Asbestos Blues (JM, 2002) and Magic Mineral to Killer Dust (GT, 2000). Until September 30, 2008, the book can be purchased with a 20% discount29 from Oxford University Press, email: firstname.lastname@example.org; for further information, contact: Jason Addy: email@example.com
1 There were also significant increases in incidence rates in UK females of liver cancer, malignant melanoma and oral cancer. The largest increases in male cancers were for malignant melanoma, prostate cancer and mesothelioma, up 55%, 40% and 35% respectively.
2 On January 23, 2008, the National Institute of Clinical Excellence published final guidance recommending the use of pemetrexed disodium (Alimta) for the treatment of malignant pleural mesothelioma in the majority of people with this fatal cancer. Treatment will now be available on the National Health Service throughout the UK, thus ending a postcode lottery which had seen patients in some areas denied the drug.
4 The work of the British Thoracic Society: Lung Cancer and Mesothelioma Specialist Advisory Group was highlighted by Dr. Peake, who said that its revised Statement on the Management of Malignant Mesothelioma (2007) and its revised Guidelines on the Management of Pleural Effusions (2008), made a vital contribution to effecting positive changes in the UK's approach to the treatment of patients affected by these conditions.
6 Regarding the issue of pleural plaques, James Gleave said: In line with the current UK legal position, claims for pleural plaques have had to be rejected.
7 Michael Clapham is Chair of the Asbestos Sub-Committee, which organizes this event, and Chair of the All Party Parliamentary Group on Occupational Safety and Health.
8 Bowcott Owen. Parliament warned of asbestos threat. The Guardian. July 17, 2008, page 3.
9 Camber R. Revealed: Houses of Parliament at risk from deadly asbestos. July 17, 2008.
10 EDM 2010: Employers' Liability Compulsory Insurance. July 9, 2008.
12 EDM 2012: Insurance. July 10, 2008.
14 Kelly T. MP slams plan to scrap work law. July 17, 2008.
15 Parliamentary Briefing from the Association of Personal Injury Lawyers: Repeal of Regulation 4(4) of the Employers' Liability (Compulsory Insurance) Regulations 1998.
16 TUC Response to Review of ELCI 2007.
17 Parsons C. Employers' Liability Insurance How Secure is the System? Industrial Law Journal, Volume 28,2, June 1999, pp. 109-132(24).
18 Montgomery P. Maggs v Anstey. APIL PI Focus Vol 18, Issue 4.
19 Mr. Shortell was an ex-smoker having given up the habit in the 1980s.
20 Barrister Allan Gore was partnered by barrister Andrew McDonald in the Shortell case and barrister Richard Viney in Maggs v. Alfred John Anstey trading as A. J. Anstey.
21 High Court begins hearing asbestos test case. The Times June 4, 2008.
22 According to its website: Ofcom is the independent regulator and competition authority for the UK communications industries, with responsibilities across television, radio, telecommunications and wireless communications services.
26 See: Kazan-Allen L. Justice Delayed, Justice Denied. British Asbestos Newsletter, Spring 2008.
29 Quote SSPROM20 when ordering direct from OUP.
Compiled by Laurie Kazan-Allen