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|ISSN 1470-8108||Issue 75||Summer 2009|
Welcoming delegates to the 2009 seminar of the Asbestos Sub-Committee, Chairperson Michael Clapham MP highlighted some of the key accomplishments of this all-party parliamentary body which has been working to raise the national profile of asbestos issues for 10 years.1 Major achievements include: ending the double diagnosis of mesothelioma, pressing for measures to streamline bureaucratic procedures and increase the availability of government benefits, launching campaigns to reverse iniquitous House of Lords decisions regarding mesothelioma and pleural plaques, kick-starting the debate on establishing a national research center for asbestos-related diseases and exposing the widespread asbestos contamination of schools. The Chair paid tribute to the work of Mrs. Nancy Tait, a veteran campaigner for the rights of asbestos victims, who died in February 2009; a note signed by Prime Minister Gordon Brown was presented to John, Nancy's son, which said:
Nancy Tait's life work exemplified the very best of the human spirit and I am honoured to put my name to this brief note of appreciation for the work of this outstanding individual.
Shortly after last year's asbestos seminar, news appeared in The Guardian of a serious asbestos problem in Parliament.2 It was therefore appropriate that the first speaker on the 2009 agenda was Mel Barlex who, as the Parliamentary Director of Estates, is responsible for managing asbestos in Westminster. Having described the complexities of dealing with asbestos in the historic and rambling premises which constitute the British Parliament, Barlex explained the state-of-the-art management techniques which have been adopted to protect workers and building users from hazardous exposures. Photographs of labelled asbestos products from the House of Commons basement illustrated the extent of the problem in the pipe tunnels and the need for a robust system to enable essential repairs to be carried out. Despite the considerable work which has been done on identifying on-site asbestos contamination, unwelcome surprises do occur. The very morning of his presentation, Barlex learned of the presence of asbestos in Portcullis House, a building which provides additional office space for MPs, and is linked to the Palace of Westminster by a subterranean passageway. Although Portcullis House was opened in 2001, a year after the national asbestos ban had been adopted, and the building specifications stipulated the use of safer materials, asbestos-containing pipe flanges had been used by contractors. Barlex said that the contamination of this 21st century building reinforced the need for constant vigilance regarding the asbestos threat. Responding to questions from delegates about rumors of a protracted shutdown of Parliament to allow essential repairs and refurbishments, including the removal of all asbestos, Barlex confirmed that a study was ongoing but that no decision had yet been taken.
The contrast between the well-resourced and considered program for the management of asbestos in Westminster as described by the first speaker and the haphazard efforts and slipshod practices which characterize the management of asbestos in schools as detailed by the next two speakers could not have been more marked. Having received multiple hazardous exposures during her career as a schoolteacher Mary Bousted, General Secretary of the Association of Teachers & Lecturers, was in no doubt that the current system for the management of asbestos in schools is fundamentally flawed. She told the seminar that:
The major problem is that there is no clarity about who is responsible for asbestos in schools. Teachers responsible for the asbestos register and management often receive no training to fulfil this responsibility. Knowledge of asbestos content in buildings is poor. And they have no clear idea of their responsibilities (other than showing the asbestos register to builders when they come on the school site).
Local authorities, whose responsibility it is to maintain a register, vary greatly in the performance of their responsibilities. Too many local authorities do not have an asbestos plan; too many do not have inspectors trained in the management of asbestos, and the inspections rely on visual evidence which gives no indication of the level of airborne asbestos fibres.
The increasing incidence of asbestos cancer amongst teachers indicates the consequences of hazardous exposures experienced in schools. Carole Hagedorn, a secondary school teacher of modern languages who was diagnosed with mesothelioma in June 2008, categorized her fatal illness as some kind of collateral damage in the education game. Comparing the swift government reaction to the outbreak of swine flu with decades of vacillation over asbestos, Ms. Hagedorn asked:
who is in control? At present we have the government, the local authorities and the HSE (the Health & Safety Executive) a most unhappy allegiance of incompetencies It is a devastating indictment of our society that a country which is so technologically advanced in some ways can be so primitive when it comes to ensuring the basic health and safety of its citizens.
Nothing but the complete removal of asbestos from schools will afford future generations the right to learn and flourish in a safe environment.
According to epidemiologists, construction workers constitute the highest risk category in the UK for contracting mesothelioma, with nearly 50% of the male cases considered in a 2009 study belonging to this group.3 A report As Safe as Houses? launched at a House of Commons event just a fortnight after the seminar reinforced the threat to construction workers posed by asbestos in domestic dwellings:
the report shows that people involved in repairs, maintenance and cleaning (of social housing) are vulnerable when unauthorised work occurs, when asbestos is undetected or when they are not informed of its presence.4
The presentation by Wilf Flynn, Executive Council Member of the Union of Construction, Allied Trades and Technicians (UCATT) focused on one case study which revealed typical hazards experienced by tradesmen. The incident in question, which was the subject of a BBC Inside Out North East broadcast in October 2008, occurred as a result of work commissioned by the Carlisle Housing Association (CHA). Describing the content of the BBC exposé, Mr. Flynn said:
the programme highlighted concerns of the workforce who had received no training on the removal and handling of asbestos, and the cavalier way asbestos was transported around the city and was left lying in gardens employees stated they had sought masks only to be told protective clothing for that week had been handed out.
An apprentice electrician who took part in the TV program was subsequently dismissed whilst working in Cumsdale, 6 miles from Carlisle; having had her van confiscated by CHA managers who turned up at this isolated worksite, the young woman was left to find her own way home carrying heavy tools and dependent on an infrequent bus service. UCATT officials met with Lord McKenzie, in the presence of HSE personnel, to discuss the behaviour of the CHA. The unsatisfactory developments which followed included minimal input from UCATT members who were prevented from taking part. Criticizing the Carlisle asbestos debacle, Alan Ritchie, UCATT's General Secretary, said:
There has been a huge loss of confidence in the HSE. It is their role to ensure that workers health is not placed at risk. The failure to hold a credible investigation into what are potentially serious health concerns has meant that our members in Carlisle have no confidence in that body. An urgent inquiry is needed into how they conducted this investigation.5
In another presentation, former lagger and trade unionist Richard Morgan expressed his concerns over the vicious cuts in funding and resources of the HSE. Examining the knock-on effect of the HSE's decreased budget, Morgan said:
There are fewer inspectors on the ground to undertake their monitoring role. There are few risks to unscrupulous cowboys who can make a fortune with unlicensed and dangerous work practices. There will be a rise in the incidence of fly-tipping and bad strips as the chance of detection is further reduced. A well organised asbestos removal strip which is properly monitored, and undertaken by a licensed asbestos remover can typically cost over a million pounds. A poorly undertaken bent job may be as little as £200k. This still leaves a lot of profit for the cowboy.
GMB member Morgan highlighted the positive impact trade union safety representatives can have on increasing asbestos awareness at grass-roots levels and called for mandatory asbestos input into introductory and refresher training courses for workers.
In England and Wales responsibility for ensuring the safe disposal of asbestos-contaminated products and debris belongs to the Environment Agency (EA). Speaking in his capacity as the EA's Head of National Technical Services, Phil Lodge addressed the subject of the UK Regime for Disposal of Asbestos Waste: Strengths and Weaknesses. Over the last two decades, the adoption of legislation has been pivotal in reducing environmental risks associated with the disposal of asbestos-contaminated waste:
Approximately 300,000 tonnes of asbestos waste was sent to landfill in 2007 at a direct cost of around £60/tonne for bonded asbestos and £120/tonne for fibrous asbestos. Disposing of such waste via a transfer station more than doubled the costs incurred. Attempting to avoid these charges, unscrupulous individuals engage in fly-tipping of hazardous asbestos debris and there are about 3,000 such incidents a year, most of which are cleaned up by local authorities. The Environment Agency rigorously applies its Enforcement and Prosecution Policy where asbestos waste is mishandled. To assist people affected by fly-tipping on privately owned land, the EA is working with the Landowner Partnership Project.6 There are currently 15 commercial hazardous waste landfills and 40 dedicated asbestos cells at non-hazardous waste landfills in the UK. Regarding the use of new technology to treat asbestos waste, Lodge mentioned: plasma arc, thermo-chemical conversion technology and vitrification.
The keynote presentation of the afternoon, The Presence of Asbestos Testing in Everyday Household Products,7 was given by Paul Zygielbaum, the Product Testing Project Manager of the Asbestos Diseases Awareness Organization (ADAO), a non-profit advocacy group.8 Since being diagnosed with malignant peritoneal mesothelioma in 2004, Paul's determination to survive has been fuelled by his anger at being poisoned with asbestos, at having to undergo brutal treatments and ongoing medical monitoring, at the permanent presence of a killer stalking me, and at the anguish of my loved ones. Having considered the threat posed by the presence of asbestos in many U.S. products, Paul originated and supervised a project to examine items used by homemakers and children. Developing protocols for the testing of these products was a complex and time-consuming procedure which drew partially on Paul's engineering and management skills, but primarily on the technical expertise and teamwork of the three independent laboratories involved in Phase 1 of the project: the Scientific Analytical Institute (SAI), MVA Scientific Consultants and Bureau Veritas North America. The SAI results of Phase 1 were announced at an ADAO press conference in 2007. Contamination was found in:
Predictably, the press interest in these findings was considerable. The results of Phase 2 testing are currently under consideration and will be announced in due course. By confirming the presence of asbestos in a selection of common household products, the ADAO project revealed the hidden threat lurking on store shelves and in DIY depots throughout the country:
Use of such products in normal activities in homes and gardens, or anywhere else, may unwittingly expose homemakers, children and others to asbestos. Asbestos is not just a workplace hazard but must be considered a hazard anywhere that such products are used
It is logical to conclude that an effective ban on asbestos must address its presence both as an intentional ingredient and as an unintentional contaminant, and that, due to the apparent pervasiveness of such contamination, ensuring compliance with such a ban will require a robust, mandatory, ongoing product-testing program at the national level.
The level of interest generated by the keynote speech was considerable, not least because seminar delegates were aware that a testing regime such as that described does not exist for UK products.
The timing of the 2009 seminar was fortuitous coming shortly after two groups of activists had taken part in private meetings with the Prime Minister. On May 6, grass-roots asbestos campaigners met Gordon Brown in his House of Commons office. On the agenda were a series of issues including: the fatal legacy left by asbestos manufacturing in Britain such as the environmental contamination in Rochdale of the 72 acre site formerly occupied by Turner & Newall, the consequences of low level exposures to asbestos, the asbestos contamination of schools and the urgent need for a coordinated national research strategy for the medical treatment of asbestos-related diseases.9 Just hours before the seminar began, a delegation of campaigners and trade unionists spoke to the PM about the urgent need to tackle asbestos in schools; they urged the implementation of a comprehensive program which would mandate: asbestos audits and risk assessments for all schools, the reinstatement of the asbestos in schools campaign and the identification and removal of asbestos products as part of a phased refurbishment program.
The profile of asbestos on the national agenda has rarely been higher; this is a result of the combination of political pressure and high-profile activities such as the asbestos fringe meeting at the GMB Congress,10 the Daily Mirror's asbestos campaign, a slew of recent Early Day Motions,11 high-level discussions and ministerial meetings. Even with all this attention, the pleural plaques issue remains unresolved in England and Wales. On June 18, 2009, the right of Scottish pleural plaques victims to be compensated for their condition was reinstated by the Scottish Parliament. There now exists a two-tier system whereby those sufferers living north of the border can obtain substantial payments from negligent employers while those in the south cannot. The frustration of people like former power station worker James Johnson and shipyard worker Milton Caisley is tangible. Seventy-six year old Caisley told a Tyneside reporter: I keep thinking of the miners by the time they got given compensation, half of them had died. The same will happen to us.12
Insurers continue to whine about the effects that asbestos liabilities are having on their bottom line as evidenced by presentations and discussions at industry events such as the Association of Run-Off Companies Congress in February 2009 (London) and the Cologne Commutation Rendez-Vous 2009.13 The fact that some asbestos claimants are succeeding in obtaining higher awards with the advent of new medical treatments and the creation of new expense categories has not gone unnoticed by an industry which has done its best to minimize asbestos payouts.14 Addressing delegates at the London event, Nigel Morson, formerly of the RSA15 and now a consultant, said that the issue of asbestos claims was 'not under control' and warned that figures predicting the possible number of future claims were 'immensely uncertain'. According to Morson, estimates of European insurers' asbestos liabilities of $64bn (€50bn) could be larger due to rising life expectancy and the long latency periods of asbestos diseases. Insurers can, he added, expect to see lots more claims coming in. New medical treatments to prolong the life of a mesothelioma sufferer could add a further £20,000 ($27,770) to an insurance claim.
While there is no central UK database of asbestos personal injury claims, a recent trawl of publicly available information revealed successful 2009 outcomes in the mesothelioma cases of:
A cursory study of asbestos literature on the websites of specialist law firms suggests that it is not unusual for these cases to be settled within 6 months of the commencement of proceedings. Of the 31 asbestos settlements worth a total of £16 million achieved by one law firm in 2008, 9 (~30%) of the cases were run on behalf of the victim's widow.
Although anecdotal evidence shows an extension of allowable expenses in a handful of mesothelioma cases, the sums involved are small taken within the context of the multi-billion pound insurance industry.18 On March 13, 2009, Judge Platts sitting in the Liverpool County Court allowed a £3,600 claim for plane tickets from Australia to the UK submitted by the family of Kenneth Hutchings, so that they could spend time with him while he was in hospital. The Judge explained:
The claimant claims that those costs of flights are recoverable on the basis that the need for companionship was effectively a need of the deceased, which was created by the illness which in turn was created by the defendant's negligence. The defendant submits that the daughter and son-in-law and granddaughter were not providing a service, therefore it was outwith the normal claim for nursing care and assistance or attendance and therefore such claims are not recoverable in principle.19
Disputed values for Mr. Gardner's DIY services and loss of future income were settled in favor of the plaintiff and a total judgment of £409,002.03 was handed down. Concluding the case, the Judge addressed Mrs. Hutchings saying:
can I somewhat belatedly give you my sympathy for the untimely death of your husband. I hope that now this is over you can draw a line under it and the money will go some way to easing the pain.
A claim won by solicitors representing a carpenter who contracted mesothelioma due to negligent exposure by his employer J Murphy & Sons Ltd. included the sum of £12,500 for the care the deceased received at the North London Hospice. According to the law firm which represented the plaintiff:
Even though it has long been possible to recover monies for the value of care provided by relatives this case is thought to be the first of its kind where compensation for the value of the care of hospices has been awarded.20
UK asbestos victims have endured many challenges brought by well-resourced legal experts retained by insurance and corporate defendants. In several instances, these ploys have succeeded in depriving claimants of compensation such as that previously awarded to people suffering from pleural plaques. On June 9, 2009, the Asbestos Victims Support Group Forum, (the Forum) mounted a colorful demonstration outside the London venue where the Association of British Insurers was holding its biennial conference. The protestors highlighted the injustice meted out to asbestos victims, many of whom are denied compensation due to the inability to trace Employers' Liability (EL) insurance policies, and drew attention to a £14 million windfall insurers received prior to October 2008. Before then, money paid by the government to asbestos victims was not reclaimed from culpable insurers. Explaining the reason for the demonstration Forum Chair Tony Whitston said:
The insurance industry saved millions of pounds in compensation that was instead paid by taxpayers. They should do the decent thing and donate this money to researching ways to help future victims of the asbestos time bomb.21
Under-Reporting of Compensable Mesothelioma in Alberta published in volume 52 (2009) of the American Journal of Industrial Medicine,22 concludes that Patient under-reporting of compensable mesothelioma is a problem and raises larger questions regarding under-reporting of other asbestos-related cancers in Alberta. The authors highlight the challenge Alberta faces to implement strategies:
to increase filing rates and consequently alleviate some of the economic hardship burdening workers diagnosed with occupational cancer by compensating for wage losses and paying survivor benefits as well as treatment costs that are not covered under insurance plans, such as prescriptions, for example.
In the same issue of this journal was another paper: Asbestos-Related Disease Among Sheet Metal Workers 1986-2004: Radiographic Changes Over Time. The study conducted by L. Welch and E. Haile confirmed a conclusion reached by researchers Cookson et al. in 1986 that asbestosis should be considered an active disease three decades after exposure ends. In the 21st century, the risk of contracting asbestos-related disease amongst U.S. construction workers persists even though the national use of asbestos has decreased dramatically. The authors conclude that:
Workers exposed to asbestos in the construction industry need continued medical surveillance for early detection of disease and prevention of cancer Tailored efforts to reach these workers with information on smoking cessation is essential, given the increased risk of lung cancer from asbestos exposure and an additional increased risk with asbestosis; specific programs for construction workers exist and are successful.23
Mesothelioma in Australia Incidence 1982-2005, Deaths 1997-200624 was published by Safe Work Australia in June 2009. Australia has one of the worst incidences of asbestos-related disease due to the widespread and uncontrolled use of asbestos which took place post-World War II:
Exposures to asbestos in the past were very high in some industries and occupations: as much as 25 million particles per cubic foot (150 fibres/ml) in asbestos pulverisers and disintegrators in the asbestos cement industry, and up to 6000 fibres/ml among baggers at Wittenoom.
Epidemiologists predict that the Australian incidence of mesothelioma could peak some time between 2010 and 2021: The overall number of deaths resulting from mesothelioma generally increased over the period between 1997 and 2006: reaching a maximum of 545 in 2004.
The current issue of the International Journal of Occupational and Environmental Health contains two articles on asbestos issues. In Fiber Types, Asbestos Potency, and Environmental Causation author David Egilman attempts to peer review the use of certain scientific methods in tort litigation and in testimony before regulatory agencies. Section headings include:
The authors of Mesothelioma Risk and Environmental Exposure to Asbestos calculate that due to Japanese environmental asbestos exposures mesothelioma risks per year of exposure will reach peak levels in 2033 The number of deaths is estimated to range from 542-1276 in 2033. The cumulative number of deaths will reach around 17,000-37,000 in the years 1970-2070.26
An electronic copy of the report Risk Assessment of Asbestos-Contaminated Soils: An International Perspective by Benjamin Hardaker was received in June 2009. Hardakar used the funds obtained in 2008 as a Churchill Fellow to conduct a comparative study of state-of-the-art techniques used in the United States, the United Kingdom and the Netherlands to calculate risks posed by asbestos-contaminated soils in order to suggest ways to improve Australian protocols.27 In his 50-page report, Hardakar highlights the need for an asbestos-specific regulatory document to provide a standard assessment method with a defined end-point.
Breathtaking Journey: On June 20, 2009, three asbestos campaigners from Manchester set off from Glasgow on a 1,200 mile quest which will take them to major UK asbestos hotspots. The objective of the gruelling two week-event that will visit Edinburgh, Newcastle, Barrow, Liverpool, Leeds, Sheffield, Derby, Birmingham, London, Barking and Southampton is to raise public awareness of the fatal legacy asbestos use has left throughout the country. The progress of Jason Addy, Katrina London and Paul Glanville can be followed on the blog: http://breathtakingjourney.blogspot.com/
1 The three-hour seminar, held under the auspices of the Asbestos Sub-Committee of the All Party Parliamentary Group on Occupational Safety and Health, took place on the afternoon of May 13, 2009 in the Boothroyd Room, Portcullis House.
2 Kazan-Allen L. Asbestos Issues in Westminster. British Asbestos Newsletter. Issue 71, Summer 2008.
3 Rake C, Gilham C. et al. Occupational, domestic and environmental mesothelioma risks in the British population: a case-control study. British Journal of Cancer (2009) 100, 1175-1183.
4 Waldman L, Williams H. As Safe as Houses? Dealing with Asbestos in Social Housing. June 2009. A UCATT publication; see: www.ucatt.info/content/view/709/30/
5 Carlisle Housing Chief Must Be Sacked for Asbestos Cover-Up. October 13, 2009.
6 In the beginning of May 2009, a fine of £12,500 was handed down as a result of a prosecution brought by the EA over an attempt to dispose of asbestos-bonded cement which involved a dump truck breaking up pieces of this hazardous material.
9 Kazan-Allen L. Asbestos Campaigners Meet British Prime Minister. May 6, 2009.
10 This took place in mid-June 2009 in Blackpool.
11 See: EDMs 1181, 1204 and 1590.
12 Green W. Scottish pleural plaques victims compensated. Evening Chronicle. June 18, 2009.
14 Banks R. Talk of recession cannot drown out the silent killer. March 11, 2009. Insurance Day.
15 RSA: Royal Sun Alliance; in 2008, this insurance company made pre-tax profits of £759 million. It is one of 4 insurance giants that are launching a legal battle over the Scottish Parliament's reinstatement of rights for pleural plaques victims.
16 Terminal cancer sufferer wins £205,000 in asbestos claim. June 22, 2009.
17 Asbestos cancer pensioner wins compensation battle. March 7, 2009.
18 According to the website of the International Financial Services London report (www.ifsl.org), in 2007 net worldwide premium income of the UK insurance market reached £262.6bn An expert consulted said that he felt it was unlikely that the figures for 2008 and 2009 would differ markedly from those of 2007.
19 Marion Bernadette Hutchings v Inviscta Holdings Limited, No. 8LV14598, Liverpool County Court. Mr. Hutchings, a former pipe fitter, died of mesothelioma on July 14, 2005; his daughter and her family live abroad. The travel claim was made under The Law Reform (Miscellaneous Provisions) Act 1934.
20 Field Fisher Waterhouse. Asbestos News. February 2009.
21 Sommerlad N. Asbestos victims demand payback from insurance industry. Daily Mirror. June 10, 2009.
22 Cree M.W, Lalji M, Jiang B, Carriere K.C. Under-Reporting of Compensable Mesothelioma in Alberta. Am. J. Ind. Med. 2009;52:526-533. http://www3.interscience.wiley.com/journal/122414263/abstract?CRETRY=1&SRETRY=0
23 Welch L, Haile E. Asbestos-Related Disease Among Sheet Metal Workers 1986 2004: Radiographic Changes Over Time. Am. J. Ind. Med. 2009;52:519-525.
Compiled by Laurie Kazan-Allen