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|ISSN 1470-8108||Issue 79||Summer 2010|
Britons now dying of asbestos-related disease were most probably exposed to Canadian asbestos.1 Figures recently unearthed by the British Asbestos Newsletter show that in 1968 and 1971 Canada accounted for 61% and 68% of the asbestos imported into the country.2
Sources of UK Asbestos Imports
There is no doubt that imports from Canada have contributed to the massive loss of life which has taken place due to asbestos-related diseases.3 As recently as 1995, the UK imported 10,143 tonnes of asbestos,4 83% (8,430 tonnes) came from Canada.5 It is widely believed that throughout the 20th century, 6 million tonnes of asbestos were consumed in the UK, a country with no asbestos mines; judging by the figures cited above, it is not unreasonable to suggest that the majority of the asbestos imported originated in Canada.
With support from the federal and Quebec governments, the Canadian asbestos lobby has been extremely successful at generating sales of chrysotile asbestos, so much so that Canadian exports still constitute the majority of asbestos imported by some developing countries. Data obtained recently by Canadian MP Pat Martin through a Parliamentary request revealed that in 2008, shipments of Canadian asbestos accounted for: 98% of the asbestos used in Bangladesh, 52% in Pakistan, 93% in the Philippines and 100% in Senegal. Large tonnages of Canadian asbestos are also being shipped to India, Indonesia, Thailand, Mexico, Sri Lanka, the United Arab Emirates, Colombia, Vietnam and Iran.
The dire consequences of exposure to asbestos have been borne out by the incidence of asbestos-related deaths in Britain. Much of the asbestos shipped to the UK came through the docks in Liverpool. In 1997, according to the United States Geological Survey, 4,320 tonnes of asbestos were imported by the UK. Information from the Mersey Port Health Authority states that in that year 2390 metric tons of white asbestos, Chrysotile, were imported from Canada through the Port of Liverpool. In other words, in 1997 at least 55% of all the UK's asbestos imports came from Canada and went through the Liverpool docks.6 It is little wonder then that the North West of England has the country's 3rd highest standardized male death rate for mesothelioma, an aggressive cancer caused by exposure to asbestos.7
The impact of occupational exposures experienced by dock workers combined with that which took place in heavy industry and construction on Merseyside is reflected in the caseload of the Merseyside Asbestos Victims Support Group (MAVSG) which has, since 1992, assisted thousands of people exposed to asbestos occupationally, domestically or environmentally. Incensed by Canada's continuing disregard for the sanctity of human life earlier this year MAVSG sent a letter to the Canadian Minister for Health Ms. Leona Aglukkaq in which she was criticized as the only Health Minister in the western world supporting continued use of asbestos. A response from Canada's Minister of Foreign Affairs received on May 7 was labelled as disingenuous by a MAVSG spokesperson who said:
Just as a drug pusher is responsible for the fatal overdose of a heroin addict, so the Canadian and Quebec Governments are responsible for thousands of asbestos deaths in the UK and around the world.8
Representatives from MAVSG joined asbestos victims, trade unionists, members of NGOs and ban asbestos campaigners in a demonstration held outside the Canadian High Commission on July 1, 2010 Canada Day. The protest was organized jointly by the International Ban Asbestos Secretariat and UK trade unions such as the GMB, the NUT, UCATT, Unite and ATL and was supported by a coalition of civil society groups such as the Forum of Asbestos Victims' Support Groups and the London Hazards Centre.9 With placards and banners in English and French, the protestors spelled out their messages in slogans such as:
Demonstrators from Liverpool, well-known for their inimitable sense of humour, displayed a subtle touch with their placard: Canadian Asbestos Safe? My Arse. This protest took place against a surge of opposition at home and abroad against a proposal for the Quebec government to loan $58 million to fund development work at the Jeffrey Mine's new underground asbestos operations. Jeffrey Mine's President Bernard Coulombe blames Michael Ignatieff, leader of Canada's opposition, for stalling the reopening of the mine. As Coulombe was finalizing the details for a $40 million investment by a Chinese company last summer, Ignatieff called for a ban on asbestos exports. Coulombe reported that: A week after Mr. Ignatieff's comments, they (the Chinese investors) started questioning me, saying 'What happens if we decide to invest in you and Mr. Ignatieff becomes prime minister and decides to stop production of chrysotile asbestos?' Although the Quebec Government has not yet announced its decision, revised estimates suggest that the project would cost 25% more to complete than anticipated. The additional $15 million would have to be found by the mine owners, no mean feat given current economic conditions and political controversy over the planned mine expansion.10
Even as plans for the Jeffrey Mine remained in limbo, a widely reported investigation into the global asbestos industry reaffirmed the deadly role played by Canada,11 the Environment Health Perspectives Journal published damning indictments of the industry and the World Health Organization (WHO) upgraded its estimate of the asbestos hazard. A new WHO asbestos fact sheet stated:
The serendipity of these occurrences coinciding as the asbestos loan remains pending cannot be good news for the industry. Equally as worrying is the news of heightened interest in asbestos bans from Latin America; banning the use of asbestos was on the agenda of high-level meetings taking place this summer in Mexico,13 and Brazil. In Asia, support for multilateral action on asbestos was expressed by speakers at an Asbestos Forum held on JeJu Island, Korea on July 15, 2010. On July 26, the Department of Environmental Sanitation and Toxic Substance Management of the Environmental Protection Administration announced that over the next ten years a comprehensive ban on asbestos would be implemented in Taiwan.14 A few days later, trade unionists, environmentalists, and NGO representatives came together at a 3-day asbestos conference in Indonesia. During workshops and discussion sessions updates on asbestos research projects were given and future plans were made for coordinated regional initiatives. The momentum supporting a multilateral ban on asbestos generated by these developments will be maintained by events planned for the autumn including a two-day asbestos meeting in Moscow, organized by a European NGO, an asbestos workshop in Indonesia and the publication by ban asbestos campaigners of literature in major asbestos-using and producing countries.
The BBC has been at the forefront of efforts to expose the global machinations of asbestos industry lobbyists.15 Working with the International Consortium of Investigative Journalists, BBC correspondents have spent the last year investigating the operations of commercial and government stakeholders in Canada, Brazil, Russia, China, Mexico and India. The results of their research were contained in an astonishing series of newspaper and website articles,16 podcasts,17 documentaries,18 radio programs, commentaries and blogs which were rolled out in July 2010 under the banner: Dangers in the Dust - Inside the Global Asbestos Trade.19 Having interviewed scores of asbestos victims, ban asbestos campaigners, industry representatives, scientists and medical experts, examined numerous archives and studied contemporary documentation, the researchers compiled a snapshot of a ruthless industry dedicated solely to the pursuit of profits. The investigation revealed a multi-million dollar conspiracy designed to encourage sales of a substance known to cause cancer in humans. The key findings of this project were:
A 30-minute video broadcast on the BBC News Channel on July 24 illustrated the project's breadth with footage from Brazil, Canada, the UK, the U.S., India, South Africa, Italy and the Netherlands. Senior Labor Inspector Fernanda Giannasi, the leader of the virtual ban asbestos network in Latin America, was shown raiding a Sao Paulo workshop where prohibited asbestos-containing gaskets were found. Comparing the modus operandi of the Brazilian asbestos industry with that of tobacco multinationals, Ms. Giannasi explained how industry propagandists use various means to create doubt about the science and risks of using asbestos in order to increase sales. Commenting on the hazards of asbestos, Professor Alex Burdorf discussed an ongoing reassessment of chrysotile asbestos being conducted on behalf of the Dutch Government:
On lung cancer we have demonstrated that if you take into account the quality of the exposure assessment there is no evidence for a difference in risk on lung cancer between chrysotile and crocidolite both types of asbestos are as dangerous for lung cancer
In our analysis we propose to lower the existing guidelines for evaluation of environmental air pollution to asbestos by a factor of 10 that demonstrates that in our current analysis we think that chrysotile is much more dangerous than previously thought. I don't think there is a safe way of working with asbestos not in the Netherlands but also not in other countries and especially not in emerging countries where they are now using asbestos.
Concluding this broadcast, Dr Vincent Cogliano from the World Health Organization said:
My personal position is that the risks from asbestos are so high and so compelling and so well known that it is imperative that we reduce and eliminate exposure wherever that's possible. That includes bringing no more asbestos out of the earth into contact with humans; it means no more exporting it to developing countries where there are not good controls. It also means making sure that everyone is aware of the hazards of this fiber.20
A shorter film on the BBC website introduced concepts key to understanding the importance of asbestos to the Russian economy.21 The 10 kilometer-long open-cast mine in the town of Asbest, Russia is the biggest in the world. Currently operating at full capacity, the mine produces half a million tonnes of asbestos every year. The annual revenue generated by Russia's asbestos industry, which employs 500,000 people, is one billion dollars. The use of asbestos construction materials is widespread throughout the country. Workmen and scientists interviewed for this film alleged that the unfair and ill-founded criticism being leveled at asbestos is politically motivated.
Although some of the content of the Dangers in the Dust project goes over familiar ground, much of the footage, in particular from Russia and China, is new. What is particularly impressive is that this project makes full use of the myriad information portals available to disseminate this exposé of the asbestos industry. Coverage of this investigation has appeared in the U.S., the UK, Canada, Mexico, Brazil, India, France, Ireland, China, Spain, and Ethiopia. While some of the pieces have been on business ethics,22 environment,23 and health and safety blogs, scores of others have appeared in mainstream media outlets. The content, tone and number of these items led Canadian Journalist Andy Blatchford to describe the reporting as a public-relations tsunami for the asbestos industry.24 With headlines such as those listed below it is hard to disagree with his assessment: The Cartel of Asbestos; Poisonings Permitted; Lobbyists Promote Asbestos Use in the Developing World; and Investigations Slams Asbestos Use.
Just a fortnight before the pieces in this series were circulated, the July 2010 issue of the Environment Health Perspectives, the most widely read peer-reviewed journal on the impact of the environment on human health, ran three features on asbestos: A Worn-Out Welcome Renewed Call for a Global Asbestos Ban, A Repeat Call for the Banning of Asbestos and The Case for a Global Ban on Asbestos.25 The photograph on the cover of the periodical left readers in no doubt as to the contents of the asbestos stories. It showed two workers from Zhangye, China shoveling asbestos fibers into a hessian-type sack. There was no protective equipment, no breathing apparatus and no technology just two men, 1 shovel, 4 cotton gloves and 1 half-face mask. With conditions such as these, there is no doubt that the asbestos epidemic which is still causing thousands of UK deaths every year is even now incubating in populations throughout China, India, Russia and other asbestos-consuming countries.
by Patrick Walsh26
On July 26, 2010, the Government declared its intention to consult in the autumn on implementing Lord Justice Jackson's recommendations on the reform of funding arrangements in his report, 'Review of Civil Litigation Costs: Final Report,' published on 14 January 2010.27 At the same time, the Government announced it would ask the Court Rules Committee to implement those parts of the report that could be introduced without the need for Parliamentary legislation. Within Lord Justice Jackson's 557-page document, there are multiple recommendations which could adversely impact on the ability of asbestos victims in England and Wales to obtain full compensation for their injuries.
Jackson's proposals involve significant changes to the rules covering Conditional Fee Agreements, Conditional Fee Agreement insurance and what costs can be recovered from the losing opponent in a court case. Proposals which could be detrimental to asbestos claimants are:
In order to offset the effects of these proposals on claimants, Jackson suggests that:
These proposals, if implemented, may have adverse consequences for asbestos victims and victims' groups. The recovery of the After the Event insurance premium from the other side is an important right for asbestos claimants. Jackson's view is that Before the Event insurance should become much more widespread, and be used in place of After the Event insurance. Before the Event insurance is common with motor insurance policies and home contents policies. For an additional payment, a clause is included in the policy which enables the victim of an accident or someone with a legal problem to contact their insurers and get legal advice about how to recover compensation. In practice, household insurers sell the right to act for their policyholders to firms of solicitors on a fee per case basis. The fees can be anywhere between £250 and £1,000 per case depending on the nature of the case. It is big business for the insurance companies. Policyholders will be required, under the terms of the insurance policy, to instruct the solicitor nominated by their insurer. This reduces choice for the policyholder and particularly, if specialist advice is needed, may involve the policyholder going to a solicitor without the correct degree of expertise. This could particularly affect asbestos victims if they were forced to use solicitors without experience or knowledge of pursuing asbestos disease claims.
Presently, very few Before the Event insurance policies cover asbestos disease claims. The insurers see these claims as expensive to run. They fear that if the claim is lost the costs will be considerable; in addition, the risks of losing asbestos related lawsuits are much higher than straightforward accident cases. Disease claims are therefore normally excluded from Before the Event policies; this means that there is very little coverage in the market for asbestos victims. By contrast, there are a number of insurers who provide After the Event insurance cover for asbestos related disease cases. The cost of the policies can vary from around £1,500 to more than £5,000 depending on the level of insurance cover given and the precise terms of the policy. Usually the policy covers the claimant's own disbursements which include court fees, the cost of their own medical reports, the cost of engineers' reports and other experts' reports, as well as their opponents' costs. A common level of indemnity is £100,000. Most of these insurance policies are offered on a deferred premium basis. This means that the claimant does not have to find the cost of the insurance policy up-front as the insurer is prepared to wait until the end of the case. The cost of the premium is recovered from the other side along with other costs if the case is won. If the claim is lost, the insurance premium is either irrecoverable from the claimant or is insured so that in practice the claimant faces no bill or costs whatsoever in a failed case. The peace of mind given by these insurance policies is often an essential protection which persuades people to bring a claim for asbestos related disease. Naturally, many victims fear that if their case is lost, they may be faced with a substantial bill for their own experts' reports and the other side's costs. If they face a significant costs risk they will not go ahead with a claim. Jackson's proposal for abolishing the recoverability of this type of insurance cover from the other side will seriously undermine the confidence people have in pursuing claims and will almost certainly deter many people from bringing claims. Unless new insurance policies are introduced to cover the claimant's own disbursements and the risk of the other side persuading the judge to allow them to recover their costs from the claimant because of the claimant's conduct, victims will be fearful of pursuing claims. The unfairness in all of this for claimants is that even if they win their cases, the costs of the insurance cover would almost certainly have to be paid out of the compensation. Lord Justice Jackson sees no problem with this. As a consequence of these changes, it would be impossible for solicitors to reassure claimants that there would be no risk of them having to pay out of their own pocket the costs of their own expert evidence, court fees or the defendant's costs if no insurance policies are available to cover those costs.
The proposal that success fees, currently recoverable under Conditional Fee Agreements from defendants, should become deductible from claimant's damages (up to a total of 25% of the compensation) is a move away from the principles that the claimant should recover full compensation and that the polluter pays. The only beneficiary from such a move would be the insurance industry. The proposal for a 10% increase in general damages to offset this deduction in reality is of no real benefit. This is because for pain, suffering and loss of amenity, referred to by lawyers as General Damages, there is always a range of awards and a 10% increase would in fact fall within the usual range of awards. To put it another way, the claimant in practice would not receive any increase in real terms in damages, but have the risk of losing a significant proportion of the compensation in legal costs. It may well be the case that many solicitors will take the position that they do not intend to charge claimants success fees out of their compensation. The difficulty for solicitors in taking this approach may be that they cannot afford to do so, given the court's new rules on how much of the costs of the claim will actually have to be paid by the other side.
There is going to be no change in the rules of law or evidence to make cases easier to win, but if the court takes the view that a step was too expensive, even though it was absolutely necessary to pursue the claim, then the claimant's lawyer may not recover from the other side enough costs to cover the expense involved. This could lead to lawyers refusing to take on certain cases because they cannot run them on an economic basis. Alternatively, a significant proportion of the compensation could be eaten up to pay for the work which the other side did not have to pay for but which had to be carried out to pursue the claim.
The court proposes a fixed costs regime for all cases which are worth less than £25,000. The amount of costs which will be allowed at each stage of the case is not yet known but it will probably be modelled on the system which has recently been introduced in road traffic cases. One of the problems with asbestosis and pleural thickening cases is that there are often many defendants to pursue and many insurers to trace. If the costs of tracing all the insurers cannot be recovered from the other side, then it may make it uneconomic to pursue these cases through the courts. The victims' inability to bring legal actions for these conditions would deprive them of the compensation to which they are entitled as well as prevent them from securing provisional damages orders. Since the rules of law on limitation are not being changed, if somebody does not get a provisional damages order with, for example, low level asbestosis and later develops cancer, the insurers may be able to argue that because they did not bring a claim for compensation for their other disease within three years of diagnosis, they are now out of time to bring a claim for mesothelioma or lung cancer.
Finally, a further issue is the recoverability of referral fees. Jackson is opposed to fees being paid to claims farmers, who he sees as adding no value to the claim. Whilst Jackson may have a point in relation to claims farmers, it is not clear whether the proposed change of rules will also apply to victims' support groups or trade unions which currently receive referral fees or donations in respect of the referral of cases to solicitors. This could have significant implications for the financing of these groups both of which provide a vital service in assisting the injured to bring claims.
An extract from a review of the Jackson Report written by personal injury solicitor Carol Brooks-Johnson sums up the unease amongst claimants' representatives:
at this juncture, it would seem that the bad news outweighs the good these changes are supposed to increase access to justice and be beneficial to claimants. An analysis of the proposed changes makes it difficult to see how claimants are going to benefit and how access to justice is going to be increased Indeed, the major changes all seem to be damaging to claimants and will reduce access to justice.
One limb of Sir Rupert Jackson's remit cutting costs may be achieved but the other access to justice will not be facilitated at all.28
Enquiries made of statisticians working on mesothelioma research for the HSE revealed that:
Work is ongoing on female mesothelioma data with revised projections expected Autumn 2010.
Pleural Plaques Compensation
In a statement cited in Hansard on June 2, 2010 MP Jonathan Djanogly, the Parliamentary Under Secretary of State, confirmed that lump sum payments of £5,000 promised under the previous government for some pleural plaques claimants in England and Wales would be made.30 It is anticipated that the extra-statutory scheme being administered by the Ministry of Justice would begin accepting claims from the end of June 2010. 31
Action Mesothelioma Day 2010
This year the date of Action Mesothelioma Day was changed to take advantage of the summer weather. On July 2, asbestos victim support groups and mesothelioma charities throughout the country held conferences, rallies, dove releases, memorial services and other events to mark the importance of this day and to raise awareness of a disease which is killing in excess of 2,000 people every year.
Parliamentary Asbestos Sub-Group
Following the May 2010 election, the All Party Parliamentary Group on Occupational Safety and Health and the Parliamentary Asbestos Sub-Group were re-established with MP Jim Sheridan as Chair and Hugh Robertson of the TUC providing administrative support. It is anticipated that both Groups will meet before the end of the year.
Protection from Asbestos for Marine Sector
Having finished consultation on proposals to provide workers in the marine sector the same protection from asbestos as already afforded land-based workers, it was anticipated that the Maritime and Coastguard Agency (MCA) would, in pursuant of EC Directive 83/477/EEC (as amended), introduce minimum safety and health requirements for the protection of workers from the risks related to exposure to asbestos at work by the end of 2010 with the new requirements contained in the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations.32 This deadline might not be met according to an email received on August 4, 2010 from Michael Lines of the MCA: whilst we are currently working on the final version of the Asbestos Regulations, it is not yet possible to say when they will be made and come into force.
Mesothelioma: A Good Practice Guide
This A4-size booklet, published in May 2010, is a practical guide on available treatments and specialist care for mesothelioma sufferers. It provides examples of how to implement best practice in support of the National Mesothelioma Framework (2007) and the British Thoracic Society's Statement on malignant mesothelioma in the UK (2007). To obtain a copy, contact Mesothelioma UK; email: firstname.lastname@example.org
UK Asbestos Working Party Update 2009
The update of research previously carried out in 2004, reports that the cost of mesothelioma claims to UK insurers has risen substantially not only because of an increase in numbers but also because more people diagnosed with this fatal cancer are bringing personal injury compensation cases. Key points made in this report are:
1 In a 2010 publication entitled The Great Britain Asbestos Survey 1971-2005, it was observed that The highest risk of asbestosis was observed 50 or more years after first occupational exposure to asbestos, and for mesothelioma 40-59 years after first exposure. Therefore, exposures which took place in 1968 could have produced cases of mesothelioma in 2008. http://www.hse.gov.uk/research/rrpdf/rr805.pdf
2 The Monopolies Commission. Asbestos and certain Asbestos Products. 23 January 1971. Page 5, paragraph 15.
3 Projection of mesothelioma mortality in Great Britain. Prepared by Health and Safety Laboratory for the Health and Safety Executive 2009. http://www.hse.gov.uk/research/rrpdf/rr728.pdf
5 Asbestos Institute. Chrysotile Asbestos: An Overview. http://www.asbestos-institute.ca/presskit/press_2.html 25 September 2001.
6 It is not known where the remaining 1,930 tonnes came from or through which ports they were transited.
7 Health and Safety Executive. Table MESO05. http://www.hse.gov.uk/statistics/tables/meso05.htm
8 MAVSG Press Release. Canadian Minister's Asbestos Lie! May 14, 2010.
9 Kazan-Allen L. Canadian Asbestos Still a Global Concern. July 5, 2010.
10Mining company says asbestos ban talk scared investor. The Canadian Press. July 30, 2010.
11 Kazan-Allen L. Dangers in the Dust. British Asbestos Newsletter, Issue 79. 2010.
12 World Health Organization Fact Sheet N343. Asbestos: elimination of asbestos-related diseases. July 2010. http://www.who.int/mediacentre/factsheets/fs343/en/index.html
14 Asbestos to be banned in 10 years. July 26, 2010.
15 Inside the Global Asbestos Trade. BBC. July 21, 2010.
17 Video: Exporting an Epidemic: The Asbestos Industry Goes Global.
18 One Planet Asbestos. BBC World Service. July 22, 2010.
21 For more on the situation in Russia, see: The World's Asbestos Behemoth Vast Amounts Shipped Overseas, Used at Home, by Roman Shleynov. July 20, 2010
22 Chavkin S. Lobbyists Promote Asbestos Use in the Developing World. Business Ethics Magazine. ProPublica July 21, 2010.
23 Asbestos: Danger in the Dust. The Environment Report. July 22, 2010. http://www.environmentreport.org/article.php?article=66
24 Blatchford A. Major BBC investigation batters Canada's controversial asbestos industry. The Star. July 21, 2010.
27 Written answers and statements, Jonathan Djanogly, Parliamentary Under Secretary of State (HM Courts Service and Legal Aid), 26 July, 2010. http://www.theyworkforyou.com/wms/?id=2010-07-26b.68WS.6
29 Emails received on July 29 and August 4, 2010 from Dr. Emma Tan. Regarding the future incidence of male mesothelioma deaths, it was noted that the projections were based on a modified version of the statistical model published in 2005. This model provides a reasonable basis for making relatively short-term projections of mesothelioma mortality in Britain, including the extent and timing of the peak number of deaths.
Compiled by Laurie Kazan-Allen