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|ISSN 1470-8108||Issue 80||Autumn 2010|
There is no way the British mesothelioma epidemic will recede any time soon. Data released by the Health and Safety Executive (HSE) on October 27, 2010, confirmed a seemingly inexorable rise in the national incidence of mesothelioma deaths. Between 1990 and 2008, the number of fatalities increased from 895 to 2,249. Over the last ten years there has been a 46% increase in mesothelioma deaths (from 1,541 in 1998 to 2,249 in 2008).1 Dr. Jukka Takala, Director of the European Agency for Safety and Health at Work, was shocked by the HSE data:
As bad as these figures are, the bigger picture is even worse. If there were 2,249 mesothelioma deaths in 2008, there were at least an equal number or more British fatalities from asbestos-related lung cancer. Combining deaths from both cancers could produce a death toll exceeding 5,000 per year. The fact that these numbers are increasing is disturbing. The fact that asbestos use is growing in some developing countries is indefensible. Also, the behavior and practices of some countries, developed, in transition, and developing, in promoting the production and use of chrysotile asbestos is unethical.2
A graph showing cumulative mesothelioma death rates in 20+ countries, compiled by Andy Darnton for a presentation entitled: Consequences of asbestos use in Great Britain, puts the national epidemic into a global context: when it comes to male deaths from mesothelioma, Britain leads the world.3 The reasons for Britain's tragic preeminence are rooted in our industrial, economic and political history. The current mesothelioma epidemic is far from 'incomprehensible,' writes Dr. Geoffrey Tweedale; it was the inevitable outcome of actions and policies that were forged in localities such as Rochdale, where powerful industrial interests, local officials, and politicians proved so expert at defending asbestos and slowing regulations. 4
As the incidence of mesothelioma has risen in Britain, so has the determination of insurers to avoid asbestos-related liabilities. As one expert put it: Insurance companies sold policies to cover risk. Now that risk has become reality they have resorted to picking apart the words in their own policies.5 These comments were made in the aftermath of a Court of Appeal ruling issued on October 8, 2010. The 166-page judgment handed down by Lord Justice Rix, Lady Justice Smith and Lord Justice Stanley Burnton considered six cases pertaining to the issue of when and how liability for mesothelioma is triggered under employers' liability (EL) insurance policies.6
Anything less than an in-depth reading of this complex and arcane judgment is fruitless. As legal expert Ian McFall from Thompsons' Solicitors explained:
Summarising the decision is problematic. Rix LJ, Smith LJ and Burnton LJ each reached different conclusions on some issues on different grounds and arrived at similar conclusions on other issues by different routes for different reasons. The critical issue in this case is one of interpretation of EL insurance policies as they pertain to liability for mesothelioma. It is about what has to happen in any given policy year to make the insurer on risk liable to indemnify the employer.
The 'sustained' policy wording was taken by the Court to mean the tumour must develop during the insurance policy year in question, with the result that insurers on cover at the time of the exposure were not required to pay. But the 'disease contracted' wording was interpreted as looking back to when the disease was caused, so that the insurers on cover at the time of the asbestos exposure were required to pay. It makes no sense to interpret these wordings differently. It leaves a fundamental gap in the protection that employer's liability insurance was intended to provide. The muddle created by the Court of Appeal will now have to be resolved by the Supreme Court.
Some commentators bemoaned the lack of clarity which persisted in the wake of the judgment noting that the decision has almost as many permutations as there were parties to the case.7 Other pundits pointed out the unanimous dismay by all those involved in the litigation, citing comments such as hugely disappointing and very confusing.8 The reactions of asbestos victims, campaigning groups and trade unionists transcended academic interest in the legal technicalities and finer points of contract law. Ruth Durham, whose father died of mesothelioma (2003) and whose personal injury action was lead case 1 in this litigation, expressed the feelings of many when she said:
Though I am relieved to hear of today's court decision which will see justice done for my father and some other mesothelioma sufferers, I think it is very sad that there is now a divide, with some victims and their families being compensated, and some not.9
Highlighting the disastrous consequences of this ruling, the Asbestos Victims Support Groups' Forum predicted that thousands of mesothelioma sufferers may lose their right to compensation. These victims have, the Forum wrote been caught in the crossfire of a war between insurers, where the protagonists have no regard whatsoever to the collateral damage to asbestos victims.10 Derek Simpson, Joint General Secretary of Unite whose member Charles O'Farrell's mesothelioma death was the basis for lead case 3, was outraged:
This is the ultimate insult for people suffering, or who have watched a loved one suffer a painful and degrading death from industrial disease. Insurers banking premiums and then escaping paying out compensation by relying on policy small print is obscene.11
Perhaps fearful of the bad publicity which would almost certainly be generated by the sight of fat cat insurers stiffing dying victims, the same day the Court of Appeal ruling was handed down, Equitas, the insurance vehicle set up to administer long-tail asbestos and other liabilities held by Lloyd's of London syndicates, announced it would make (ex-gratia) payments to mesothelioma victims in situations where they would have been compensated by a Lloyd's policy but the company no longer exists or cannot be traced.12
The Appeal Court gave permission for all losing parties to appeal to the Supreme Court. The deadlines for filing notices of appeal and agreed statements of issues were November 19, 2010 and January 28, 2011 respectively. However, due to the complexity of the appeals, the number of parties involved and the wider public interest, changes were made in the procedural timetable. It is not known whether a draft Order submitted to the Court of Appeal in mid October has been approved. Although there was some indication that the Supreme Court hearing of this case might be expedited, it is expected to be at least a year before the appeals are heard. Judging by the time it has taken for the Court of Appeal judgment to be issued, it could take a further year of deliberations before the Supreme Court findings are made public. Until then, it is likely that cases affected by the EL Policy Trigger Litigation will be stayed.
There is no doubt that the outcome of this case will have serious implications not only for mesothelioma sufferers but for other victims of employer negligence. Irwin Mitchell solicitor and asbestos specialist Helen Ashton, who represented Ruth Durham in lead case 1, commented:
The different findings of the three judges has created confusion when those involved in this litigation were searching for clarity. For many mesothelioma victims, this judgment will mean at least another year of waiting. As the life expectancy of mesothelioma victims is most often measured in months, it is more likely than not that the majority of those now suffering will not live long enough to know if their families will receive the compensation that is their due.
The unsatisfactory outcome of the Court of Appeal ruling could have implications for businesses and local councils which may find that there is a black hole in their insurance cover. And, last but not least, the impact on Government reserves could be considerable when those individuals stonewalled under the terms of certain insurance policies apply for one-off lump sum payments under The Child Maintenance and Other Payments Bill 2008 for mesothelioma sufferers ineligible for compensation from other sources.13
On November 1, 2010, the Unite trade union announced its intention to challenge this ruling at the Supreme Court. Tony Woodley, Joint General Secretary of Unite, explained the union's decision as follows:
The way the insurers refused to pay out in these cases is a kick in the guts to every family that's watched a loved one suffer... Insurers sold their policies knowing that employers and workers' families would rely on them. Now they're trying to weasel out of paying based on fancy legal argument and policy small print. Unite will put its full weight behind the appeal. We will pursue it because we want to see justice done to innocent victims and their families.14
by Rohan Price15
A case before the European Court of Human Rights has raised the prospect that the British government could be found liable for not giving adequate warnings so as to prevent its employees from inhaling asbestos dust and that this failure infringed their right to life under European law.
The European Court of Human Rights has recently sought submissions from parties to an action as to whether the Royal Navy's exposure of the applicant's husband to asbestos constitutes a violation of the duty of a state to safeguard its citizens' right to life under Art 2 of the European Convention on Human Rights (ECHR). In Macritchie v United Kingdom16 Macritchie's disp0de facto husband of 47 years served in the Royal Navy at Portsmouth for 22 years between 1953 and 1976. He was exposed to asbestos dust when re-fitting ships. He died of malignant mesothelioma on 21 September 2006disp0. It is not clear on the facts of Macritchie exactly how the applicant's husband came into contact with asbestos, however, other cases tell us that ship re-fitting commonly involved installation and removal of asbestos insulation,17 use of a mobile asbestos sprayer18 or the use of a welding scorch pad made of asbestos.19
Macritchie firstly sought compensation from the British government for the tortious exposure of her husband to asbestos but was advised by her solicitors in a letter that the government had immunity from asbestos claims of servicemen prior to 1987, that this was for reasons of public policy and there is little you or I can do to change the situation.20 Nevertheless, Macritchie has pressed on with her claim in the ECHR. Her application raised the_GoBack_GoBack question of whether the facts of the case disclose a failure by the authorities to protect the applicant's (husband's) right to life, ensured by Article 2 of the Convention? What the British government knew about asbestos and what protective steps it took can be represented in a chronology of events:
Could it be that the British government failed to protect Macritchie's husband given the state of knowledge it possessed at various points in the 20th century? Janis et al note that, as no state can prevent every death including violent ones or even intentional killing, the issue is: what kind of legal system in both design and operation is enough to satisfy the state's duty.21 This is a point which the Court in Macritchie could consider, namely, did the United Kingdom's laws, regulations and warnings about asbestos contain rules of conduct sufficient to protect the right to life of workers such as Macritchie's husband? Many sufferers of asbestos-related illness will be interested to know the answer but will have to wait to see if parties return to the court for submissions and whether the matter proceeds to judgment.
The trusts set up as part of the administration process of the T&N Group in 2006 issued their third annual report in August 2010, detailing operational, financial and legal matters which have been of relevance to the Trusts throughout the period.22 In the four years the trusts have been operational, 1,249 claims have been received. Payments have been made in 948 cases at a cost of £21.8m.23 Positive developments during 2009, not least of which was the successful resolution of the tax status of the Trusts, enabled the Trustees to approve an uplift in payments as of October 12, 2010, as shown in the table below.
Previous and New Levels of Trust Dividends (pence/pound)
During 2009-2010, 115 claims were received from former T&N workers who had been employed at the Hindustan Ferodo factory in Bombay (Mumbai)24 and had contracted asbestosis.25 On October 5, 2010, Anne O'Keefe, a chartered accountant involved with the trusts, confirmed that 97 claims had been approved and that payments of these claims would begin the following week. The values of the claims, which are defined within the Trust Distribution Procedures, range from £1,500 to £11,000 with the higher amounts going to the most injured claimants. It is believed that the total of the Indian claims currently being paid out is £420,000+. It is anticipated that a further 50+ claims from the same workforce are currently working their way through the system.
Confirming that the money had been paid out toward the end of October 2010, Ravindra Ganpat Mohite, a trade union leader from Hindustan Ferodo and an asbestosis sufferer himself, said:
The receipt of this money marks an important step in workers' rights in India. To our knowledge, this is the first time that Indian workers have obtained compensation for occupational disease sustained at the hands of a foreign employer. Negotiating the bureaucratic process, identifying injured workers, accumulating evidence of employment and obtaining medical diagnoses has been a massive logistical effort. I would like to pay tribute to all those involved in this process including health and safety campaigners in India and the UK, trade unionists, doctors and legal professionals. The receipt of this compensation is an acknowledgment of the wrong which has been done to the workforce and as such is a warning to current employers that they will be held to account for the harm they do to their employees.
Over recent years, Christopher Booker has written more than 40 newspaper articles downplaying the health risks of white asbestos. His most recent airing on the subject appeared in the pages of the Daily Mail on February 23, 2010 in an article entitled: The Great Asbestos Hysteria. If the title itself is not incendiary enough, statements from the article are suggestive of Booker's entrenched position:
Inaccuracies and misrepresentations in Booker's text led to outrage amongst groups working to highlight the threat posed by deteriorating asbestos products contained within schools. Adding insult to injury, were comments Booker made in the February 23rd article about the mesothelioma death of Mrs. Gina Lees, the schoolteacher wife of Asbestos in Schools campaigner Michael Lees. It came as no surprise then that Mr. Lees lodged a complaint with the Press Complains Commission (PCC) about the Booker article. Negotiations between the Daily Mail, the PCC and Mr. Lees were protracted; considering that most PCC complaints are resolved in around 35 working days,27 the fact that this case took 7 months to resolve is confirmation of the Daily Mail's disinclination to correct its errors. Writing in The Guardian about the PCC's investigation into this complaint, Richard Wilson said that the feeble press watchdog has no bark and no bite the Daily Mail seems to have been able to drag the process out with impunity.28
In the end, the PCC summed up the resolution of this complaint as follows:
In general, the complainant (Michael Lees) considered that the article had been dangerously misleading. The complainant also strongly objected to a reference to the death of his late wife... The complaint was resolved when the newspaper wrote a private apology to the complainant acknowledging their error and insensitivity in the reference to his wife's death. They also published the following correction, in the newspaper and in its online edition:
' we said that according to the Health and Safety Executive, the risks from white asbestos products are 'insignificant', and 'arguably zero' in the case of lung cancer.
The HSE assessments related to specific levels of exposure to white asbestos fibres, not white asbestos products, and found a risk from higher levels.
The article said that asbestos in UK schools is almost all white. According to the HSE, the more harmful brown asbestos was also frequently used in schools '29
Clearly relieved at the outcome of this time-consuming and emotionally-draining process, Michael Lees responded to the PCC announcement as follows:
The statement from the PCC is most welcomed as it not only underlines the dangerously misleading nature of Christopher Booker's article, it also confirms that it was sloppy, distasteful journalism. It can never be quantified how many people have failed to take the necessary precautions because they have listened to Mr. Booker, however over the years his continual denials of the dangers of asbestos have, in my opinion, inevitably led to bad practice and the asbestos exposure of many people.30
In a press release issued by the Association of British Insurers (ABI) in February 2010, the organization stated that: Insurers also support the Government's aim to provide more research into asbestos-related diseases, and will be contributing £3 million to help them to fund that research.31 This money is being donated by the following insurers: Aviva, Axa, Zurich and the RSA, which are believed to be the UK insurance companies with the highest levels of asbestos-related liabilities. In negotiations with the Ministry of Justice, the Department of Health and the ABI, it was decided that the appropriate body to administer the funds for asbestos-related disease research was the British Lung Foundation (BLF). However, the details of these negotiations remain elusive as does any contract or terms of reference agreed upon.32
A consultation exercise was conducted this Summer by the National Cancer Research Institute (NCRI), under the auspices of Dr. Richard Stephens, on how this money should be dispensed.33 In their submission to the NCRI, the Asbestos Victims Support Groups' Forum UK signaled its support of key research initiatives such as: the establishment of a bio-bank, a phase III trial on the efficacy of prophylactic radiotherapy for some mesothelioma patients, developing a grant application to the National Institute for Health Research, the establishment of a National Centre for Asbestos-Related Disease and research into palliative care for mesothelioma sufferers. The Forum submission said:
We are very concerned that some funding has been proposed in discussions held by the British Lung Foundation for raising awareness of mesothelioma and the hazards of asbestos. While awareness-raising is very important, and currently supported through the HSE 'Silent Killer' campaign, we do not think this is an appropriate use of the ABI sourced funding, which we understand is for asbestos disease research.
Given the limited amount of money available for asbestos disease research, and the uncertainty about future funding, we would like to see the £3 million, phased over three years devoted solely to mesothelioma research.34
In the information vacuum which persists, questions are being asked about specific funding allocations.35 It is widely believed that a sum of £100,000-£150,000 per year has been allocated for use by the BLF to cover administration and other costs.36 Concern has been raised that over the next three years, the amount retained by the BLF could equate to up to 15% of the total research fund pledged by the ABI for asbestos-related disease research. That this apportionment of the funds is correct was confirmed by an email received on November 5, 2010 from Katherine Huntly, the BLF Press and Campaigns Manager, who wrote: It is planned to spend 85% of this money on scientific research into mesothelioma and asbestos related diseases.37 On November 23, 2010, a one-day workshop entitled: Where Next in Asbestos Research is being held in London by the BLF and supporting organizations. It is possible that these and other questions will be answered at that time. Unfortunately, applications to attend made by the British Asbestos Newsletter and the Asbestos Victims Support Groups' Forum UK have been turned down.
Asbestos Campaign in Northern Ireland
An asbestos campaign by the Health and Safety Executive for Northern Ireland (HSENI) was launched at the end of October 2010 to coincide with European Safety Week which this year took as its theme the promotion of safe maintenance of workplace premises. The pervasive presence of asbestos in Northern Ireland makes the management of asbestos in factories, warehouses, shops and offices a priority issue there. Asbestos remains, says Peter McKie, the Chairman of HSENI the most serious occupational health issue in Northern Ireland and the rest of the UK due to its widespread use.38
Supreme Court Proceedings
On October 26-28, 2010, seven judges sitting in the Supreme Court heard appeals against 2009 rulings by the Court of Appeal in the cases of: Willmore v Knowsley Metropolitan Borough Council and Sienkiewicz and Grief (UK) Ltd. Both cases revolve around the issue of low level asbestos exposures as experienced by Dianne Willmore at Page Moss Comprehensive School (later renamed Bowring Comprehensive) from 1972 to 1979 and Enid Costello at an asbestos-contaminated factory between 1964 and 1988.39
An Asbestos in Schools Newsletter containing an update on the campaign to make schools safe from the dangers of asbestos was issued on October 30, 2010. Subjects covered included: the Supreme Court hearings in the Willmore case, a synopsis of a recent meeting with Lord Hill, Parliamentary Under-Secretary of State for Schools, and the failure of a local authority to comply with asbestos guidance, despite being given the all-clear by the HSE.40
Malignant Mesothelioma Among Employees of a Connecticut Factory that Manufactured Friction Materials Using Chrysotile Asbestos was published in June 2010 in the Annals of Occupational Hygiene.41 This paper concluded that:
The oft-repeated statement that there were no cases of mesothelioma from the Connecticut friction materials plant studied by McDonald et al. (1984) is not correct. We have described five cases of mesothelioma from the files of a Connecticut law firm and mentioned two cases previously identified by Teta et al (1983)
These observations have implications for the risk assessment of chrysotile asbestos. They also have political implications for the Government of Canada which has been called upon to ban the export of chrysotile.
Asbestosis and mesothelioma among British asbestos workers (1971-2005),42 published in the American Journal of Industrial Medicine in June 2010, found that:
The asbestos workers experienced high mortality from all causes, asbestosis, and mesothelioma only one quarter of the asbestos deaths and two-thirds of mesothelioma deaths were identified through the underlying cause of death recorded on death certificates.
Straws in the wind: the local and regional roots of an occupational disease epidemic by Geoffrey Tweedale appears in the current issue of the Manchester Region History Review.43 This paper examines the interplay between local and national forces, vested interests and pressure groups which delayed British action on asbestos and resulted in the epidemic of asbestos-related disease now occurring. The role played by MP Cyril Smith in asbestos lobbying efforts in Westminster and Brussels is examined. On October 22, 1981, Smith told Parliament that asbestos was irreplaceable: Let no one underestimate its importance, or fail to understand that properly used, asbestos protects and saves lives. Till his dying day, Smith denied the harm done in Rochdale by TBA's asbestos manufacturing.44
The upholsterer and the asbestos45 discusses the occurrence of malignant mesothelioma in a person who worked for 28 years as a freelance upholsterer in Italy. During this time, it is believed he was hazardously exposed to recycled asbestos bags used either as covering for bundles of cloth waste and off-cuts or as component constituents of furniture upholstery. In Australia, the widespread use of recycled asbestos bags as carpet underlay was highlighted in the 2009 book by Matt Peacock: Killer Company. In the UK and Italy46 an elevated incidence of asbestos cancer has been found amongst people employed in sorting asbestos-contaminated rags and waste material. 47
2 Email from Jukka Takala received on November 1, 2010.
4 Tweedale G. Straws in the wind: the local and regional roots of an occupational disease epidemic. Business in the North West Manchester Region History Review. Volume 21, 2010.
5 Press Release. Unite The Union. Asbestos victims face compensation uncertainty. October 8, 2010.
6 The six actions were brought by: employees, still solvent employers (including local authorities) and insurers, four of whom favored the date of tumour position, and one, Zurich, which took the date of inhalation position. The test cases were: Durham v BAI (Run Off) Limited (In Scheme of Arrangement), Fleming & Eddleston v Independent Insurance Company Limited (in Provisional Liquidation), Edwards v Excess Insurance Company Limited, Thomas Bates & Son Limited v BAI (Run Off) Limited, Akzo Nobel UK Limited & Amec PLC v Excess Insurance Company Limited and Municipal Mutual Insurance Limited v Zurich Insurance Company and Others.
7 Bermingham H. EL Trigger Litigation: The complex outcome. October 8, 2010.
8 Claimant and defendant lawyers disappointed by asbestos ruling. October 8, 2010.
9 Irwin Mitchell Press Release. 'Pot Luck' Ruling for Asbestos Victims at Court of Appeal. October 8, 2010.
10 Press Release. Asbestos Victims Support Groups Forum. Devastating Court of Appeal Asbestos Judgment Trigger Case. October 8, 2010.
11 Press Release. Unite the Union. Asbestos victims face compensation uncertainty. October 8, 2010.
12 Equitas to offer ex-gratia mesothelioma payments. October 8, 2010.
13 Interview with Helen Ashton, November 2, 2010.
14 Press Release. Unite The Union. Unite to take asbestos victims' fight to Supreme Court. November 1, 2010.
15 Rohan Price is an Australian employment law academic who is best known for RBE Price, The Employment Laws of Hong Kong and China (2009) ISBN: 978 988 8016 81 5. He also writes prolifically in the area of legal liability for asbestos-related cancer. This research can be downloaded at no cost at http://ssrn.com/author=1557618; Rohan can be contacted on the following email address: Rohan.Price@utas.edu.au
16  ECHR 166 19298/08 (29 January 2010).
17 Watt v Fairfield Shipbuilding & Engineering Company Ltd & Ors  ScotCS 48, .
18 Patterson v Harland and Wolff Plc & Anor  NICA 46, .
19 Abraham v G. Ireson & Son (Properties) Ltd  EWHC 1958, -.
20 Section 1 of the Crown Proceedings (Armed Forces) Act 1987 (UK) states:
21 Letter from Mr. Michael Delevingne of the Home Office dated 15 September 1931 and accompanying draft regulations cited in Shell Tankers UK Ltd v Jeromson  EWCA Civ 101, .
22 The T&N UK Asbestos Trust and the T&N EL Trust. Annual Report 2009.
23 Information provided by email from Andrea Crichton, November 3, 2010.
24 According to industrial historian, Dr. Geoffrey Tweedale: In 1964, a (T&N) company reorganization brought Hindustan Ferodo into existence. The factory, which employed over 1,200 workers, was similar to T&N's plant in Rochdale, England, which also had a wide range of asbestos products. India's Asbestos Time Bomb. 2008. http://ibasecretariat.org/india_asb_time_bomb.pdf
25 These claims included two for secondary exposure and one for occupational lung cancer.
26 Booker C. The Great Asbestos Hysteria. Daily Mail, February 23, 2010.
28 Wilson R. Asbestos saga proves our feeble press watchdog has no bark and no bite. September 28, 2010.
29 PCC Online Report. Michael Lees v Daily Mail. October 28, 2010.
30 Email received on November 1, 2010 from Michael Lees.
32 Attempts to access documentation pertinent to this agreement have proved fruitless despite phone calls and/or emails to the Ministry of Justice (MoJ), the ABI and the BLF. A response received from the MoJ on November 4, 2010 said that it would be necessary to file a Freedom of Information application to access information about the arrangements agreed upon to administer the £3 million donation. An application (FOI/67856/10) has been submitted.
33 According to an email received on November 4, 2010 from Rachel Gonzaga, Science Press Manager of the NCRI, this report will be published later in the year.
34 Asbestos Victims Support Groups' Forum UK. NCRI consultation on allocation of research funding for asbestos-related diseases. 2010.
35 In an attempt to clarify the situation, two requests were made to speak to the BLF's Chief Executive Dame Helena Shovelton; she was unavailable.
36 BLF document. Asbestos Related Disease Research Funding - Grant Award Types.
37 Email received from Katherine Huntly. November 5, 2010.
38 Health and Safety Executive for Northern Ireland and District Councils Working to Maintain Safe Workplaces. October 22, 2010.
39 Kazan-Allen L. In Remembrance of Dianne Willmore. October 15, 2009.
43 Tweedale G. Straws in the wind: the local and regional roots of an occupational disease epidemic. Business in the North West Manchester Region History Review. Volume 21, 2010.
44Copies of this issue can be obtained from Craig Horner, Manchester Region History Review, Manchester Centre for Regional History, Manchester Metropolitan University, M15 6LL; firstname.lastname@example.org Price £12.95.
47 Merler E, Paulo Vibeis A, et al. Occupational Cancer in Italy. 1999.
Compiled by Laurie Kazan-Allen