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| ISSN 1470-8108 | Issue 87 | Summer 2012 |
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Contents:
1. Annual Parliamentary Asbestos Seminar 1. Annual Parliamentary Asbestos Seminar The annual asbestos seminar has been a fixture on the parliamentary calendar for more than a decade. This year's event took place on June 27, 2012 in Committee Room 11 of the House of Commons. The session, held under the auspices of the Asbestos Sub-Group of the All Party Parliamentary Occupational Safety and Health Group, attracted a large number of asbestos victim support group representatives, campaigners, trade unionists, medical and legal professionals and researchers as well as Members of Parliament including: Gemma Doyle (West Dunbartonshire), Derek Twigg (Halton, Cheshire), Simon Danczuk (Rochdale, Littleborough and Milnrow, Lancashire), John Cryer (Leyton and Wanstead, London) and Ian Lavery (Wansbeck, Northumberland). The objective of the annual seminar is to not only keep asbestos high on the UK political agenda but also to provide the opportunity for interested parties to hear news about current developments abroad. Reflecting the balanced approach traditionally adopted, this year's agenda included three presentations about UK asbestos issues and three on global subjects. After having been buffeted by the ill winds of legislative and judicial reverses in recent years, some good news was to be found in the presentations by Barrister David Allan and Chair of the Asbestos Victims' Support Groups Forum (the Forum) Tony Whitston regarding court and parliamentary victories in 2012 on behalf of asbestos victims. Naturally enough, the starting point for Allan's talk entitled UK Legal Developments 2012 was the Supreme Court's verdict of March 28, 2012 in, what has become known as, the “Trigger Case.”1 The decision brought clarity for claimants and the legal professionals who represent them and upheld the principle that the date of negligent exposure to asbestos sustained by a plaintiff was the point at which Employers' Liability coverage was triggered. One month after that ruling, the Court of Appeal upheld a 2011 High Court decision which found that Cape plc, the parent company of Cape Building Products, was liable for the breaches of duty committed by its subsidiary. The appeal lodged by Cape, which maintained that as the companies were separate legal entities one was not accountable for the actions of the other, did not find merit with the three appeal court judges. The other case, Dennis Ball v. the Secretary of State for Energy, referenced during this presentation resulted in the dismissal of the defendant's attempt to lower the level of damages awarded for pain, suffering and loss of amenity due to a claimant's advanced age. Achieving a successful legal outcome for sufferers with asbestos-induced lung cancer remained problematic, the barrister said. Tony Whitston began the Update from Asbestos Victims' Support Groups by congratulating members of the UK asbestos victims' community whose work had been recognized in recent months: MBEs awarded to Chris Knighton of the Mick Knighton Mesothelioma Research Fund and Phyllis Craig from Clydeside Action on Asbestos and a Queen's Award for Voluntary Services to the Clydebank Asbestos Group. Whitston detailed cases which highlighted gaps and conflicts inherent in the current government compensation scheme whereby the receipt of one benefit can often impact negatively on a claimant's overall financial position. The fact that mesothelioma victims were exempted at the last minute from the worst effects of The Legal Aid, Sentencing and Punishment of Offenders Bill (LAPSO), he explained, constituted a partial victory, but as this decision is to be reviewed, they could still be subjected to the draconian new regime. Despite the good news, the LAPSO Act will compromise the existence of small charities representing asbestos victims which could from April 2013 be barred from receiving donations from solicitors representing asbestos victims. The work accomplished by the victims' groups is vital; they not only provide practical support for the injured, assisting them to navigate complex medical and government bureaucracies, but also campaign for improvements in medical treatment, increased funding for research and the adoption of programs to raise awareness of the asbestos hazard. Commenting on the financial windfall insurers have enjoyed due to lost Employers' Liability policies, the speaker supported calls for the establishment of a fund of last resort, similar to that of the Motor Insurers' Bureau, so that people with asbestos-related diseases might be compensated even if former employers had disappeared and no Employers' Liability records could be found. One month after the seminar, the government announced a new £300 million mesothelioma support scheme for people unable to trace insurers of defunct companies. Those eligible include anyone diagnosed with mesothelioma as of July 25, 2012; the insurance industry-funded tariff scheme will become operational in 2014.2 There was a mixed response to this news from victims' groups. A press release issued by the Forum entitled “New Scheme for Untraced Insurance but 50% Asbestos Victims Excluded,” underlined the fact that large numbers of victims were barred from claiming, including those with asbestosis, pleural thickening and asbestos-related lung cancer.3 According to the Forum, the savings accrued by limiting support to mesothelioma claimants only are small: “it would cost less than 20% more to provide cover for all asbestos victims. There is no financial justification for excluding so many people and there is certainly no fairness and justice in doing so. Had the scheme applied to all asbestos victims we would have welcomed it as a significant move forward, despite reduced compensation, which is a huge advantage to insurers. As things stand, claimants continue to subsidise rich and powerful insurers who have ready access to ministers to ensure that their liabilities are limited and they get the best outcome possible.”4 The final UK speaker was Jason Addy, a doctoral researcher from Manchester Metropolitan University School of Law, who was accompanied by community campaigners Paul Watts and Peter Brewin. The thought-provoking presentation entitled “A UK Case Study: 'Eternit' and Widnes – Can History Repeat itself?” detailed the experience of a recent planning process to build over 100 homes on the site of a large former asbestos cement works in the North West of England. The site in Widnes processed various types of raw asbestos from 1916 until the 1990s. Known locally as “the Everite” the Derby Road asbestos factory had a complex corporate history that included a variety of Turner & Newall companies before the site was sold to Eternit Building Products Limited in 1986. Painstaking research from a variety of primary sources, including archived litigation files has, the speaker said, revealed a shocking legacy of contamination and disease as a result of decades of asbestos processing. It is known that white, blue and brown asbestos were used for many years at a factory, which in the past had been “very dusty,” according to the evidence of eyewitnesses. Concern has been expressed about the historic dumping of substantial amounts of asbestos process waste within the site and at various municipal tips nearby. A significant number of known or suspected occupational and environmental disease cases have been observed as a result of past asbestos exposure from this site. These include the terminal asbestos cancer mesothelioma. The full extent of past harm caused may never be known. Whilst Addy was at pains to explain that no laws had been broken, the presentation raised a number of important questions about the current method of the identification, analysis, monitoring and reporting of land potentially contaminated with asbestos. Although scientific and policy issues relating to low level yet significant exposure to respirable asbestos fibers are highly contested, the speaker suggested that current UK regulations, guidance and practice are a legitimate cause for concern and public interest: the UK has no statutory contaminated land database for the public to access. In addition, there is no statutory threshold for environmental asbestos exposure and no Soil Guidance Values relating to asbestos contamination. This perceived paucity of regulatory rigour appeared compounded at the Derby Road "Chadwick Park" housing development with local concern that the planning application was not subject to Environmental Impact Assessment. In addition, campaigners expressed frustration regarding the local planning process that, they believe, had denied them timely access to many associated planning documents despite repeated requests under UK and European access to information laws. It was stressed in the presentation that the housing development had the support of all councillors on the local authority planning committee. The UK's Health and Safety Executive and Environment Agency appeared to be generally satisfied with the planning application and subsequent remediation strategy, yet locals had claimed that a talk given by a spokesman for the remediation company suggested that the type of asbestos waste on the site was “safe enough to lick”. With a renewed focus on house building and active lobbying by those acting for housebuilders to encourage new government grants and subsidies to encourage new home sales, the re-development of brownfield land may remain an attractive and lucrative choice for those willing to take a financial risk.5 It is understandable that those with bitter experience of asbestos ask for a precautionary approach when dealing with potentially toxic sites. The UK asbestos industry of the 20th century has been characterized as perfecting tactics of damage, denial, obfuscation and aggression. Mr Addy's doctoral research and Parliamentary presentation asks “can history repeat itself?” Only time will tell. The keynote presentation of the seminar Asbestos Issues in India was made by Krishnendu Mukherjee, a Barrister in England and Wales and an Advocate in the Bombay High Court. Mukherjee contrasted the British asbestos experience, in particular that of people living in the asbestos hotspot of Armley, with that of workers at the Indian asbestos companies of Hindustan Ferodo, Shree Digvijay Cement Ltd., and Eternit Everest Ltd. In 1982, a Director of the British asbestos giant T&N was appalled at the hazardous exposures he observed at the company's factory in Mumbai: “If the conditions prevailing in India were to be translated to Europe, there would almost certainly be instantaneous revolution.” Assessing the scale of India's asbestos time bomb, Mukherjee said: “The history of the asbestos industry in Britain indicates that thousands of people may become affected by asbestos dust. In India tens of thousands of people may be affected through primary and secondary exposure.” While asbestos use is banned in Britain, annual asbestos consumption in India is now around 322,000 tonnes, making India the world's second biggest asbestos market. With virtually no effective health and safety legislation and no controls on workplace or environmental exposures, commercial interests continue to make huge profits from asbestos processing whilst Indian citizens endure conditions unacceptable in developed countries like Britain. European and North American multinationals played a pivotal role in developing India's asbestos industry; as a result of employment in these commercial operations, thousands of workers have contracted asbestos-related diseases. In a study of 308 at-risk workers, 21% were found to have developed asbestosis; the majority had done so after just five years of employment at an asbestos factory. Another study of 708 at-risk workers found 26% had asbestosis. Unfortunately, obtaining compensation for these asbestos illnesses is incredibly difficult. Information obtained under the Right to Information Act reported that in the past 20 years, 51 people had obtained government compensation for asbestosis (up to £1,600), one for mesothelioma and one for lung cancer (up to £5,000). There are multiple barriers to accessing government and corporate recompense for injuries including:
Mukherjee challenged delegates to the seminar to confront British companies, including banks and financial institutions, which are investing in the Indian asbestos industry; the naming of well-known European financial stakeholders including: Prudential Plc (as part of Prudential ICICI Asset Management Company), Jupiter Global Active Fund/South Asia Investor, Barclays, HSBC and Legal and General stimulated a great degree of concern and discussion. 7 Kathleen Ruff, well-known as the voice of the ban asbestos movement in Canada, explained the changes that have revolutionized the national asbestos debate in recent years. The dominance once exerted by industry stakeholders has been shattered by the mobilization of scientists, public health organizations, government health experts and politicians in Quebec and Canada. Actions taken by international groups, including the Asian Solidarity Delegation 2010 Mission to Quebec, have highlighted the hypocritical asbestos policy of the Ottawa and Quebec Governments. Despite the gains which have been made, however, the fact of the matter is that asbestos lobbyists continue to enjoy political support at the highest level: Prime Minister Harper is on record as saying “Our government will not allow the asbestos industry to be discriminated against.” Quebec's remaining two asbestos companies, neither of which is currently producing asbestos, continue to enjoy special legal protection which insulates them from compensation claims while influential vested interests – asbestos industrialists, PR agents, some trade unions and mining communities – remain financially, emotionally and almost spiritually wedded to the asbestos cause. Speaking about the $58 million loan guarantee promised by the Government of Premier Jean Charest to a consortium developing new underground facilities at the Jeffrey Chrysotile mine, Ruff warned that delays in the handover of the money should not be seen as evidence of a government U-turn. Within two days of these comments, it was announced by the Quebec Government that not only had this money been transferred but that the terms had changed; what was once being billed as a $58 m loan guarantee had now become a $58 m loan. It seems that even the promise of government backing was not enough to convince wary investors of the project's financial viability. Explaining away this not insignificant change, a spokesman for the Economic Development Ministry said: “The Quebec government has done this to accelerate the process of the relaunching the Jeffrey Mine.”8 Commenting on the government subsidy to this toxic industry, Paul Lapierre of the Canadian Cancer Society said: “the Quebec government is in direct conflict with global cancer control as all forms of asbestos cause cancer. We urge the Quebec government to reconsider its decision and cancel the loan guarantee. We believe these funds should instead be directed to projects to help the affected communities diversify their economic base."9 Concluding her presentation, Ruff presciently warned of the need for public vigilance and pressure regarding the possible resurrection of the Canadian asbestos industry. The final presentation of the day, entitled Low Level Asbestos Exposures: Risk Assessment and Policies in the Netherlands, was made by Professor Dr. Alex Burdorf from Erasmus University whose work has been pivotal in getting the government to recognize the dangers posed by low level exposures to asbestos. While the majority of Dutch cases of mesothelioma have traditionally been caused by occupational exposure to asbestos, the discovery of a disease cluster of female mesotheliomas raised concern amongst academics who undertook research into the sources of local asbestos exposure. The details of the cohort are recorded in Table 1. Table 1: Female Mesothelioma Cases in the town of Goor, Netherlands10
Goor was the location of a large asbestos-cement factory operated since 1937 by the Eternit Goor Company. It was common practice for Eternit to distribute industrial debris and waste to the local community free of charge; this popular material was used to pave farmyards, driveways, cycle paths and roads. The discovery of extensive environmental contamination caused by the distribution of the asbestos-containing debris led to discussions in Parliament, calls for a full investigation and the commissioning of an epidemiological survey, completed in 2004. Amongst a larger cohort of Dutch female mesothelioma patients subsequently studied, it was discovered that environmental asbestos exposures from local roads and farmyards accounted for 50% of the cases. Actions taken to quantify and remedy the hazardous situation in the Netherlands include:
Burdorf explained that as a result of research undertaken, the risk from asbestos products contained in Dutch schools has been deemed unacceptable. Asbestos removal work has consequently been carried out in those facilities classed as high priority with phased removal work planned for other schools. The political will to decontaminate the schools in the Netherlands is in sharp contrast to the coalition government's reluctance to tackle the national scandal in our own schools. During the lively discussion segment it became clear that the panel of speakers had addressed subjects which were of particular interest to the Asbestos Sub-Group. The approach taken by the Dutch Government regarding asbestos contamination of schools, the focus of several questions, was compared unfavorably to the current policy of the UK Government. Questions regarding legal technicalities were put to Barrister David Allan while Tony Whitston was asked his views about the announcement expected by the end of the Parliamentary term concerning a fund of last resort for asbestos victims. It was widely commented that this year's event, which had reverted to the normal length of three hours (in 2011, only a two hour slot had been available), was amongst the most successful of all the seminars due to the high quality of presentations and the breadth of subjects covered. Solicitor Adrian Budgen expressed the feelings of many attendees: “The tradition of having an annual asbestos seminar in Parliament remains an affirmation that the needs of asbestos victims and the ongoing challenges of asbestos within the UK infrastructure are not forgotten by our politicians. While I have always found these events to be informative, I was particularly impressed by this year's session as it provided an opportunity to learn about the situation in India and Canada as well as the actions being taken in the Netherlands. I have no doubt that as a result of what we learned on June 27, initiatives will be taken to progress the global campaign for asbestos justice.” 2. School Children are Uninsurable for Asbestos Exposure Risks by Michael Lees By 1918 there was sufficient proof of asbestos disease amongst asbestos workers for the insurance industry in the United States and Canada to refuse to provide them with insurance cover.11 In 2012 the asbestos risks to children in UK schools are so great that the insurance industry will also not provide them with cover. This brings into stark reality the risks to children from asbestos in the nation's schools. Last year the Supreme Court confirmed that Dianne Willmore had been negligently exposed to asbestos at school as a pupil in the 1970s and that this had materially contributed to her death from mesothelioma. The local authority, backed by the insurance industry, fought the case through all the courts of the land, but in the end their insurance company was compelled to pay £240,000 in compensation. If Dianne had been exposed to asbestos at school in the last ten years it is unlikely that her claim would have been covered by commercial insurance. In 2003 a DfE guide on insurance first highlighted that “All insurers now exclude claims for 'gradual pollution.'”12 In 2011 this was confirmed by West Berkshire Council in a Freedom of Information response following the asbestos exposure of children in a school; they stated: “I can inform you that the Council does not have any insurance for asbestos exposure. In common with most Local Authorities and many other market sectors, this cover is simply not available to purchase for non–employees.”13 Although local authorities are unable to obtain public liability insurance cover for asbestos exposure risks, they self insure. However, academies and free schools will not usually have the resources to self insure. There are presently 1957 academies and the numbers are increasing, but they are not under local authority control and are therefore responsible for obtaining their own insurance. The Department for Education have been asked, and a number of parliamentary questions have been tabled, to try and establish how any future mesothelioma claims from former academy pupils will be met. In a series of written answers the Minister admitted that “there is a general asbestos exclusion for public liability insurance.”14 Having acknowledged that they cannot obtain insurance, he confirmed that academy trusts are liable for any future claims from pupils. However, he implied that the claims would be met by governors' liability insurance.15 He is incorrect, as governors' liability insurance is not a catch-all insurance and will not provide cover for other uninsurable risks. A further parliamentary question pressed the Minister over how future claims would be paid. He failed to offer a solution, but instead made it clear that “The Secretary of State for Education... is not legally responsible for any compensation awarded, and nor is he bound by the terms of the funding agreement to compensate an academy for any such liability. However, the Department for Education would work with any affected academy or free school to ensure that it remained financially secure and the education of its pupils was not compromised.” 16 DfE added that they would deal with each claim on a case by case basis. That means they intend to wait until the first victims develop mesothelioma, in perhaps twenty or thirty years time, before addressing the issue. It is wrong that they know that insurance companies refuse to cover the risk and academies cannot, and yet they still refuse to put a system in place to provide compensation for former pupils who are predicted to die. Dianne Willmore's solicitor, Ruth Davies, summed up by stating: “This is a truly worrying situation. If a pupil is exposed and develops asbestos cancer 30 or 40 years later, when they are in their prime of life, there is no one to pay compensation to them or their families. This leaves a hole in the legal system which must be remedied.” That is not the only insurance problem for former pupils. The Supreme Court recently passed judgment on the “trigger” issue for mesothelioma claims when they ruled that injury occurs when the asbestos exposure takes place rather than at the onset of malignancy. However, this only applies to employers' liability insurance and not to public liability insurance. That means that even if there is public liability cover, a future claim's success will depend on the precise wording of the policy. Sadly, there are a number of former pupils who have mesothelioma and are presently taking legal action. The serious anomalies over who will pay compensation in future claims must be resolved now. Developments Mesothelioma Tissue Bank Action Mesothelioma Day (AMD) 2012
The Relative Vulnerability of Children to Asbestos Publications A special supplement on Occupational Cancer in Britain was published by the British Journal of Cancer on June 19, 2012 which contains 13 papers addressing the causation of various types of cancer.21 The paper Preventing occupational cancer by Yiqun Chen and John Osman states: “Asbestos continues to be responsible for the largest proportion of the overall burden of occupational cancer. The study reported in this supplement estimates that one in two occupational cancer deaths and one in three occupational cancer registrations were caused by past occupational exposure to asbestos… Mesothelioma is responsible for the largest burden of occupational cancer due to occupational exposure to asbestos.”22 Events Asbestos & The Law Conference 7th Patient & Carer Day 2012
___________ 1 Kazan-Allen L. Supreme Court Victory for Victims. British Asbestos Newsletter, Issue 86. Spring 2012. 2 Department of Work and Pensions. £300m support for future mesothelioma victims. July 25, 2012. http://www.dwp.gov.uk/newsroom/press-releases/2012/jul-2012/dwp085-12.shtml 3Asbestos Victims Support Groups Forum - UK. New Scheme for Untraced Insurance but 50% Asbestos Victims Excluded. July 25, 2012. http://ibasecretariat.org/forum-press-release-july25-2012.pdf 4 Given the relatively small sums at stake, it is of interest to ask why the scheme was restricted to mesothelioma claimants. An article which appeared in The Guardian on July 9, 2012 entitled “Finance industry's multimillion-pound lobbying budget revealed” might be informative. While it does not mention this scheme or reference asbestos claims specifically it does document the huge sums of money being spent by the British financial services industry (£92 million in 2011) in the “economic war of attrition” to secure favourable conditions for the financial services sector. 5 In February 2012, the Department for Environment, Food and Rural Affairs issued regulations intended to make it easier for developers to build on contaminated land: Contaminated Land Statutory Guidance. 6 According to information obtained by the speaker, the Government of India is one of the largest shareholders in the asbestos company: Metals and Minerals Trading Corporation. 7 Data obtained from the SOMO-Centre for Research on Multinational Corporations: http://somo.nl/ 8 Kazan-Allen L. New Asbestos Mine in Quebec. June 30, 2012. 9 Canadian Cancer Society. Quebec Government Gives Loan Guarantee to Asbestos Mine. June 29, 2012. 10 Burdorf et al. Pleuramesothelioom bij vrouwen in verband gebracht met milieublootstelling aan asbest. 2004;148:1727-31. 11 European Environment Agency. Late lessons from early warnings: the precautionary principle 1896 – 2000; Chapter 5 authors: David Gee and Morris Greenberg. 12 Department for Children, Schools and Families. Insurance a guide for schools. April 2003. 13 West Berkshire Council Ref: FOI/2011/IR/10 12 Sep 2011. 14 Parliamentary written answer Schools asbestos. Ian Lavery MP/ Minister of State Nick Gibb MP. 21 Mar 2012. 15 Parliamentary written answer Schools asbestos. Annette Brooke MP/ Minister of State Nick Gibb MP. 22 May 2012. 16 Parliamentary written answer Schools mesothelioma. Annette Brooke MP/ Minister of State Nick Gibb MP. 12 Jun 2012. 17 Papworth opens mesothelioma cancer research centre. June 29, 2012. 18 Kazan-Allen L. Action Mesothelioma Day 2012. July 7, 2012. 19 COC Agenda: http://www.iacoc.org.uk/meetings/documents/Julymeeting.pdf 20 Email from Sue Kennedy to Laurie Kazan-Allen received on August 2, 2012. 21 Table of Contents. British Journal of Cancer (2012) 107, Issue S1(S1-S108). June 19, 2012. 22 Chen Y, Osman J. Preventing occupational cancer. British Journal of Cancer (2012) 107, S104-S108. June 19, 2012. http://www.nature.com/bjc/journal/v107/n1s/full/bjc2012125a.html 23 http://www.mesothelioma.uk.com/news-49.htm ___________ Compiled by Laurie Kazan-Allen |