ISSN 1470-8108 Issue 88 Autumn 2012

Contents:

1. Britain's Mesothelioma Epidemic
2. Mesothelioma Scheme not Fit for Purpose
3. Asbestos Closes School – Heaters Blowing Asbestos Fibres into Classrooms
4. News Round-up

1. Britain's Mesothelioma Epidemic

For the twentieth year in a row the number of deaths from mesothelioma has risen in Great Britain. Statistics released on October 31, 2012, by the Health and Safety Executive (HSE) paint a bleak picture of damaged lives and premature deaths.1 Of the 8,000 annual deaths caused by occupational cancer in Britain, 4,500 (56%) are believed to be related to exposure to asbestos. The latest data show that of the 2,347 people who died from mesothelioma in 2010, 80% were men, most of whom were occupationally exposed to asbestos. The highest at-risk group remains men who worked in the building industry. According to the HSE, the lower level of female mesothelioma deaths (401 in 2010) relates to non-occupational exposures. Placing Britain's mesothelioma figures into a global context reinforces the high price paid by this country for its consumption of asbestos. Research based on World Health Organization data shows that of the 92,253 mesothelioma deaths reported by 83 countries between 1994 and 2008, over 50% took place in Europe.2 The country with the highest mortality rate was the UK with 17.8 mesothelioma deaths per million. While the rate for the U.S. (5 deaths per million) took 8th place in the global rankings, the U.S. reported the highest number of mesothelioma deaths (17,062) of any country with the UK coming second at 13,517.

Unfortunately, mesothelioma is just one of the diseases which can affect people who have been exposed to asbestos. When deaths from cancers of the lung, larynx, ovary and respiratory conditions are added, the annual UK asbestos death toll is likely to exceed 4,500.3 This country has paid a terrible price for its ignorance and greed; decades after the asbestos hazard was known, the use of asbestos remained legal. Not one British executive, politician or asbestos lobbyist has been held to account for the deaths caused by the decisions they made. While recent newspaper reports have highlighted the asbestos contamination in the Palace of Westminster, the deadly contamination of our schools remains a low priority for both the national government and the media.4 When asked about the need for a national audit of asbestos in schools, the Schools Minister David Laws replied on October 15, 2012: “A national audit of asbestos is unnecessary as it would duplicate records which those responsible for managing asbestos are required to keep.” The Welsh authorities disagree. On November 27, 2012, Leighton Andrews, Minister for Education and Skills, Wales issued a Written Statement stressing the need to “ensure that rigorous management of asbestos [in schools] is undertaken by local authorities.” The Minister was categorical about the ongoing hazard posed by asbestos contamination of Welsh schools:

"I do not feel sufficiently assured at this stage that local authorities are discharging their statutory duties to manage asbestos and have sufficient plans in place. I intend to ask local authorities that they ensure that Head Teachers and Governing Bodies know and understand their obligations and duties in relation to legal requirements and that they are following guidance where provided…"5

The only way to prevent the seemingly endless epidemic of asbestos-related disease is for the hazard to be removed comprehensively not only from the workplace of Ministers, civil servants and politicians but also from all schools, public buildings and private properties.

2. Mesothelioma Scheme not Fit for Purpose

by Ian McFall6

Measures announced by the coalition government to introduce an untraced insurers scheme for mesothelioma, and an online electronic claims process for all mesothelioma claims, fall far short of benevolence by the government and the insurance industry.

The impact will be to deliver substantial savings to the insurance industry by providing significantly less compensation to victims overall and limiting the ability of those affected to pursue litigation against their former employers.

The last Labour government published a consultation paper in 2010 on “Supporting people who need to trace Employers' Liability Insurance.” This came after a campaign by trade unions, asbestos victim support groups and others for the establishment of an insurance fund of last resort for employer liability claims.

Many industrial disease sufferers negligently exposed in the course of their work are unable to bring a claim because their former employers have gone out of business and their employers' liability insurers cannot be traced.

The consultation paper options proposed establishing an Employers' Liability Insurance Bureau (ELIB), modelled on the Motor Insurers Bureau for those injured or killed by uninsured car drivers, to compensate all industrial disease victims unable to trace an employer's liability insurer.

The consultation ended in May 2010, days before the general election which Labour lost. We were a long time waiting for the coalition government's response. It came on July 25 this year, in an announcement by Department for Work and Pensions Minister Lord Freud. He set out a package of measures with two main components:

  1. An untraced insurance scheme funded by a compulsory levy on the insurance industry; and
  2. An online electronic portal and Pre-Action Protocol for all mesothelioma claims.

Untraced insurance scheme

An untraced insurance scheme funded by the insurance industry is a superficially attractive measure. But it is very far from the ideal option that Labour consulted on and is the result of a deal struck behind closed doors by the government and the insurance industry without any consultation with claimants, support groups or unions.

This lack of engagement with the claimant community shows utter disregard for the principle of transparent government and due process.

Crucially, the scheme only applies to mesothelioma sufferers and only to those diagnosed after 25 July 2012. It offers no protection to other industrial disease victims.

It is not a “no fault” scheme and it will not pay full compensation. Claimants will only receive an as yet unspecified amount. It remains unclear who will qualify under the scheme and other than a reference to an age related tariff, how the levels of compensation will be set is vague. Neither do we know what the time limits for applications will be, whether dependants will be compensated in fatal cases nor how claims will be investigated and paid.

Claims process

An electronic claims process or “portal” was established in 2010 to deal with low value, straightforward road traffic accident (RTA) claims. The RTA portal was introduced to reduce costs and improve efficiency in claims valued between 1,000 and 10,000 where liability is admitted. It introduced set stages in the claims process with fixed recoverable costs and an electronic portal facilitating the exchange of information.

There is little evidence that it is achieving these aims. Research by Professor Paul Fenn commissioned by the Ministry of Justice showed that the RTA portal is delivering significantly lower average compensation payouts, though there was evidence of a very small reduction in average settlement delays. [Ministry of Justice Research Series report 13/12, July 2012, Professor Paul Fenn, Nottingham University Business School]

The point here is that a portal designed for the most straightforward personal injury claims for minor whiplash injuries is failing to improve outcomes and yet will be the model for an electronic portal which will be mandatory for all mesothelioma claims, not just those where the insurer is untraced.

The portal will be designed and controlled by the insurance industry and is inextricably linked to the mesothelioma untraced insurance scheme. Without significant and expensive remodelling, it simply won't cope with the complexity of multiple employer mesothelioma claims.

We welcome the stated policy aim of streamlining the process to speed up claims and reduce costs. No one would argue against mesothelioma sufferers and their families receiving the full compensation they are entitled to more quickly than they do under the current system.

But what a portal will actually create is an unlevel playing field, putting insurers in an advantageous position because they will dominate the process. It will deliver ownership and control of claims management into the hands of the insurers to the detriment of mesothelioma claimants.

By imposing fixed costs for mesothelioma claims which settle within the portal, insurers will have the upper hand because claimant lawyers will not be able to carry out extensive and thorough investigations.

Government data about the performance of the Coal Miners Compensation Schemes showed that, contrary to delivering fair compensation, fixed costs attracted many non-specialist lawyers who were prepared to do the minimum amount of work for the claimant because the less they did the more profit they made. The result is that average levels of compensation recovered by claimants suffer. [Hansard. 26 June 2009, Column 1201W]

There are many issues the government must address before it can be established whether or not a mesothelioma portal style claims process is capable of working in practice.

There is as yet no clue about what the timescale will be for insurers to reach decisions via the portal or what happens if a claimant dies during the portal stage. There appears to have been no consideration of how the portal will deal with the requirement to restore a dissolved company in order to obtain a valid settlement. These and many other important, unanswered questions cast doubt on whether it is even conceivable that a mesothelioma claims portal could be fit for purpose. It is more likely that it will serve to reduce average compensation and act as a barrier to litigation: the only proven, effective leverage for specialist claimant law firms to bring mesothelioma claims to a conclusion without delay using the Practice Direction and fast track procedure in the Royal Courts of Justice.

Call me cynical, but this must surely be the insurance industry's intention.

The debate about the correct way forward must not be framed by lawyers' costs. The primary objective of trade unions, victim support groups and specialist claimant lawyers is to see the maximum compensation reaching the greatest number of sufferers in the minimum time at no cost to them or their families. The government and insurance industry's package of measures is wholly inconsistent with that objective.

Insurers are major donors to the Conservative Party. That they are able to do backroom deals with ministers is unsurprising.

The bottom line is that this package of measures has more to do with insurance industry profits and shareholder returns than with concerns for mesothelioma victims. After all, this is the same industry that has spent a fortune in legal costs for over a decade on a strategy to evade liabilities to asbestos victims and which has only ever paid out in other industrial disease claims – deafness, welders lung, vibration white finger and repetitive strain injuries etc. – when litigation forced them to do so. The leopard hasn't changed its spots.

3. Asbestos Closes School – Heaters Blowing Asbestos Fibres into Classrooms

Michael Lees7

On October 12, Caerphilly Council received an asbestos report for Cwmcarn High School. They closed the school with immediate effect.8 Nine hundred staff and pupils were sent home and in early November were transferred to another school. The move has cost 1.4 million, but the disruption and anxiety this has caused is unquantifiable. The report concluded “We are of the opinion that it is not feasible to continue operating the school in the current condition based on the risks imposed on occupants”9 and advised the council to consider demolishing the school.

The report identified damaged asbestos insulating board (AIB) panels in the classrooms with widespread AIB debris in the ceiling void. Sampling found raised fibre levels and amosite fibres were identified in classrooms and the stairwell. The classroom cabinet heaters were also emitting fibres.

Fans in the classroom heaters suck in air, which passes over heating elements and is then emitted through grilles into the room.10 The fans and heating elements are contained within a box which is typically lined with AIB containing amosite. This form of heating was developed in the 1950s and became one of the most popular means of heating schools.11

The problem of asbestos fibre release from this form of heating is not new: it has been known about since 1981. Air sampling by a local authority in a number of schools found amosite fibres were being released with levels up to 60,000 fibres per cubic metre of air. (A child inhales on average about 20 cubic metres of air a day.)

The HM Principal Inspector of Factories gave advice on how to reduce the exposures: “Cleaning out of heaters to remove accumulated dust, replacement of boards (where possible) with asbestos free substitutes, and sealing of boards where replacement is not possible.” 12 In 1982 HSE issued a warning and the same advice to all local authorities.13 Despite the warnings, thirty years later heaters at Cwmcarn contain unsealed AIB panels, AIB debris and asbestos fibres. Up to 7,000 fibres per cubic metre were being emitted from the heaters. The Asbestos in Schools Group has asked the Department for Education to issue an urgent warning to all schools about these heaters.

Eighty-five per cent of schools in Wales contain asbestos.14 Following the incident, Leighton Andrews AM, the Education Minister in the Welsh Government, instructed all schools to provide information within two weeks of the status of asbestos in their schools.15 In a parliamentary debate the Minister admitted “As a consequence, and based upon, the responses received I do not feel sufficiently assured at this stage that local authorities are discharging their statutory duties to manage asbestos and have sufficient plans in place.”16

The Minister was misleading in his statement about school teacher mesothelioma deaths, implying that because the mesothelioma death rate for teachers was the same as that for the population as a whole there was no need for concern. He is wrong. In a profession where one should expect little or no asbestos exposure school teachers should not be dying of mesothelioma. But they are. More than 253 school teachers have died of mesothelioma since 1980 with more than 139 dying in the last ten years. School cleaners, cooks, caretakers, teaching assistants, nursery nurses and school secretaries are also dying of the cancer. This shows there has been widespread asbestos exposure in schools.

We might expect the mesothelioma death rate for school teachers to be far lower than that for the general population, because the average rate includes contributions from high risk occupations. However, even compared to others in similar occupations teachers are found to have a higher rate of mesothelioma deaths; if the comparison is with occupations definitively known to have little asbestos exposure then the teachers' rate is significantly greater.

The fact that others are dying doesn't make teachers' deaths from an avoidable disease acceptable; rather than dismissing the mesothelioma death rates of teachers as unexceptional, the Minister should instead examine the implications: there are many children in a classroom with each teacher, and if the teachers are being exposed to asbestos then so are the children.

In the USA they estimated that for every teacher and support staff death from mesothelioma nine former pupils would subsequently die from their asbestos exposure at school. Based on the number of teachers who have died of mesothelioma in the UK during the last ten years, that would proportionately equate to more than 1,000 subsequent deaths.17 This is a serious problem that urgently needs addressing.

4. News Round-up

Developments

Simon Pickvance

Our esteemed colleague Simon Pickvance died on November 23, 2012 from the deadly asbestos cancer, mesothelioma. For decades Simon had been at the centre of the campaign for workers' safety in Britain and abroad; he was a researcher, a grassroots activist, a mentor and a friend. He was also a presence, always there, always working to expose the links between hazardous exposures and occupational diseases. Simon was a man of honor, integrity and keen intelligence whose life was dedicated to the service of others. He was much admired and greatly loved. His death is a great loss.18

Frank Baker v Tate & Lyle PLC

A “ground-breaking” decision handed down in mid-November 2012 awarded 65-year-old mesothelioma sufferer Frank Baker 205,000 compensation for exposure to asbestos he experienced whilst employed as a lagger's laborer at a Tate & Lyle sugar factory in London. As Baker's former employer, Climax Insulation & Packing Ltd., had ceased trading and as the firm's employers' liability insurers could not be located the claim was brought against Tate & Lyle, the occupier of the premises. Commenting on the case Solicitor Harminder Bains said: “This is the first time I have heard of a judgment being made against an occupier in a mesothelioma case. Despite the case being contested, the High Court was satisfied that Tate & Lyle owed a duty of care, as occupier of the building, to Mr Baker.”

June Hancock Mesothelioma Research Fund (JHMRF)

The JHMRF has awarded a grant of 120,000 for mesothelioma research focusing on the effectiveness of chemotherapy to a team from Leicester University led by Professor Dean Fennell. One area of investigation of the study will be the role of gene BRCA1 and what the absence of this gene signifies when treatment options are considered.19

Publications

11th Edition of Judicial Studies Board (JSB) Guidelines

Revisions made in the 11th edition of the JSB Guidelines have raised the valuation of mesothelioma personal injury claims. While the 10th edition stipulated the range of compensation as 35,000 - 83,750, the 2012 edition published in September has increased the valuation range to 50,000 - 90,000.20

All-cause mortality and cancer incidence among adults exposed to blue asbestos during childhood

This paper, which was published in the August 9, 2012 issue of the American Journal of Industrial Medicine, concludes that “Exposure to blue asbestos in childhood [in the crocidolite mining town of Wittenoom] is associated with an increased risk of cancer and mortality in adults.”21

Events

British Award for French Ban Asbestos Campaigner

On November 24, 2012, Dr. Annie Thébaud-Mony was honored for her "services to working people," when she received the prestigious Robert Tressell Award from the Construction Safety Campaign (CSC), a group representing British workers. The presentation was made in Paris by André Letouzé, a retired worker from the chemical industry and a long-time ban asbestos campaigner, at the Annual General Meeting of the Henri Pezerat Association. Annie, who was delighted to accept this award, had previously turned down the Legion of Honor, France's highest accolade, in protest at the government's "indifference" to industrial crimes and lack of funding for vital research. Other people honoured by the CSC at their Doncaster meeting on November 24 were: Paula Walker, Michael Lees, Neil Vernon and Barry Todman.

Asbestos litigation – Back to Basics Conference

A one-day conference is being held on January 4, 2013 by the Merseyside Asbestos Victims Support Group in Liverpool. The agenda, which features experts such as Engineer Christopher Chambers, Barristers Andrew McDonald and Jeremy Greenfield, Consultant Respiratory Physician Dr. Chris Warburton and others, is accredited by the Law Society and the Association of Personal Injury Lawyers. For more information contact: Craig Fisher: 0151 242 0707.

History

In Memoriam Hubert Montague Murray, M.D., F.R.C.P.

November 25, 2012 marked 105 years since Dr. Montague Murray died. Dr. Murray is one of the most famous names in the history of asbestos-related diseases, for it was Dr. Murray who presented the first evidence to Parliament about the occupational consequences of asbestos exposure. It is sad to reflect that Dr. Murray died in 1907, one year after he notified the authorities about the asbestos hazard. 22

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1 http://www.hse.gov.uk/statistics/causdis/mesothelioma/mesothelioma.pdf

2 Delgermaa V, Takahashi K, et al. Global mesothelioma deaths reported to the World Health Organization between 1994 and 2008. Bulletin World Health Organization 2011;89:716-724C.
http://www.who.int/bulletin/volumes/89/10/11-086678/en/

3 IARC Monograph 100C: A Review of Human Carcinogens: Arsenic, Metals, Fibres, and Dusts. 2012.
http://monographs.iarc.fr/ENG/Monographs/vol100C/mono100C-11.pdf

4 Martin D. The 1.6 billion bill to rescue crumbling Parliament: Victorian structure is stuffed with asbestos and leaky roofs. November 1, 2012.
http://www.dailymail.co.uk/news/article-2226063/The-1-6-billion-rescue-crumbling-Parliament-Victorian-structure-stuffed-asbestos-leaky-roofs.html

5 Asbestos in Schools. Written Statement by the Welsh Government. November 27, 2012.
http://a-a-s-c.org.uk/wp-content/uploads/2012/01/Written-statement-by-Welsh-Government-.-Asbestos-in-Schools-27-November-2012.-1.pdf

6 Ian McFall is a member of Thompsons Solicitors LLP and National Head of Asbestos Litigation; email: ianmcfall@thompsons.law.co.uk

7 Michael Lees is a founder member of the Asbestos in Schools campaign.

8 Caerphilly Council Report by Corporate Director of Education on Cwmcarn High School. October 23, 2012.

9 Asbestos Investigation Report Cwmcarn High School. Santia. October 26, 2012. p6 para d.

10 Andrew Saint. Towards a Social Architecture. The role of school Building in Post War England. Yale University Press. 1987. p85, 86.
Marks of CLASP system in detail. Marks 2, 3, 3b Services, heating. CLASP Consortium. Undated.

11 Andrew Saint. Towards a Social Architecture. The role of school Building in Post War England. Yale University Press. 1987. p86.

12 Letter. HM Principal Inspector of Factories to Principal Architect CLASP ADP/SNC/03. October 23, 1981.

13 HSE. Asbestos in warm air heating systems (Revised). LAAIC/C 3/5 Health and Safety Commission. August, 1982.

14 Call for routine tests after Cwmcarn closure. BBC News. October 30, 2012.

15 Campaign group calls for register on asbestos in schools. Daily Post. October 30, 2012.

16 Written Statement by Welsh Government. November 27, 2012.
Parliamentary debate. November 28, 2012.
http://news.bbc.co.uk/democracylive/hi/wales/newsid_9766000/9766956.stm

17 See: Asbestos in Schools; the scale of the problem and the implications. p37-42; for more detail see Annex B and C, p59-63. http://www.asbestosexposureschools.co.uk/pdfnewslinks/AiSreportonASBESTOSINSCHOOLS.pdf

18 See: Tribute to Simon Pickvance.
http://ibasecretariat.org/lka-tribute-to-simon-pickvance.php
In Memory of Simon Pickvance.
http://www.etui.org/Topics/Health-Safety/News/Tribute-to-a-champion-of-workers-rights

19 http://www.junehancockfund.org/category/research/

20 Guidelines for the Assessment of General Damages in Personal Injury Cases. September 2012.
http://ukcatalogue.oup.com/product/9780199664757.do

21 http://www.ncbi.nlm.nih.gov/pubmed/22886909

22 In Memorium Hubert Montague Murray, M.D., F.R.C.P. The Charing Cross Hospital Gazette. December, 1907. http://ibasecretariat.org/murray_obit.pdf

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Compiled by Laurie Kazan-Allen
©Jerome Consultants