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| ISSN 1470-8108 | Issue 90 | Spring 2013 |
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Contents:
1. Mesothelioma: The British Disease Remembering Debbie Brewer, 1959-2013 As we were going to press, the death was announced of mesothelioma warrior Debbie Brewer. Having been diagnosed with pleural mesothelioma when she was just 47 years old (2006), Debbie was determined to use every available means to reach out to other sufferers and help spread awareness about this dreadful disease. Debbie was one of life's natural communicators. She was interviewed for TV programs and newspaper articles and helped pioneer an online support community for people with mesothelioma, their family and friends. Debbie was very proud of the work of “Mesothelioma Warriors” and its Facebook page which, she said provided “comfort as well as answers from one sufferer to another. No matter what time of day, someone somewhere will respond to a post by one of our members. If you are having a down day, you can speak openly on our site, without fear of upsetting your family. Our anger group enables people to cope.” Debbie's asbestos exposure was a result of her father's employment from 1963 to 1966 in Plymouth; as a lagger he removed asbestos insulation from pipework for the Ministry of Defence (MoD). He returned home at the end of the day with asbestos on his work clothes. He died of lung cancer in August 2006, three months before his daughter's cancer was diagnosed. Debbie's case, one of the first to hold the MoD to account for its negligence, was settled at the end of 2007. Debbie's death came suddenly just a few days after the last update to her website. Typically, the June 4 posting was about the amazing efforts of U.S. mesothelioma sufferer Janelle Bedel, or “Wonder Woman” as Debbie called her. Debbie was a single parent of three children, the youngest of whom was ten years old when the mesothelioma diagnosis changed her family's lives forever. She was a positive presence in the lives of so many people, many of whom she had never actually met. Our thoughts go out to her children, relatives and friends. She will be sorely missed. 1. Mesothelioma: The British Disease By the end of this year (2013), more than 60,000 Britons will have died from asbestos-related diseases this century. Government data reveal an inexorable rise of mesothelioma mortality since 2000, with 2,347 deaths reported in 2010, the most recent year for which figures were available.1 Worse is to come according to Lord Freud, Parliamentary Under-Secretary of State, Department for Work and Pensions, who told the House of Lords on May 20, 2013 that: “We expect there to be roughly 28,000 deaths from mesothelioma between July 2012 and March 2024.”2 Commenting on the mesothelioma epidemic, Tony Whitston, Chair of the Asbestos Victims Support Groups Forum UK, said: “The predicted increase in numbers of new mesothelioma diagnoses is witnessed 'on the ground,' day by day by all the asbestos victims' support groups. Also in line with predictions, an increasing number of mesothelioma sufferers now come from the construction industry. However, we are also seeing an increasing number of mesothelioma sufferers, many of whom are women, who simply do not know how or where they were exposed to asbestos. A worrying number of teachers have been diagnosed with mesothelioma, which is a cause of great concern given the number of school children who may also have been exposed to asbestos.” Since 2006, mesothelioma sufferers, victim support groups, charities and campaigning bodies throughout the UK have held an annual “Action Mesothelioma Day (AMD)” to raise public awareness of this aggressive cancer. At AMD conferences, information sessions, public meetings, outdoor rallies and church services, the injured have spoken out about the impact asbestos exposures have had on their lives; on many occasions, it has been the relatives who have had to speak about the plight of those whose lives had been sacrificed to asbestos. The number of people dying in this country from mesothelioma has increased by 14% since 2006. Data from the World Health Organization (WHO) confirms the validity of labelling mesothelioma the “British disease.” According to WHO statistics, between 1994 and 2008 “the United Kingdom had the highest age-adjusted [mesothelioma] mortality rate, at 17.8 per million, followed by Australia, at 16.5 per million, and Italy, at 10.3 per million.”3 During the 14 years covered by the WHO, there were 13,517 UK deaths from mesothelioma; only the United States, a country with a population of 316 million, recorded more mesothelioma deaths (17,062). The Mesothelioma Bill 2013 As the incidence of mesothelioma and the likelihood that victims would seek legal redress for their injuries have grown,4 so too has the determination of British defendants to find new strategies to minimize their asbestos liabilities. When it became clear that an insurance industry-funded scheme to compensate victims penalized by the loss of Employers' Liability policies was likely, a concerted effort was made by vested interests to curtail the entitlement of applicants and scale of benefits. Where victims' groups called for measures that recognized the rights of all those affected, insurers argued for limitations on access and eligibility. Where civil society campaigners demanded full financial recompense, insurers argued for age-related lump sum payments which were a percentage of civil compensation awards.5 During the consultation over what was to become the “Mesothelioma Bill,”6 Lord Freud met insurers 14 times; during the same period (October 2010 to September 2012), he met representatives from victims' groups twice.7 Predictably, the watered down bill which finally emerged had more in common with the insurers' vision than with the victims' needs.
Good News, Bad News During the Queen's Speech on May 8, 2013, which marked the official opening of Parliament, the Queen announced: “Legislation will be introduced to ensure sufferers of a certain asbestos-related cancer receive payments where no liable employer or insurer can be traced.”8 The reforms referred to in that statement are set out in the Mesothelioma Bill which on May 9 and May 20 received its first and second readings in the House of Lords.9 According to Department of Work and Pensions estimates, from April 2014 to March 2024 the Mesothelioma Payment Scheme will provide compensation to ~2,900 mesothelioma sufferers in England and Wales, Scotland and Northern Ireland10 who would otherwise, due to the defunct status of negligent employers and the inability to trace relevant Employers' Liability policies, have been unable to recoup compensation. Aside from an injection of £17 million by the government, the £355m scheme will be paid for by a compulsory levy on active Employers' Liability insurers;11 the top five insurers will contribute almost 60% of the total fund.12 The benefits of the Mesothelioma Bill and other proposed legislative changes are, purportedly, as follows:
The reaction of victims' groups and trade unions to the details of the scheme was less than positive. Critics highlighted the ineligibility of 50% of all asbestos victims impacted by the inability to trace negligent employers or Employers' Liability policies; these include people suffering from respiratory diseases and cancers caused by asbestos or people who had been diagnosed with mesothelioma prior to July 25, 2012.14 The 30% underpayment of compensation and the age-related downsizing of awards is condemned as are planned changes to the civil litigation system which will “straight-jacket [mesothelioma] claimant's cases … [and] will potentially increase delay, reduce funding and will impact on the levels of damages received.”15 A statement by the Asbestos Victims Support Groups Forum UK sums up the frustration and anger felt: “it must be remembered that for decades it was asbestos victims who bore the burden of untraced insurance and insurers have saved hundreds of millions avoiding liability for insurance they wrote. For decades, the taxpayer has funded the government lump sum payments for those who could not trace their insurer, and they have only recovered those payments when an insurer was found since 2008… The insurers have negotiated a scheme which excludes 50% of asbestos victims, they are excused liability for all claims prior to 25 July 2012, their costs are reduced because average compensation means they do not have to engage in negotiations about individually assessed payments, and fault must be proved. And, the Government is giving insurers £17 million to help set up the scheme. On top of all that they want to reduce average compensation by 30%. That is simply not acceptable.”16 Steve Murphy, General Secretary of the Construction Union UCATT, was even more outspoken: “Deaths from asbestos are entirely preventable. For decades Governments and employers knew the risks but chose to do nothing. It is disgraceful that even now they are trying wherever possible to deny workers compensation… This watered down scheme which denies compensation to many victims and slashes compensation to those who qualify, demonstrates that the Conservatives are in the pocket of the insurance industry.”17 What Happens Now? Amendments to the text of the Mesothelioma Bill under consideration by the House of Lords were submitted by June 3. On June 5, the Mesothelioma Bill went to the Lords' Grand Committee; amendments to the bill were considered during a meeting which lasted for four hours.18 There was heated debate on aspects of the bill including the arbitrary start date, the exclusion of the self-employed and victims of para-occupational exposure and the amount of compensation to be paid. Discussions at the Grand Committee will resume on June 10, at which time it is expected that voting on the amendments proposed will take place. According to Parliamentary procedure, a gap of fourteen days is required between the end of the committee stage and the start of the report stage, with a further three day-delay before the Bill's third reading and final vote. According to the prescribed timetable, the draft legislation could arrive in the House of Commons by the end of June. Should amendments by the Lords survive until then, the Commons will, according to tradition, need to make concessions. Even as mesothelioma sufferers await further Parliamentary developments, the limited provisions of the Mesothelioma Bill were attacked on June 2, 2013 in the pages of the Sunday Telegraph. It is amazing how much questionable innuendo and crass conflation can be contained in a 378-word text. In the piece entitled “There's money in asbestos. Ask a lawyer,” Columnist Christopher Booker, a long-time critic of UK and EU asbestos policies, stated that:
One can only hope that representatives in both Houses of Parliament are better-informed and more compassionate. If the Mesothelioma Bill were amended to cover all those whose lives had been sacrificed to asbestos, as Early Day Motion 180 urges, it would be a small price to pay for ensuring that justice was done.20 Surely, this is the right thing to do. 2. Government Advisory Committee on Cancer Conclusion By Michael Lees On June 7, 2013 the Government's advisory Committee on Carcinogenicity (CoC) published a report that concludes children are significantly more vulnerable to exposure to asbestos than adults.21 They are more at risk because there will be more time for mesothelioma to develop following exposure to asbestos – the younger the child, the greater the risk. The increased lifetime risk of developing mesothelioma for a five-year-old child is about five times greater than an adult aged thirty. Insufficient scientific research has been carried out to determine whether or not a child's physical immaturity makes them more vulnerable, so the Committee were unable to come to a conclusion over this aspect. A leading paediatrician, Professor Andrew Bush, stressed that as the science is incomplete the precautionary approach must be followed where children are involved.22 He also warned that the juvenile lung is particularly susceptible to injury and that serious lung damage below the age of five would remain for life. The scale of the asbestos problem in schools, and the increased risk to children, was graphically put in focus by a leading epidemiologist, Professor Julian Peto, who gave evidence to the Education Select Committee in March.23 He considers that it is reasonable to assume that up to 300 people a year could die from asbestos exposure experienced as children at school. The estimate is made on exposures in the 1960s and 1970s. It is therefore a reasonable assumption that considerably more than 3,000 people will die from childhood exposures at school. That is an appalling death toll from the simple act of attending school. All the asbestos in schools is now old and much is deteriorating due to the lack of proper maintenance. Therefore staff and pupils continue to be exposed to asbestos, and unless there is a fundamental change in asbestos policy they will continue to be exposed long into the future. Department for Education asbestos policy is based on advice from HSE. A senior director of the HSE, David Ashton, assured the Select Committee that it was safer for staff and pupils to leave asbestos in schools and manage it for the remaining life of the buildings, than to remove it. HSE have been asked to provide the evidence that supports their policy, but they have failed to do so.24 Instead, Mr Ashton gave as an example Cwmcarn school in Wales which he claimed “is perfectly safe to reopen.”25 That is despite the fact that the Council, two asbestos consultancy firms and an independent assessor consider it unsafe. The Council evacuated staff and pupils from the school last October and will spend over £1million on asbestos removal before it can be safely reoccupied.26 The Minister confirmed in his evidence to the Select Committee that the asbestos policy for schools would be reviewed once the Committee on Carcinogenicity report is published.27 He has also stated “We are keen to ensure that policy on asbestos is evidence-based.”28 The CoC report provides the evidence that children are considerably more at risk from asbestos exposure than adults. This should be the overriding factor in the Government's review of asbestos policy for schools. That review must critically examine the policy of managing asbestos and it must seriously question the premise that it is safer for children to spend their school careers in buildings that contain large amounts of asbestos – the evidence is that the policy is tragically wrong. 3. Queen's Bench Asbestos List There is no question that the introduction of the asbestos list in the Queen's Bench Division (QBD) of the Royal Courts of Justice (RCJ) in 2002 revolutionized the processing of claims for asbestos victims. Under the leadership of Master Steven Whitaker, now Senior Master and the Queen's Remembrancer, the issue of liability in up to 98% of these cases is determined at an early stage; after interim payment of damages, the cases proceed to an assessment of damages with less than 1% failing to be resolved before an assessment hearing.29 The fast track procedures introduced by the Senior Master minimized delays and use of court resources by the introduction of telephone hearings, emails, e-disclosure and strict timetables. It is no wonder that legal practitioners from around the country issue their mesothelioma claims in London. Recent criticism has been expressed by the Association of District Judges (DJs) regarding the “over-use” of the London specialist asbestos list. The DJs pointed out that there was a shorter wait for trials in Leeds than in London. Nevertheless, the QBD remains the preferred route for the majority of mesothelioma and other fatal asbestos cases.30 It is easy to see why. Commenting on a traumatic experience with a local court, one solicitor reported: “I issued in Hull last year – what a mistake, never again. The defendant's counsel took advantage of a weak judge who admitted that he wasn't familiar with these sorts of claim and wouldn't deal with them on a 'show cause' basis as that seemed a bit over the top and perhaps it was fair and right to give the defendants more time. What a nonsense it was.” Feedback from Manchester and Liverpool, where efficient specialist lists are operational, is more positive. However, Birmingham lawyer Alida Coates is unapologetic about her exclusive use of the RCJ: “There are too many variables with the regional court centres – some district judges follow the Mesothelioma Practice Direction and some pay scant regard. If you issue your claim in the RCJ, you know the cases will be managed in a consistent manner and you can expect fairness. Defendants can get away with much more in other court centres, and will exploit that to the full. To obtain the best possible hearing for our clients, our preference is the RCJ.” Developments Recovery of Medical Costs for Asbestos Diseases (Wales) Bill The Recovery of Medical Costs for Asbestos Diseases (Wales) Bill31 was subject to a last minute delay in early June, 2013 due to “technical reasons.”32 It is anticipated that the bill will be on the agenda of the Welsh Assembly on July 10; should things proceed as expected, it could become law by mid-August 2013. The bill provides measures to allow the NHS to recoup the medical costs of treating Welsh asbestos victims from insurers. The Association of British Insurers has claimed that the Welsh Assembly is exceeding its remit in claiming “a general tax raising power” which it does not have under the devolution settlement. Environmental Information Regulations Request Requests were submitted in April 2013 under the Environmental Information Regulations 2004 relating to the content and cost of the asbestos management plan and asbestos audits for the parliamentary estate (Palace of Westminster). The reply received from the “FOICOMMONS” on May 15, 2013 stated: “Spend on asbestos management and remediation is recorded for the entire parliamentary estate and not solely the House of Commons. The total spend over the last three years is £3,402,254.66; figures are not held for earlier years… Within the terms of your request, we have conducted necessary searches and have located the following information:
We have estimated that the above represents circa 40,000 pages of information. Further to this, we also hold re-surveys and the individual hazard notifications issued to crafts people on each job performed on any space containing asbestos, which in terms of page numbers, we estimate will again number in the high thousands.” Publications The Long and Winding Road to an Asbestos-free Workplace The long and winding road to an asbestos-free workplace, edited by Jan Cremers and Rolf Gehring, was published in June 2013 by the European Institute for Construction Labour Research.33 The contributing authors, all of whom are experts in their field, tackle a range of subjects including trade union mobilization on asbestos, the growth of the international asbestos victims' movement, EU political action on the post-ban asbestos hazard and country-specific aspects of the asbestos struggle. Measures needed to protect EU workers from hazardous exposures to asbestos within national infrastructures are considered with examples given of successful strategies. Personal Injury Update A feature by Vijay Ganapathy in the Solicitors Journal of February 26, 2013, highlighted the potential for bringing asbestos claims under the Occupier's Liability Act 1957 for non-employees. The author cited the verdict in the case of Baker v Tate & Lyle Plc [2012] which upheld the right of the claimant, a lagger employed by Climax Insulation, to sue the occupier of the London Tate & Lyle (T&L) factory to which he had been sent by his employer. The judgment agreed that under the:
Mr Baker instructed Harminder Bains after he had been told by another law firm he had no case, as his employer was insolvent and his employer's insurer could not be traced. Ms. Bains decided to sue the Defendant as Occupier but the Defendant disputed liability on the ground that it never employed the Claimant and challenged that it owed him a duty as occupier. However, after a contested hearing, judgment was given. According to Ms. Bains: “This case opens the door to many other Claimants to successfully pursue a claim against the factory or place of work to which the employer had sent the employee.” Events Action Mesothelioma Day 2013 Activities to mark the sixth annual Action Mesothelioma Day will take place throughout the United Kingdom on July 5, 2013. For information on local events, see the website of Mesothelioma UK.34 ___________ 1 The estimate of 60,000+ deaths is based on HSE mesothelioma and asbestosis data for Great Britain: 2 Lord Freud, May 20, 2013: Second reading of Mesothelioma Bill. Hansard source (Citation: HL Deb, 20 May 2013, c687) http://www.theyworkforyou.com/lords/?gid=2013-05-20a.687.4 3 Delgermaa V, Takahashi K. et al. Global mesothelioma deaths reported to the World Health Organization between 1994 and 2008. Bulletin World Health Organization 2011. 4 Anecdotal evidence supports the view that the majority of people with mesothelioma bring legal actions; the DWP estimates that 14% of mesothelioma patients do not lodge civil claims against former employers. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/198388/mesothelioma-payment-scheme-impact-assessment.pdf 5 DWP. Mesothelioma Payment Scheme – Impact Assessment. May 7, 2013. 6 Public consultation was begun under the Labor Government in February 2010 under a proposal entitled: Accessing Compensation: Supporting people who need to trace Employers' Liability Insurance. 7 Dugan E. Exclusive: Victims blame insurers for 'insulting' asbestos payouts. May 5, 2013. 8 Queen's speech. May 8, 2013. 9 Mesothelioma Bill [HL] 2013-14 10 Should any provisions of this Bill relate to devolved matters, the consent of the Scottish Parliament and Northern Ireland Assembly will be sought. 11 DWP. Mesothelioma Payment Scheme – Impact Assessment. May 7, 2013. 12 McEwan S. Employers' liability: mesothelioma fund to drive rates. January 25, 2013. 13 Queen announces support for asbestos victims. May 8, 2013. 14 Asbestos Victims Support Groups Forum UK. The Mesothelioma Bill – Briefing for Peers. 15 Thompsons' Solicitors. Mesothelioma Bill. May 2013. 16 An online petition “The 2013 Mesothelioma Bill needs to be changed” addressed to Lord Freud had received 800+ endorsement by June 5, 2013. 17 UCATT. Government in pocket of insurance industry. May 8, 2013. 18 http://www.publications.parliament.uk/pa/ld/ldordpap.htm#minproc 19 Booker, C. There's money in asbestos. Ask a lawyer. June 1, 2013. 20 Early day motion 180: Employers' Liability Scheme – Asbestos. June 4, 2013. 21 Committee on Carcinogenicity Statement on the relative vulnerability of children to asbestos compared to adults. June 7, 2013. 22 Minutes CoC meeting. July 12, 2012. Contemporaneous notes by Michael Lees. 23Education Select Committee hearing on Asbestos in Schools March 13, 2013, Q13. E-mail: Professor Peto to Michael Lees. May 1, 2013. 24 Minutes DfE Asbestos Steering Group. September 24, 2012. 25 Education Select Committee hearing on Asbestos in Schools. March 13, 2013, Q56. 26 See JUAC letter to School Minister. May 8, 2013. 27 Education Select Committee hearing on Asbestos in Schools. March 13, 2013, Q53. 28 Education questions. Annette Brooke OBE MP/The Minister of State for Schools David Laws MP T7 (152105). April 22, 2013. 29 Interview with Senior Master Whitaker. April 11, 2013. 30 Preferred court for issuing asbestos cases. Ail PI Focus Vol 23 Issue 2, March 2013. 31 Recovery of Medical Costs for Asbestos Diseases (Wales) Bill 32 Mason T. Asbestos NHS treatment cost recovery bill is postponed. June 3, 2013. 33 The long and winding road to an asbestos free work place. ISBN 978 90 5727 106 9. 34 Mesothelioma UK website: http://www.mesothelioma.uk.com/ ___________ Compiled by Laurie Kazan-Allen |