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|ISSN 1470-8108||Issue 93||Winter 2013-14|
By Laurie Kazan-Allen
For as long as I can remember I have known that a total of 6 million tonnes of asbestos was consumed in the UK. I thought it was worth checking up on the reference for this fact but could not find one. Enquiries I made suggested that the figure had been underestimated and that cumulative asbestos consumption had, in fact, been 7 million tonnes of which 2% was crocidolite, 8% amosite and 90% chrysotile.1 While no one has fully quantified the human impact that the extensive use of asbestos has had in the UK over the last 100+ years, during the first decade of the 21st century there were 22,471 deaths from mesothelioma,2 widely considered to be the signature cancer caused by exposure to asbestos.3 Over that period there was a 43% increase in the incidence of mesothelioma mortality. In 2011, the latest year for which Health and Safety Executive (HSE) data are available, the number of mesothelioma deaths was 2,291;4 it is predicted that the annual number is expected to continue to increase in future years before peaking towards the end of this decade.
In the past, mesothelioma was described by the HSE as a rare form of cancer;5 this is no longer the case. In a publication dated October, 2013, the HSE stated:
Mesothelioma is a formally rare form of cancer that principally affects the pleura (the external lining of the lung) and the peritoneum (the lining of the lower digestive tract)... Mesothelioma has a strong association with exposure to asbestos and current estimates suggest that around 85% of all male mesotheliomas are attributable to occupational exposures. Most deaths occurring now are a consequence of the long latency period (i.e. the time between initial exposure to asbestos and the manifestation of the disease) which is typically between 30 and 40 years.6
According to British researchers: UK mesothelioma mortality is the highest worldwide.7 This dubious distinction has been confirmed by World Health Organization statistics which reveal that 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.8 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 (17,062). Unfortunately, mesothelioma is just one of a number of fatal asbestos-related diseases. When mortality from asbestos-related cancers of the lung, larynx and ovary and asbestosis are factored into the equation, the true scale of the humanitarian catastrophe caused by exposure to asbestos in the UK begins to emerge.9 Annually, nearly three times as many Britons die from asbestos-related diseases as from road traffic accidents.10
It is hard to fathom how British society can be so inured to the suffering asbestos has caused that funding for research into treatments and possible cures for these diseases remains so low. This sad state of affairs was highlighted on January 16, 2014 by Lord Wills11 and Lord Avebury12 during a House of Lords debate on the Mesothelioma Bill. Lord Wills stated:
the Government need to act more vigorously to ensure that funding for research is put on an adequate and sustainable basis. There is no good reason for them not to do so I suggest that the single most important action they could take is to increase the sums of money available for research. It is hard to see how that would not work the Minister in the other place has said that to ask the insurance industry to pony up more funding would disrupt the exhaustively negotiated agreement which was the basis of the Mesothelioma Bill. Is that really the case? Quite apart from the continuing moral responsibility of the insurance industry as a whole the sum of money to significantly improve the research effort on a sustainable basis is a tiny fraction of the overall amounts involved and an even tinier fraction of the sums that insurers should have paid to sufferers over the years but have evaded doing so. For example, £3 million a year would double the amount currently donated by the private and voluntary sectors.
A shortage of funds is not something which troubles hired-gun scientists commissioned by asbestos stakeholders like Georgia-Pacific (U.S.),13 the Brazilian Chrysotile Institute, the International Chrysotile Association, Grupo Eternit and asbestos mining stakeholders from Russia, Kazakhstan and Brazil. The corruption of science is a tactic well-honed by Big Tobacco, the evil twin of the asbestos industry. Vested interests know the answers they want their scientists to find and it is therefore no surprise when they find them. The lack of disclosure and blurred practices characterizing litigation-driven research led the New York State Supreme Court Appellate Division to issue a unanimous plaintiff's verdict in a decision handed down on June 6, 2013 which questioned the legitimacy of scientific work that could have been in furtherance of a fraud.14 Amongst the authors of several articles commissioned by defendant Georgia-Pacific (GP) to defend lawsuits over the health effects of exposure to its asbestos-containing joint compound product was Edinburgh Professor Ken Donaldson. A thorough examination of Donaldson's professional relationship with GP was contained in the September 2013 issue of Hazards Magazine. The piece entitled: A Very Particular Crime cited correspondence, invoices and articles documenting the links between the professor and personnel tasked with defending GP from asbestos claims.15
Figures obtained this month (January 2014) from the United States Geological Survey estimated that the value of global asbestos mining output could be as much as $1.34 billion/year. With so much money at stake, producers are willing to be generous to professionals ready and willing to do their bidding. In the UK, defendants are also eager to pay those who are able to concoct new stratagems for avoiding asbestos liabilities. It is unfortunate that it is the negligent corporations which have created the national asbestos epidemic and their insurers who have the support of the coalition government. During negotiations on the Mesothelioma Bill, the government bent over backwards to keep the insurance industry sweet. The policy of cooperation with asbestos stakeholders is nothing new; for decades, successive administrations colluded with asbestos companies as a result of which measures to protect occupational and public health from the asbestos hazard were forestalled or watered down. While Italian courts have brought criminal proceedings against former asbestos company directors, owners or managers, this has never happened in the UK. In France, asbestos victims have pressed for the criminal prosecution of individuals formerly in charge of asbestos companies; a December 2013 ruling by the French Supreme Court has paved the way for a trial of asbestos executives to begin in 2014 or 2015. Also in December, a landmark ruling was handed down by the Osaka High Court, which held the Japanese government liable for asbestos-related diseases due to its failure to protect workers from harmful exposures. The Court doubled the compensation payments awarded to the 58 claimants by the lower court.16 Elsewhere, Italian and Brazilian asbestos victims' groups are pursuing legal and political action to have prestigious awards and honors bestowed upon the head of the Swiss Eternit Asbestos Group rescinded.17 In the UK, former asbestos bigwigs live out their retirement in comfort and surety that they will never stand in the dock like their European counterparts. Maybe it is time things changed in the UK.
By Tony Whitston, Chair of the Asbestos Victims' Support Groups Forum UK
The Mesothelioma Bill completed its passage in the House of Commons without amendment on January 7, 2014. The Government resisted even the most modest improvements to the Bill, and only a few Coalition MPs supported the two amendments put to the vote: a levy to fund mesothelioma research and an increase in payments to 80% of average compensation. Absent due to critical illness, tributes were paid to Paul Goggins MP (Lab) for the work he has done on behalf of mesothelioma sufferers, and who was to lead the debate on both these two cross-party amendments with Tracey Crouch MP (Con). Tragically, Paul Goggins died on the January 7, the very day his amendments were debated, leaving asbestos victims with one less champion of a cause he served so well.
The impeccable case for parity in law for protection of negligently injured workers with injured motorists who cannot trace an insurer18 ended with just one group of injured workers, mesothelioma sufferers, albeit the worst affected, receiving just 75% of the compensation they had waited so long for. MPs from all parties received briefings from The Asbestos Victims' Support Groups Forum UK (The Forum) and a Forum pamphlet with moving and powerful pleas for justice from mesothelioma sufferers and their families all to no avail. The reason so few Coalition MPs stood by a handful of their colleagues who responded to the plight of mesothelioma sufferers with humanity and a sense of justice is, in Will Hutton's words, Powerful lobbyists and fawning ministers corroding society. Behind closed doors, the insurance industry, large funders of the Conservative party, played the card, Burden on Business, which, for this Government trumps justice, fairness and decency.
But all is not yet lost. A start has been made, for which the Coalition Government has received a great deal of praise, and at last insurers will have to pay mesothelioma sufferers who cannot trace their insurers an average of £93,000 over the next 10 years. The payment scheme is to be reviewed in four years' time, and it may well be possible to increase payments up to the arbitrary 3% Gross Written Premium threshold and to pave the way for payments for the 50% of asbestos victims excluded from the current scheme. Given the powerful speeches from a dedicated and determined group of Opposition MPs, led in debate by the redoubtable Kate Green, it is more than possible that improvements may well be made by a different government. In the meantime, there is still work to do, scrutinising the regulations to the Bill and monitoring the payment scheme, which insurers are intent on administering.
The Mesothelioma Bill A Trojan Horse
In debate on Part 2 of the Legal Aid Sentencing and Punishment of Offenders Bill (LASPO), the House of Lords insisted on an amendment to exclude asbestos victims from paying legal costs associated with Conditional Fee Agreements (CFAs). Peers did not accept that the LASPO CFA reforms, including a 10% uplift in general damages, compensated for the payment of up to 25% of general damages in solicitors' success fees.
The Government compromised in the face of the Lords' insistence by granting a temporary exemption to mesothelioma sufferers from paying legal costs. Section 48, Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO 2012), suspends bringing into force Section 44, payment of solicitors success fees, and Section 46, payment of After the Event Insurance (ATE), pending a review of the effects of Sections 44 and 46 on mesothelioma claims and a report to the Lord Chancellor.
The Section 48 review was conducted within Part 4 of the Ministry of Justice consultation Reforming mesothelioma claims, which proposed two reforms: a mesothelioma pre-action protocol and fixed costs for mesothelioma cases. Consultees were asked in Part 4 if they agreed with the Government that Sections 44 and 46 should be brought into force in light of: the consultation reforms; the LASPO CFA reforms; the Mesothelioma Bill. In a ministerial statement on December 4, 2013 the Government announced that it was abandoning the consultation reforms, but would bring into force Sections 44 and 46, i.e. ending the mesothelioma exemption, and would confirm their decision in a report.
The Forum challenged the relevance of the Mesothelioma Bill to the review as it has nothing whatsoever to do with the Sections 44 and 46 which are solely concerned with civil claims for compensation. Eventually the Government conceded that this was correct, but went on to insist that the findings of the Section 48 were always intended to be synchronised with the implementation of the Mesothelioma Bill. What difference that makes is anyone's guess.
Other than the LASPO CFA reforms which were rejected by the Lords as a basis for imposing legal costs on mesothelioma sufferers, the only ground left for ending the mesothelioma exemption is the Mesothelioma Bill a Trojan Horse brought in under false pretences to attack the mesothelioma exemption, now useless and abandoned. The Forum has instigated a Judicial Review of the flawed S 48 review and the irrational justification for ending the mesothelioma exemption.
Most relevant, but unpalatable evidence for Government, is a Legal Ombudsman's report,19 saying that CFA agreements are not simple to understand, contain unclear terms and conditions, and that there is evidence of some lawyers failing to make clear the financial risks of CFA agreements and trying to pass on the risk to customers. This is precisely the situation the Lords feared and would not tolerate dying mesothelioma sufferers facing.
By Michael Lees, Asbestos in Schools Group
The Welsh Government has so far not accepted that they have overall responsibility for ensuring the safety of staff and pupils in their schools; instead they have abdicated that responsibility to the HSE. The Department for Education and Skills (DfES) in Wales stated: Asbestos is a non-devolved matter and responsibility for the subject lies with the Health and Safety Executive and not with Welsh Government.20 DfES Wales abdicates responsibility to the HSE, but the HSE have other, greater priorities than schools. Neither will take the lead, neither will accept the responsibility. The result is that the whole issue of asbestos in schools has been drifting with no-one in command.
In January 2014 Lord Wigley, the former leader of Plaid Cymru, tabled two House of Lord's written questions to establish the constitutional responsibilities in the above matters. The answers confirm that the Welsh Government is responsible for both the management of asbestos in schools and for developing policies for the control and management of asbestos in schools. HSE's role is for regulation and guidance.21 This is a very logical delineation of responsibilities. On January 21 the National Assembly of Wales' Petition Committee discussed these different interpretations of the devolution settlement and will now Seek a legal brief clarifying whose remit the issue falls within. 22 One must question why this critical area of responsibility was not clearly defined long ago.
The HSE role is to regulate, inspect and give advice, including advice to Ministers,23 not to make asbestos policy for schools. The Welsh Government is not unique, as the Department for Education (DfE) in England allowed HSE to lead until relatively recently when they finally accepted that they have overall responsibility for the protection of staff and pupils in schools from the dangers of asbestos. That acceptance was implicit when, following a meeting with the Prime Minister,24 DfE took the lead and in 2010 established the Asbestos Steering Group to improve asbestos management in schools. On recommendation from the Steering Group in 2011, DfE commissioned an assessment of the relative vulnerability of children to asbestos. In 2012 they published basic online asbestos awareness guidance for schools and in 2014 DfE will lead a formal review of their asbestos policy in schools.
Although they have overall responsibility, the Departments for Education in England, Wales and Scotland base their policies on advice from HSE. Despite overwhelming evidence to the contrary, HSE claim that the risks from asbestos in schools are very low. In November, a nursery school teacher, who is suffering from mesothelioma, met the Schools Minister, David Laws MP. The teacher very eloquently and bravely explained to the Minister how Government policies have failed to ensure that children and staff in schools are safe. She gave evidence that present Government policies are not working and fundamental policy changes have to be made.
The Minister assured her that if the evidence was that asbestos posed a risk to school staff and pupils then, regardless of cost, measures would be taken to ensure that schools were made safe. However, he stressed his policy is based on HSE advice, and that advice is that schools are safe, and staff and children are not at risk from asbestos in schools. This was despite the evidence of the teacher sitting in front of him, and the fact that increasing numbers of teachers are dying of mesothelioma. Also, former pupils are dying from their asbestos exposure at school. In March 2013, the Minister gave evidence to the Education Select Committee; evidence was also given by a leading epidemiologist that up to three hundred people a year could subsequently die because of their asbestos exposure as a child at school.25 Over a twenty year period that would equate to up to 6,000 people dying because they attended schools that contained asbestos most people would not consider that risk as very low. However, the Minister chooses to overlook such evidence.
The Minister concluded that on the evidence provided by the HSE he could not justify to the Treasury the need to spend large amounts of money on mitigating the effects of asbestos in schools.26 But the HSE's actions and advice are politically influenced and governed by the need to save the Government money in the short term, and to support and justify Ministerial policies that do that. In the long term, HSE advice will mean that schools will have the considerable ongoing expense of managing their asbestos and the cost of maintaining the deteriorating school stock will be greatly increased. So long as asbestos remains in schools there will always be the potential for staff and pupils to be exposed to asbestos. It cannot therefore be justified to claim that schools are safe and children and teachers are not at risk. The HSE provides the justification for the Government to maintain the status quo rather than addressing the very serious problem that is posed by asbestos in schools.
The Minister also acknowledged that he had decided to scrap the DfE Asbestos Steering Group the very group that is taking positive steps towards making schools safe from the dangers of asbestos. A Guardian article showed that both he and the Secretary of State for Education had taken the decision. The article was based on a leaked document which stated: "This is an emotive policy area and closing down the current stakeholder group would be controversial . We will need effective stakeholder management in closing down the steering group."27 At the meeting, the Minister reluctantly agreed to continue the Group no doubt because it had become politically embarrassing not to do so.
DfE has given assurances that the Steering Group would play an integral part in the review of asbestos policy. We must ensure that it does, so that the review is not only impartial but also seen to be impartial. We ask teachers, support staff, parents, doctors, asbestos consultants, solicitors and victims to provide evidence to the review so that the Government has no doubt of the true risks from asbestos in schools. For only if overwhelming evidence is presented to them will they realise that the scale of this problem can no longer be kept from the public. The Government must set in place clear lines of responsibility, adhere to their often stated policy of transparency and base their policy for asbestos in schools on all the evidence, and not just the evidence that justifies their current policies.
Revised Guidance on Managing and Controlling Asbestos
In December 2013, the Health and Safety Executive (HSE) revised its guidance on preventing hazardous occupational asbestos exposures.28 The new text, which consolidated two previously issued guidance documents (L127 and L143) into a revised Approved Code of Practice entitled Managing and working with asbestos also incorporates changes introduced in The Control of Asbestos Regulations 2012 (CAR 2012) regarding the notification of non-licensed work with asbestos and arrangements for employee medical examinations and record keeping.29
Death of MP Paul Goggins
On January 8, 2014, the death of Paul Goggins, MP for Wythenshawe and Sale East, Greater Manchester, was announced.30 Goggins, who had championed amendments to the Mesothelioma Bill proceeding through the House of Commons at the time of his death, had planned to speak during the debate. A statement issued by the Asbestos Victims Support Groups Forum UK said that the MP has been a true champion of asbestos victims whose plight he sympathised with his colleagues have now lost the most decent of Parliamentarians, we have lost a true friend 31
Exposure to chrysotile mining dust and digestive cancer mortality in a Chinese miner/miller cohort
A paper published on January 16, 2014 in the Journal of Occupational and Environmental Medicine detailed research using data collected from a cohort of 1,539 Chinese chrysotile asbestos miners and mill workers over 26 years which found a clear exposure-response relationship between asbestos dust exposure and mortality from stomach cancers The paper concluded that there was additional evidence for the association between exposure to chrysotile mining dust and excess mortality from digestive cancers, particularly stomach cancer. Excess mortality was also observed from oesophageal and liver cancers.32
UK Mesothelioma Charities
The work of the June Hancock Mesothelioma Research Fund and the Mick Knighton Mesothelioma Research Fund has been pivotal not only in helping to raise awareness but also in generating much-needed research funds; the groups have raised £2.5+ million for UK scientific studies on mesothelioma. Outreach projects with patients, families, victims' groups, trade unions, businesses and the scientific community have informed the national dialogue about this dreadful disease.33
Moustaches for Mesothelioma in March
UK mesothelioma charities are backing a new fund-raising effort the title of which is self-explanatory: Moustaches for Mesothelioma in March. Participants or supporters can grow a moustache or just cut out and stick on a fake one to raise awareness of Mesothelioma. Donations can be made online via VirginMoneyGiving or The Big Give. A sponsorship form can be obtained by emailing: email@example.com
Towards a Better Understanding of Mesothelioma
A free study day for mesothelioma patients, relatives, carers, friends and healthcare professionals is being held in Leeds on Friday, March 21, 2014. Guest speakers include lung cancer and mesothelioma specialist nurses, patients, researchers, legal professionals and a therapist. To register for this event reserve a place online at: https://emm.irwinmitchell.com/towards-a-better-understanding-of-mesothelioma-210314/BasicForm.aspx
Action Mesothelioma Day 2014
The UK's Action Mesothelioma Day will be held on Friday, July 4, 2014. As usual, a range of activities will take place including information sessions, church services, coffee mornings and public displays. More information will be available in due course on the website of Mesothelioma UK: http://www.mesothelioma.uk.com/
1 Email from Andrew Darnton, Statistics and Epidemiology Unit, Health & Safety Executive, June 25, 2013. Email from Robert Virta, United States Geological Survey, June 25, 2013.
2 Calculations based on HSE data for the ten years from 2000-2009 show that the number of mesothelioma deaths for this period was 20,111.
3 Victims' groups and campaigners believe that the government's figures underestimate the national incidence of mesothelioma fatalities.
4 Health and Safety Executive. Mesothelioma in Great Britain 2013. October 2013.
6 Health and Safety Executive. Mesothelioma in Great Britain 2013. October 2013.
8 Delgermaa V, Takahashi K. et al. Global mesothelioma deaths reported to the World Health Organization between 1994 and 2008. Bulletin World Health Organization 2011.http://www.who.int/bulletin/volumes/89/10/11-086678/en/
9 Asbestos Policies of Major International Organizations. Updated January 12, 2014.
10 Using data retrieved from HSE online resources, it was calculated that asbestos-related deaths in 2013 could reach 5,000 [this does not include deaths from cancers of the larynx or ovary]. In 2013, there were 1,730 road accident fatalities.
11 Hansards. House of Lords. January 16, 2014. Column GC245, 5.13 pm.
12 Hansards. House of Lords. January 16, 2014. Column GC246, 5.17 pm.
13 Two British researchers John Hoskins and Allen Gibbs were listed amongst eight authors of a controversial 2013 paper entitled: Health risk of chrysotile revisited. The paper acknowledged funding from industry groups: The International Chrysotile Association and The Canadian Chrysotile Association.
14 Weitz & Luxenberg P.C., Plaintiffs-Respondents, V Georgia-Pacific LLC, Defendant-Appellant. http://192.168.1.67/nyc_appellate_court_ruling_jun_6_2013.pdf
16 Osaka high court holds government responsible for workers' asbestos exposure. December 26, 2013.
17 Kazan-Allen L. Awards to Schmidheiny and Candidacy of Paolo Boffetta Attacked by Victims' Groups. January 20. 2014.
18 All-Party Parliamentary Group on Occupational Safety and Health: Employers' liability insurance the need for change, 2009.
20 Welsh Government Department for Education and Skills Letter 17 May 2013. Welsh Government Head of Environment and Public Health Branch. Health Protection Division Letter 23 Jul 13.
21 House of Lord's written answer Lord Wigley/ The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson) Column WA12 14th January 2014.
22 Welsh Government Petition Committee. Petition Asbestos in Schools P-04-522 The Right to Know. 21st January 2014. http://www.senedd.assemblywales.org/ieIssueDetails.aspx?IId=8437&Opt=3
23 DWP/HSE Framework 25 Jun 2009. http://www.hse.gov.uk/aboutus/howwework/management/dwphse.pdf
24 Meeting Prime Minister/AiS 13 May 2009.
25 Education Select Committee hearing Asbestos in Schools. Oral evidence Professor J. Peto. 13th March 2013. E-mail Professor Peto/Lees 1 May 2013
26 Meeting Minister of State for Schools 19th November 2013. Lees contemporaneous notes.
27 The Guardian Ministers couldn't possibly make cuts to school asbestos monitoring... could they? 28th October 2013. http://www.theguardian.com/education/2013/oct/28/dfe-plans-to-cut-asbestos-group
28 HSE Press Release. Revised Guidance on Managing and Controlling Asbestos. December 20, 2013.
32 Lin S, Wang X, Yano E, et al. Exposure to chrysotile mining dust and digestive cancer mortality in a Chinese miner/miller cohort. Occup Environ Med. January 16, 2014.
Compiled by Laurie Kazan-Allen