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| ISSN 1470-8108 | Issue 98 | Summer 2015 |
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Contents:
1. Summer 2015: Asbestos Heroes and Villains 1. Summer 2015: Asbestos Heroes and Villains As summer 2015 began, it seemed that not a day went by without a major story illustrating the multi-faceted nature of the UK’s asbestos challenge. Throughout the month of June, features detailing the contamination in schools, the Houses of Parliament and Buckingham Palace were circulating via local and national media with questions being asked in Parliament.1 As usual, the stock government response downplayed the health risks with Sir Paul Beresford reassuring MPs on June 9 that: “Steps will also be taken to eradicate the asbestos in the trunking [of the House of Commons] by the end of 2015, but in the meantime we are content with this authoritative advice that there is no reason to stop using the Chamber, or the adjacent offices and spaces.”2 In stark contrast to the politician’s facile comments, was footage aired a few days later on the BBC’s Victoria Derbyshire morning show which considered the human aspect of the asbestos epidemic. Mesothelioma sufferers Jenny Darby, David Martin and Paul Cowley – who was diagnosed with asbestos cancer in his mid-30s – explained the heart-breaking consequences of hazardous exposures in schools for themselves and their families.3 The next day (June 10), the GMB union seconded demands by the Trades Union Congress for mandatory removal of all asbestos from public buildings.4 Emphasizing the persistent nature of the threat posed by asbestos to UK citizens was the circulation over the summer months of information documenting:
The consequences of the country’s asbestos legacy were made manifest by data released in July and August by the Health and Safety Executive (HSE) and Office of National Statistics (ONS):
The human repercussions of the national asbestos legacy are reflected by the size of the caseload of the specialist “asbestos disease court” at the Royal Courts of Justice. According to a presentation made by Master Eastman on September 16, 2015, this London-based fast-track system is on track to handle 16% more asbestos cases in 2015 (1,250) than it did in 2014 (1,074). Such statistics provide official confirmation of what has been known for years by asbestos victims’ support groups: despite the fact that asbestos was banned in Britain in 1999, thousands of people are still contracting deadly diseases and hazardous exposures continue to pose a potent threat to the population. A presentation made on June 24, 2015 by John Flanagan, of the Asbestos Victims Support Groups Forum UK and the Merseyside Asbestos Victims Support Group, to an EU conference entitled “Freeing Europe Safely from Asbestos,”10 highlighted examples of recent incidents at a disused Liverpool Hospital and the town hall of Waltham Forest Council during which the health of workers and members of the public had been endangered. Concluding his presentation, Mr. Flanagan showed a video of the late Andrew Burns, who died in his thirties from the asbestos cancer, mesothelioma. In the mid-1980s when Mr. Burns had worked on the refurbishment of large industrial sites, asbestos exposures were a daily occurrence. Twenty years later, symptoms led to medical concerns; after tests over a period of months, mesothelioma was diagnosed. The clarity of his words, his youth and sincerity brought the conference to a standstill.11 Unfortunately, there are many people in the same situation as Andrew Burns throughout the UK, the country with the highest age-adjusted mesothelioma mortality in the world. On July 3, 2015, victims’ groups, campaigning bodies and cancer charities marked the tenth national Action Mesothelioma Day (AMD2015) at public rallies, conferences, information sessions and memorial services. It was, as John Flanagan remarked, a day to “come together as a community of asbestos victims, family members and campaigners to show the public face of this national disgrace.”12 It did not go unnoticed that news of a major government U-turn on the legal rights of mesothelioma victims was made public on AMD2015.13 The administrative court order published on July 3 was a landmark victory for the Asbestos Victims Support Groups Forum UK (the Forum) and mesothelioma sufferers Ian Doughty and Carole Sloper – and another defeat for Lord Chancellor and Secretary of State for Justice Michael Gove. At issue was the schedule of court fees introduced by the Ministry of Justice on March 9, 2015 which cast in jeopardy the ability and inclination of asbestos victims to institute personal injury proceedings. Under the new cost regime, for claims valued at £200,000, such as are many asbestos claims, there was a 660% rise in court fees from £1,315 to £10,000. The inequity which would have resulted from these prohibitive fee increases led to the successful legal challenge. Commenting on the collapse of the Government’s case three weeks before the scheduled hearing date, Forum spokesman Anthony Whitston said: “Yet again, dying mesothelioma sufferers who have very limited financial resources have had to take court action to get justice. In this case they should never have had to launch legal action to stop the Government charging £10,000 in court costs to claim compensation for the criminal negligence of employers, often Government as employer, who continued to expose them to asbestos decades after it was known to cause cancer.”14 On July 22 2015, another victory was achieved by the Forum, one of several interveners, in the case of Coventry and Others (Respondents) v Lawrence and Another (Appellants).15 Although this case concerned a claim in nuisance by property owners, there were ramifications which could have impacted on the ability of asbestos victims to seek redress for their injuries by transferring the liability for success fees and premiums for After-the-Event (ATE) insurance premiums – which are components of Conditional Fee Agreements (also known as No-Win-No-Fee) – from negligent defendants to claimants. By a majority of 5:2, the Supreme Court ordered the Respondents to pay these costs and upheld the Forum’s complaint that “there are restrictions on access to justice inherent in the LASPO [Legal Aid, Sentencing and Punishment of Offenders Act 2012] scheme which replaced the AJA [Access to Justice Act 1999] scheme.” The Supreme Court’s ruling was welcomed by the Forum which said: “If Claimants in mesothelioma cases were made liable for additional liabilities such as success fees and ATE premiums, the numbers who pursued claims for personal injury would have declined dramatically. This would have resulted in families being at a financial disadvantage and could mean their spouse not only losing a partner but also seeing their income slashed. We believe this would have been a double injustice.”16 There is no doubt that the high visibility given to the national epidemic of asbestos-related diseases by the activities of the Forum has made a major impact on the legal and political climate in which decisions are made that affect the injured. The Forum has worked closely with civil society partners in the trade unions and campaigning bodies to keep asbestos issues high on the public agenda. Following discoveries in July 2015 of asbestos in children’s crayons imported to the U.S., a press release was issued by the Forum, the Joint Union Asbestos Committee and the International Ban Asbestos Secretariat that called for action by local authorities, government agencies and market surveillance bodies to: “assure people that these products are not being sold here and [to] confirm the measures being taken to monitor imports from China and other countries to ensure that no products containing asbestos reach this country.”17 Attempts to clarify current import surveillance procedures with the Home Office, the Department for Business, Innovation and Skills, Trading Standards, the HSE Compliance Team and other government agencies have, to date, proved unenlightening. 2. The Pleural Plaques Controversy Amongst jurisdictions in the United Kingdom, there has been a diverse response to the epidemic causing 5,000+ asbestos-related deaths per year. Access to medical care can vary from postcode to postcode while legal rights for people with the same disease in UK countries differ. A good case in point is the situation of pleural plaque sufferers. Until the ruling handed down on October 17, 2007 by the House of Lords in the case commonly referred to as Rothwell v. Chemical & Insulating Co. Ltd.,18 obtaining compensation for pleural plaques was more or less routine throughout the UK: from 1984-2005, County Court judgments awarding full and final compensation for pleural plaques ranged from £15,000-£20,000.19 With one fell swoop, this precedent was overturned and claimants were denied up to £25 million/year or £1.4 billion overall by a much-criticized verdict described as: “an absolute scandal,” “unjust,” and “perverse.” While Scotland20 and Northern Ireland21 took steps to restore the right of redress, England and Wales did not. Revisiting the 41-page Rothwell judgment this week was informative. The Law Lords’ ruling was premised on the “knowledge” that in and of themselves pleural plaques did not constitute an injury. In the leading speech Lord Hoffman ruled that as “proof of damage is an essential element in a claim in negligence,” compensation for “symptomless plaques” was unwarranted. The other Judges echoed his opinion: Lord Hope: “No action lies for a wrong which has not resulted in some element of loss, injury or damage… on their own, the pleural plaques did not amount to an injury, or a disease, which is actionable... It is a claim which has no value at all.” Lord Scott: “Asymptomatic pleural plaques do not constitute damage… the law of tort is not concerned with trivia.” Lord Rodger: “the plaques are not an actionable injury… the law treats them as a condition that is not serious enough to require its intervention.” Lord Mance: “the pleural plaques did not by themselves constitute or involve injury and damage sufficient to enable an action to lie in tort…” Research findings reported in a 2014 peer-reviewed paper entitled: “A systematic review of the association between pleural plaques and changes in lung function,” confirmed that the judges’ categorization of this condition as “asymptomatic” and/or “symptomless” was erroneous. “The presence of pleural plaques is associated,” the scientists wrote “with a small, but statistically significant mean difference in FVC [forced vital capacity] and FEV1 [forced expiratory volume in the first second] in comparison to asbestos-exposed individuals without plaques or other abnormalities. From a public health perspective, small group mean decrements in lung function coupled with an increased rate of decline in lung function of the exposed population may be consequential.”22 In a clarification by the authors which appeared online on July 22, 2015, they explained: “We found statistically significant 2–4% decrements in lung function in people exposed to asbestos with pleural plaques relative to asbestos-exposed people without abnormalities.”23 Clearly, pleural plaques can and do impact on lung capacity and as such “involve injury and damage.” While the situation for Scottish pleural plaques victims is preferable to that for their English and Welsh counterparts, there are shortcomings as outlined in a new paper by Stirling University’s Occupational and Environmental Health Research Group. This briefing was discussed at a meeting in the Scottish Parliament on September 8, 2015 attended by politicians, trade unionists, asbestos victims’ advocates and campaigners.24 The focus of the session was the flaws of the existing regime whereby insurance firms are “buying off future compensation claims” for pleural plaques for £5,000-£9,000. In return for a one-off payment, individuals at high risk of developing asbestos cancer are relinquishing the right to bring personal injury claims if they do.25 Recommendations to “resolve negative impacts on claimants and their families” including a “stand alone” pleural plaques payment which has no bearing on future legal actions were considered. Developments Scottish Court Upholds Victim’s Rights On July 24, 2015 Lord Uist of the Court of Sessions issued judgment in a case brought by David Boyd against three defendants over personal injuries sustained as a result of occupational asbestos exposure. After reaching an extra judicial settlement which allowed Mr. Boyd to return to court should he contract diffuse pleural thickening, lung cancer or mesothelioma, one of the defendants sought the right to demand proof of liability should this occur. The judge ruled that an offer by a defendant to settle a case by way of a payment of provisional damages carried with it an admission of liability.26 Robert Nolan and the Asbestos Lobby In September 2015, lawyers for U.S. asbestos defendants unsuccessfully tried to exclude evidence documenting ties to the asbestos industry of their expert witness Robert Nolan; stating that reviewing the information substantiating Nolan’s links to the International Chrysotile Association (ICA) would: “(1) necessitate undue consumption of time, (2) cause undue prejudice, (3) confuse the issues and (4) mislead the jury.” The ICA paid Nolan for work during trips to Malaysia in 2015 to convince the government that a national asbestos ban was unwarranted.27 Thanking Michael Lees On September 7, 2015 scores of friends, colleagues and family members gathered in central London at the headquarters of the National Union of Teachers to express their appreciation of the work of Michael Lees, the UK’s first and foremost asbestos in schools campaigner, and to wish him a long and happy retirement. Michael was an “accidental activist” whose involvement in the asbestos in schools campaign began after his schoolteacher wife died of the asbestos cancer, mesothelioma. His work revolutionized the UK’s asbestos dialogue and uncovered a national disgrace – more than 75% of UK schools contain asbestos.28 Rochdale’s Asbestos Controversy Lives On On September 16, 2015, Rochdale Town Council approved plans for an air monitoring program around the former site of the Turner Brothers Asbestos plant, which was, in its heyday, the world’s largest facility for asbestos manufacturing. In an interview with the BBC, Council Officer Andy Glover said the Council was working in partnership with the property owner to reassure local people that there was no airborne risk. In a report submitted to Rochdale Township Committee on September 16, 2015, Glover confirmed that “The full cost of this exercise will be borne by Rochdale Council.” Disparaging the scheme as a public relations exercise, a spokesman for the Save Spodden Valley campaign said that the land was a “toxic blight” which required an “unbiased arbiter” to protect Rochdale citizens from hazardous exposures.29 Literature Two papers published at the end of June 2015 detailed the impact of occupational asbestos exposures on cohorts in Belgium and Poland. Enduring health effects of asbestos use in Belgian industries: a record-linked cohort study of cause-specific mortality (2001-2009)30 highlighted the increase in mesothelioma and oral cancer while Predictors of Lung Cancer Among Former Asbestos-Exposed Workers reported “strong evidence that the lung cancer risk is associated with asbestos exposure and it increases with increasing exposure.”31 Research published in July 2015 documented an elevated incidence of several types of cancer amongst a cohort of 4,427 asbestos-exposed former shipbreaking workers from Taiwan. The authors of the paper Cancer Attributable to Asbestos Exposure in Shipbreaking Workers: A Matched-Cohort Study confirmed the: “increased incidence of overall cancer, esophagus cancer, and trachea, bronchus, and lung cancer which was associated with the level of exposure to asbestos among shipbreaking workers,” and urged that a surveillance program be set up to monitor the health of at-risk workers and facilitate early detection and treatment of disease. 32 Future Events On October 2, 2015, Mesothelioma UK will hold its 10th Patient & Carer Day in Stratford upon Avon. This is a free event open to mesothelioma and other asbestos sufferers, families and friends. Subjects which will be addressed include clinical mesothelioma trials; updates on palliative care and symptom control; assistance with obtaining benefits; asbestos awareness training; fundraising initiatives; global developments.33
___________ 1 Lyons J, Shipman T. Asbestos scare may force out MPs. June 7, 2015. 2 Parliament: Asbestos: Written question – 1032. June 9, 2015. 3 Victoria Derbyshire Show. BBC 2. June 17, 2015. 4 TUC backs campaign for asbestos removal bill. June 18, 2015. 5 Environment Agency. Asbestos audit final briefing – May 2015. 6 Jones, A. Take lead on asbestos in schools, Welsh government told. July 30, 2015. 7 Stonehenge contaminated with deadly asbestos after contractors accidentally dump soil. August 1, 2015. 8 HSE Press Release. Two companies fined for serious breaches in the removal of asbestos. August 19, 2015. 9 HSE releases annual workplace fatalities. July 1, 2015. 10 Kazan-Allen L. Conference Report: Freeing Europe Safely from Asbestos. September 1, 2015. 11 The footage shown featuring Andrew Burns was taken from a video produced by the Asbestos Victims Support Groups Forum UK entitled: Mesothelioma – The Human Face of an Asbestos Epidemic. 12 Kazan-Allen L. Action Mesothelioma Day 2015. July 9, 2015. 13 Administrative Court Order on the application of the Asbestos Victims Support Groups Forum UK vs. the Lord Chancellor. July 3, 2015. 14 The Asbestos Victims Support Groups Forum. Government gives way again over court costs in face of asbestos victims’ legal challenge. July 4, 2015. 15 Supreme Court decision. Coventry and others (Respondents) v Lawrence and another (Appellants) [2015] UKSC 50. July 22, 2015. 16 Supreme Court’s Judgment on Coventry v Lawrence. July 22, 2015. 17 Press Release. STOP Playing with Cancer. July 27, 2015. 18 Officially case [2007] UKHL 39 on appeal from [2006] EWCA Civ 27 was Johnston v. NEI International Combustion Ltd., Rothwell v. Chemical and Insulating Company Ltd., Topping v. Benchtown Ltd., Grieves v. F T Everard & Sons and others. 19 Kazan-Allen L. The End of UK Compensation for Pleural Plaques? November 2007. 20 Supreme Court confirms that pleural plaques are actionable in Scotland. October 27, 2011. 21 Legislation due on asbestos-related pleural plaques. December 5, 2011. 22 Kopylev, L et al. A systematic review of the association between pleural plaques and changes in lung function. December 12, 2014. 23 Kopylev, L et al. Authors’ response: A systematic review of the association between pleural plaques and changes in lung function. July 22, 2015. 24 Gorman T, McCourt J, Watterson A. Pleural plaques: obtaining social justice and equity in addressing compensation issues in Scotland. September 8, 2015. 25 Patersen, S. Stop firms buying off asbestos compensation claims says MSP. September 9, 2015. 26 Judgment in David Boyd v Gates Ltd., Scottish Agricultural Industries Ltd., National Grid PLC. 27 Ruff K. Lawyers launch court action to hide scientist’s work for asbestos lobby organisation. September 7, 2015. http://www.rightoncanada.ca/?p=3164 28 Kazan-Allen L. Thank you, Michael. September 8, 2015. 29 Missed opportunity for robust asbestos testing? September 16, 2015 30 Van den Borre L, Deboosere P. Enduring health effects of asbestos use in Belgian industries: a record-linked cohort study of cause-specific mortality (2001-2009). June 24, 2015. 31 Swiatkowska B, et al. Predictors of Lung Cancer Among Former Asbestos-Exposed Workers. June 22, 2015. 32 Wu WT, et al. Cancer Attributable to Asbestos Exposure in Shipbreaking Workers: A Matched-Cohort Study. July 20, 2015. 33 Mesothelioma UK. 10th Patient & Carer Day. ___________ Compiled by Laurie Kazan-Allen |