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| ISSN 1470-8108 | Issue 89 | Winter 2012-13 |
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Contents:
1. Merseyside Asbestos Victims Support Group: A Force for Change 1. Merseyside Asbestos Victims Support Group: A Force for Change On March 31 1993, John Major had been Prime Minister for three and a half years, the British number one record was Young at Heart and a pint of milk delivered to your doorstep cost 36 pence. Technology at that time was pretty much as it had been for years: TV viewers had four channels to watch, most telephone calls were made on BT landlines and the internet revolution had yet to begin. The transmission of information took place as it had done for decades via: local grapevines, face-to-face meetings, leaflets and traditional media. The world wide web, although it existed, remained the preserve of a handful of techies and the invention of social media platforms such as Facebook, Twitter, MySpace was still years away. Although things are very different now to what they were in 1993, there is one strand, however, which links together March 31 of both years: the Liverpool and District Victims of Asbestos Support Group, now known as the Merseyside Asbestos Victims Support Group (MAVSG). On this day twenty years ago a small group of local health and safety campaigners met at the Hardman Street office of the Trade Union Community Resource Centre to formalize discussions on Liverpool's asbestos tragedy; present were Billy Packer, Charlie Kavanagh, John Flanagan, Gerry Stanley, John Ellis, John Dunleavy, Richard Jones and others. Following up on decisions taken at public meetings earlier in the year, they resolved to establish a Liverpool-based group for asbestos victims, one of the first groups to be formed in England. Its purpose was to reach out to sufferers, provide practical support, help navigate bureaucratic pathways and lobby for changes to medical and benefits systems which were in the 1990s unresponsive at best and obstructive at worst.1 From the very beginning, support for this project was expressed by local Members of Parliament including Eddie Loyden, representing Liverpool Garston, and Peter Kilfoyle, from Liverpool Walton whose brother died from mesothelioma. The impact of decades of asbestos use in Merseyside had produced a predictable outcome: an elevated incidence of asbestosis and asbestos cancer amongst former dockers, construction workers, shipbuilders, laggers and factory workers. In 1993, the majority of sufferers seen by MAVSG were suffering from asbestosis; people like Gerry Stanley who recalled: “When I went into the Royal, the doctor said you have asbestosis and that was it. I got on the bus and went home.” Medical consultants, GPs and nurses, the first point of contact for most of the injured, were unaware of the benefits and help which were available. It took years of outreach work, meetings, discussions and information sessions to create the integrated approach needed to improve the experience of people diagnosed with an asbestos-related injury. Many of MAVSG's clients were occupationally exposed to asbestos by the same employers: Cammell Laird Shipbuilders, Pilkington Glass, Bibby's (now Beoco), Courtaulds, Plessey's, Lever Brothers, Cadbury's and Tate & Lyle. It seems strange to see the names of food manufacturers on this list but in the 1980s the Northwest of England produced more manufactured food than anywhere else in the country. While assembly line workers at these plants were not necessarily at high-risk of asbestos exposure, the mechanics and fitters in these facilities most definitely were. Also amongst the earliest of MAVSG's clients were people who had worked in the dockside warehouses where bag recycling took place; most of those employed in this industrial sector were women and many of the hessian sacks they processed had been used for shipping asbestos. Even as MAVSG was finding its feet, discussions were ongoing about the formation of another group in an industrial center 40 miles away: Manchester. As bad as things were in Liverpool, they could be expected to be even worse in Manchester considering the huge volume of asbestos cargo transited through its docks and the large number of people employed at the Trafford Park factory of the UK “Asbestos Giant”: Turner & Newall. In 1994 the Greater Manchester Asbestos Victims Support Group (GMAVSG) was formed. Given the common struggle of asbestos sufferers in Liverpool and Manchester, it was logical that the two groups would collaborate. That they did so enthusiastically and effectively was of utmost importance not only for their constituents but also for sufferers all over the country who would come to benefit from their efforts. In an interview with the British Asbestos Newsletter, Manchester-based Tony Whitston, Chair of the Asbestos Victims Support Groups Forum UK, said: “Within a year of its formation, the Merseyside group, under the talented and indefatigable leadership of its full time worker, John Flanagan, drawing on the experience of Scottish support groups, had set up a respected organisation dedicated to the support of asbestos victims. Despite an increase in its workload, the Merseyside group found time to assist the development of the Greater Manchester group, whose growth and success owes so much to the generous support of the Merseyside group during its early years. However, the influence of the Merseyside group stretched much further than Manchester. MAVSG played a key role in setting up the All Party Parliamentary Occupational Health and Safety Asbestos Sub-Group. Peter Kilfoyle, MP for Walton, Liverpool, the Honorary Secretary of the Merseyside group, took MAVSG's proposal for an Asbestos Sub-Group to Parliamentary colleagues on the All Party Parliamentary Group on Occupational Health and Safety. MAVSG collaborated with asbestos support groups and others to put forward an agenda of work for the Sub-Group, aimed at eradicating the many injustices asbestos victims face. Much of that work has been successful and we owe a debt of gratitude to the Merseyside group for playing such a crucial role in ensuring that the concerns of asbestos victims continue to be heard in Parliament. Collaborative work, exemplified by the Merseyside group, has been the cornerstone of the national Asbestos Victims Support Groups Forum, and its role in the work of the Forum is indispensable, as is the Merseyside sense of humour and gritty determination to defend the interests of asbestos victims over two decades of dedicated work.”2 As Tony Whitston so rightly points out, MAVSG staff have acted both as innovators and facilitators in improving the plight of British victims. They have also taken the lead in representing the national asbestos victims' community at meetings overseas. The attendance of John Flanagan at high-profile gatherings, including the Global Asbestos Congress 2000 (Brazil), Asbestos Issues in Poland Conference 2004 (the first international asbestos conference to be held in Poland), the Global Asbestos Congress 2004 (Japan), and the Asian Asbestos Conference in Hong Kong (2009), was a visual manifestation of the solidarity of British groups with sufferers the world over. After twenty years, it is right to take note of the accomplishments of the Merseyside group; there have been battles which have been won and battles which have been lost but whatever the eventual outcome over the last two decades the people from this group, including John Flanagan, Sam Kloezeman, Ryan Larkin and so many wonderful volunteers and supporters, have engaged in the battles that needed to be fought. Long-time health and safety campaigner Rory O'Neill speaks for us all when he says: “Nationwide, asbestos victims and their families get a raw deal. There are a few stellar exceptions, where the pain of disease and loss is eased by expert and sympathetic advice and support. In Merseyside, MAVSG has for two decades provided a model that should be replicated nationwide. MAVSG has been crucial in supporting the local community and in securing improved rights and treatment for asbestos victims nationwide. It has played a critical role in reducing the deadly toll of asbestos.” Ladies and gentlemen of MAVSG, we salute you. 2. Mesothelioma Claims: into the Portal and Beyond By Alan Care3 The Ministry of Justice (MoJ) are consulting by Spring 2013 about the introduction of portal access for mesothelioma claims; it is agreed by all claimant personal injury lawyers to be wholly inappropriate.4 The reason that portal access is inappropriate is that up until now the portal has been for low value minor RTA claims. Is this government seriously contemplating putting complex claims from dying mesothelioma claimants into such an ill-fit system? Current personal injury cases for mesothelioma sufferers or their families (if deceased), are primarily processed via the High Court, Queen's Bench Division's Mesothelioma Fast Track [MFT] system, an unbridled success which is not only being taken up by other courts nationwide but is also being used as a template for other areas of litigation in the Royal Courts of Justice. Senior Master S. Whitaker and other Masters have specialised in asbestos claims and developed the system to be the efficient success it is today.5 A Defendant must “show cause” at an early Case Management Conference hearing why judgment should not be entered. Once liability is dealt with the parties in 98% of claims negotiate a settlement and rarely is the court asked to assess the damages. Only if there are irreconcilable differences is this necessary. If the Defendant denies liability then the first “show cause” hearing will determine if a full trial will have to take place. One of the reasons the MFT has been so successful in obtaining judgments and damages for claimants is indeed that specialist Masters are dealing with these claims. Claims that used to take years now mostly take months. Claims commence with a letter before action. A particular mesothelioma protocol letter is not necessary as long as the Defendant is provided with full details concerning the claim and a “cards on the table” 6 not “cards up the sleeve” approach to litigation is taken. At present the MFT system is sufficiently flexible to enable the three-month waiting period usually required for a Defendant to admit liability (before proceedings are issued) to be shortened and proceedings issued and expedited in the MFT. Proceedings may be issued virtually straight away. The Defendant can be given the Claimant statement and other supporting evidence as to liability; proof from medical records of a diagnosis of mesothelioma and income documents by way of early disclosure. From my experience this leads to a very early settlement; the current record is 29 days from instruction to settlement. However, cynical insurers have been known to put up blocks. The portal system proceeds on the basis that one size fits all. Mesothelioma claims are idiosyncratic as some claimants have months to live and others only weeks. Some claims involve the consideration of complicated company documents and business accounts, others do not. In some cases the claimant is likely to die before trial and his evidence needs to be recorded within weeks. The Master can adapt the pace of a mesothelioma claim to address these issues and ensure, so far as possible, that claimants have the peace of mind of seeing justice done and compensation paid before they die. A perfect example that underscores the adaptability and flexibility of the MFT system is the issue of a widower's “Lost Years” income; if not received by the widower whilst alive his family cannot claim this substantial sum after his death. A portal system simply would not work as it is proceedings that resolve the Lost Years issue. In mesothelioma claims delay is the enemy of justice and anything which may slow down the current fast track procedure is to be avoided if at all possible. One of the reasons the present system works so well is because the Master controls the pace of the litigation right from the start, not the parties. The speed with which the government is trying to impose civil justice reforms is, in my 25 years of trying asbestos cases, virtually unprecedented. It is hard to disagree with Karl Tonks, President of the Association of Personal Injury Lawyers, who on February 12, 2013, categorized the Government's behaviour as “irrational and indiscriminate.” “The rights of people injured at work through no fault of their own should not,” he said “be interfered with lightly. The whole system of regulations and laws relating to health and safety, the functioning of the Health and Safety Executive, the criminal law relating to employer's responsibilities and compulsory insurance against claims for compensation are part of, to adopt Sir Rupert's language, an interlocking package. To interfere with one crucial aspect of that in this way is wrong.”7 As a litigator who specializes in asbestos disease claims, my interest in what the future holds is, of course, professional. But as with other professionals who have had experience with asbestos victims, I have a very personal interest in what will transpire. Indeed it was this interest which back in 2002 motivated me to begin discussions with QBD staff at the RCJ, including the Senior Master, defendants and claimants' solicitors, about the need for a streamlined system to avoid delays in delivering mesothelioma compensation to living claimants; the result of these deliberations was the MFT system. In 2010, Senior Master Whitaker spoke proudly of the accomplishments of the MFT system when he told an interviewer: “Looking back at what we have achieved with the asbestos disease list at the RCJ, I have to say that I think that this is the best thing I have done in my professional career as a lawyer. I am proud of the remarkable professionalism of both claimants' and defendants' solicitors who have collaborated with the court to change both the pervading culture and the judicial procedures so that asbestos claimants can receive due process in a more timely fashion.”8 As we stand on the precipice, we must do all that we can to encourage the Government to rethink its proposals. We cannot allow so much progress to be overturned at the whim of a Government more concerned with satisfying its financial backers than in delivering justice to dying asbestos victims. The findings and conclusions of a recent paper about Italy's asbestos legacy make uncomfortable reading. Author Dr. Stefano Silvestri states: “Establishing an asbestos ban is not sufficient to achieve primary prevention. Twenty years after the Italian asbestos ban, the residual presence of asbestos-containing materials, estimated to be 80 percent of the quantity existing in 1992, may still be the cause for negative effects to the health of workers and the general population. The so-called 'asbestos way-out' at this rate of clearing up, roughly 1 percent per year, is too slow, and [a] new policy to re-discuss the entire process is needed.” It is widely believed that 6 million tonnes of asbestos were imported into the UK during the 20th century. We have no way of knowing how much of that fiber was shipped overseas, processed and exported, incorporated into the national infrastructure, dumped in the countryside or safely removed and disposed of according to legislation. It is safe to say, however, that much of what was used remains in place and constitutes a “cause for negative effects to the health of workers and the general population.” The February 4, 2013 edition of the BBC 1 Program Inside Out provided a salient reminder of the pervasive nature of Britain's asbestos contamination and the human as well as corporate hazards it poses. The facts as described in the documentary are these:
M&S, which “has taken this [BBC] programme extremely seriously,” was “disappointed” at the portrayal of the “regrettable incident in our Reading Store in 2006.”12 But, as Inside Out revealed, there was more to this story than just one store or one badly handled project. In an onscreen interview, health and safety manager William Wallace described his experience during refurbishment work at the company's flagship Marble Arch store in 1998. Cladding had been stripped with a sledgehammer, he said, and asbestos was “everywhere”: “There were minefields, asbestos minefields for the want of a better expression. You could not have guaranteed the safety of anybody, the workers, the staff, the customers: you could not have given a 100% guarantee that those people were safe.” Having observed what he believed to be multiple breaches of asbestos removal guidelines, Wallace wrote to the M&S Chairman Sir Richard Greenbury. There was a meeting with senior managers but the subsequent investigation, according to an M&S spokesman, found “no case whatsoever to say any member of staff or any member of the public was put at risk.”13 Indeed, no further action was taken regarding the allegations about the work carried out at the London store. Nevertheless M&S employees have contracted the asbestos-related cancer, mesothelioma; they include:
M&S is not the only retailer to have been prosecuted for asbestos infringements or to have paid compensation to individuals who contracted asbestos cancer from occupational exposure at their stores. Despite HSE statements about its intention to take “robust enforcement action” when organizations fail to “give contractors enough time and space within the store to carry out the [asbestos] works safely,” one has to ask who at the HSE is going to do this? With the HSE's shrinking financial resources and dwindling number of employees is it feasible that the neutered safety watchdog will make good on its threat. The Trades Union Congress (TUC) has serious concerns about the future of UK asbestos regulation. A statement received on February 13, 2013 from the TUC on this issue emphasized the need for “a strong inspection and enforcement regime to protect both workers and the public… the government's decision to stop the HSE making proactive inspections in many areas will make this much more difficult. The draft Local Government Code will also stop councils from inspecting premises proactively to check that asbestos is being properly managed. Overall this will make it much easier for employers to flaunt the law and the result will be more exposure and more deaths.”14 In Dr. Silvestri's paper referenced at the beginning of this article, he warns that unless urgent action is taken in Italy, “it is likely that the entire cleanup of ACM [asbestos-containing material] will not be finished until the end of this century.” Are we really prepared for another four generations of citizens to die from avoidable asbestos-related diseases? Developments Court of Appeal Decision On February 6, 2013, the Court of Appeal reversed a first instance verdict regarding the entitlement of an employer to full asbestos indemnity from an Employer's Liability insurer which issued cover for six out of twenty-seven years of a mesothelioma claimant's employment.15 The ruling in International Energy Group Ltd. v. Zurich Insurance Plc UK Branch [2013]16 is regarded as a “key decision because it sets out that a solvent insured can expect to be indemnified fully by its insurer, even though that insurer provided cover for a very short period of time compared to the whole exposure history.” Mesothelioma On February 6, 2013 Hansards reported the submission of a letter from the Director General of the Office for National Statistics to Lord Wigley in the daily account of the House of Lords proceedings. This letter was in reply to a question about the incidence of mesothelioma amongst school teachers in England. According to data received, 129 school teachers in England died from mesothelioma during the ten years between 2002 and 2011.17 Asbestos in Schools (AiS) Campaigner Michael Lees believes this figure is an underestimate as it does not include mesothelioma deaths amongst former teachers over 75 years old, and it is possible that as many, or perhaps more, die over this age. Teaching assistants, nursery nurses, school secretaries, caretakers, cleaners and cooks are also dying of mesothelioma, but the statistics are less comprehensive.18 Since 1980, figures produced by the AiS campaign record 386 mesothelioma deaths of school teachers and lecturers in Higher and Further Education in Britain. An answer to another Parliamentary question tabled by Lord Wigley is timetabled for February 26. The question asked is: how many former (1) teaching assistants, (2) nursery nurses, (3) school secretaries, (4) school caretakers, (5) school cleaners, and (6) school kitchen staff, in England have died of mesothelioma during the last ten years. Pleural Plaques Early Day Motion number 871 entitled Pleural Plaques and Access to Compensation was lodged on December 19, 2012; it stated “pleural plaques caused by negligent exposure to asbestos constitute actual harm” and called on the Government “to reassess it stance on access to compensation…”19 Asbestos Legislative Reforms In December 2012, The Recovery of Medical Costs for Asbestos Diseases (Wales) Bill was tabled by Mick Antoniw, a Member of the National Assembly for Wales.20 The aim of the private member's bill was to reclaim from negligent organizations £2 million pounds of annual costs for the treatment of Welsh patients suffering from asbestos-related diseases. The proposals are being opposed by insurance companies which claim that the financial burden of the reforms would impact on current policyholders. The Association of British Insurers has argued that the Welsh Assembly does not have the “competency” to modify the terms of insurance policies; the Forum of Insurance Lawyers (FIL) has warned that the legislation could be challenged under the European Convention of Human Rights.21 According to a legislative timetable “Stage 2 proceedings should be completed by 10 May 2013, subject to the general principles of the Bill being agreed by the Assembly.”22 Publications Pleural Plaques and the Risk of Pleural Mesothelioma, a paper written by 15 French experts, was published online on January 25, 2013 by the Journal of the National Cancer Institute. It concludes that what many asbestos victim support advocates have long alleged is correct: “The presence of pleural plaques may be an independent risk factor for pleural mesothelioma.”23 Detection of Mesothelioma Remains a Conundrum, a January 2013 online editorial by Robert Kratzke, highlights pioneering work being done in Western Australia to develop preventive strategies for populations at risk of developing asbestos-related diseases and suggests that using pleural plaques as a mesothelioma marker could enable early cancer diagnosis to occur.24 A paper published on January 17, 2013 entitled What is the survival after surgery for localized malignant pleural mesothelioma? on the website of Interactive Cardiovascular and Thoracic Surgery draws on an extensive review of published literature regarding the management of localized mesothelioma of the pleura (LMM). The British authors' findings suggest that “survival in LMM is longer than that generally quoted for the more common diffuse form of malignant mesothelioma.” This fact could influence treatment choices made by patients and their doctors which might include pleurectomy/decorticiation and adjuvant chemotherapy.25 A worldwide ban on asbestos production and use: some recent progress, but more still to be done was the title of an editorial published in the British Journal of Occupational and Environmental Medicine in January 2013. Acknowledging the consensus that exists regarding the human hazard of all forms of asbestos, author Malcolm Sims highlights the “poorly developed regulatory approach to asbestos and other workplace hazards in many newly industrialising countries.”26 Events Back to Basics Asbestos Litigation Conference On February 28, 2013, a CPD/APIL-accredited legal conference is being held in Liverpool. The conference – Asbestos Litigation - Back to Basics – is being organized by the Merseyside Asbestos Victims Support Group. Speakers include: Consulting Engineer Christopher Chambers, Barristers Andrew McDonald and Mark Chatterton, Consultant Respiratory Physician Dr. Chris Warburton, Solicitor Catherine Higgins and Occupational Therapist Clare Wilson. 27 2013 International Women's Day Event On March 9, 2013, a workshop on Asbestos and Women's Health is being held in Birmingham, organized by the West Midlands Hazards Trust and Asbestos Support West Midlands. The meeting, which will be addressed by two well-known speakers, is open to members of the public. It is being held at the Unison Birmingham Branch office in the McLaren Building and begins at 11 a.m. 28
___________ 1 Flanagan J, Whitston W. Asbestos Victims Support Groups in England. International Journal of Occupational Health, 2004;10;2:177-182. 2 Interview Tony Whitston, February 11, 2013. 3 Alan Care is a Senior Litigation Executive at Thomson Snell & Passmore, Tunbridge Wells, Kent and a Fellow of the Association of Personal Injury Lawyers. He can be reached by email at: alan.care@ts-p.co.uk. I would like to thank Roger Hiorns of 9 Gough Square for his assistance with this article. 4 McFall I. Mesothelioma Scheme not fit for purpose. Issue 88, British Asbestos Newsletter, 2012. 5 Three years on. The Mesothelioma Fast Track at the Royal Courts of Justice. 2005. The Journal of Personal Injury Law 2/5. 6 LJ Woolf Reforms (Civil Procedure Rules). 7 Karl Tonks Speech. February 12, 2013. 8 Kazan-Allen L. Judicial Innovation at the Royal Courts of Justice – Interview with Master Steven Whitaker. 2010. British Asbestos Newsletter. Issue 78; pages 11-14. 9 Marks and Spencer plc was found guilty of breaching section 2(1), relating to its own staff, and section 3(1), relating to members of the public and other workers, of the Health and Safety at Work etc. Act 1974. 10 Marks & Spencer 'warned over asbestos risk'. February 4, 2013. 11 Prior G. M&S hit with £1m asbestos fine for unsafe refurb work. Construction Enquirer, September 27, 2011. 12 Statement received from M&S on February 12, 2013 in email from Daniel Himsworth, Corporate PR Manager. 13 Marks & Spencer 'warned over asbestos risk'. February 4, 2013. 14 TUC Statement, February 13, 2013. 15Le Gouellec de Schwarz T, Roberto JM, Asbestos – England/Wales Court of Appeal Clarifies Employer's Liability Insurer's Obligations to Solvent Insured. February 8, 2013. 16 http://www.insurerereport.com/files/2013/02/WLDoc-13-2-08-11_46-AM.pdf 17 http://www.publications.parliament.uk/pa/ld201213/ldhansrd/text/ 18 www.asbestosexposureschools.co.uk 19 http://www.parliament.uk/edm/2012-13/871 20 The Recovery of Medical Costs for Asbestos Diseases (Wales) Bill, 21 NHS asbestos refund law opposed by insurance companies. January 16, 2013. 22 National Assembly for Wales. Report on the timetable for consideration of the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill. December 2012. 23 Pairon JC, Laurent F, et al. Pleural Plaques and the Risk of Pleural Mesothelioma. January 25, 2013. JNCI J Natl Cancer Inst. http://jnci.oxfordjournals.org/content/early/2013/01/24/jnci.djs513.abstract 24 Kratzke R, Detection of Mesothelioma Remains a Conundrum. January 25, 2013. JNCI J Natl Cancer Inst. 25 Gelvez-Zapataa SM, Gaffney D, et al. What is the survival after surgery for localized malignant pleural mesothelioma? Journal of Interactive Cardiovascular and Thoracic Surgery, Jan 17, 2013. 26 Sim M.R. A worldwide ban on asbestos production and use: some recent progress, but more still to be done. 2013. Journal of Occupational and Environmental Medicine volume 70: issue 1. 27 For more information on this event, please see: 28 For more information on this meeting, please see: http://ibasecretariat.org/iwd_asb_womens_health_uk_mar_2013.pdf ___________ Compiled by Laurie Kazan-Allen |