Category Archives: Asbestos

Action Mesothelioma Day – The 5000 deaths that go unreported

Every year the first friday of July see’s Action Mesothelioma Day in the UK, where events take place across the country to both raise awareness of the scourge of asbestos and to commemorate and remember those who have succumbed to the individious diseases caused by exposure to asbestos.

Raising awareness of asbestos and the issues surrounding the legacy of 100 years or so of its widespread use in this country has always been challenging for victims and campaigners. This year perhaps more than ever before, with Brexit and the continuing fall-out politically and economically of the referendum, and England’s latest footballing disaster holding the nation’s attention, Action Mesothelioma Day and its important messages will at best receive the odd cursory line here and there in the media. But those messages of life and death have an importance deserving of the nation’s attention. With around 2,500 people dying this year from mesothelioma, and a further 2,500 succumbing to other asbestos related diseases, the paucity of attention given to Action Mesothelioma Day is shameful.

With such human carnage, we need also look to see how our Government has responded to the plight of the innocent victims of asbestos, and the protection of its citizens from exposure to asbestos that remains in situ across the country, especially in our schools. This Government has been strong on concerning words, but arguably limited and even contradictory in its actions.

On a positive note this year, the Government announced that it will use £5 million from the fines it is levying on banks that has been earmarked as part of the Military Covenant, to fund a mesothelioma research centre for the next three to four years. Whilst asbestos campaigners have long argued that there needs to be meaningful research funds made available for asbestos related diseases, it is perhaps instructive that this move by the Government only came about through links to the Military Covenant. Although the funding is to be welcomed, it is in reality inadequate given that it is £5 million over three to four years, arguably representing a minimalist approach, but of course the Government will undoubtedly seek to refer to it time and again to show how they have listened and taken action.

A further positive move, again linked to the Military Covenant, was the announcement that ex-military personnel who have contracted mesothelioma from exposure to asbestos whilst in the armed services and who until now were not eligible for lump sum compensation, will now be entitled to £140,000. It is disappointing however that this compensation has so far not been made available to those ex-military personnel who have suffered other asbestos related diseases.

Thus the Government can refer to two positive moves it has made recently whenever the topic of asbestos is raised with them. But what you will not hear about are instances where the Government actually seek to act to the detriment of asbestos victims and their families. It is bad enough their inaction, such as not appropriately addressing asbestos in schools, but when they positively act in a detrimental way, this needs highlighting to ensure hypocritical claims of concern that they continue to espouse are placed into the appropriate context. It is highly symbolic that in the very week of Action Mesothelioma Day this year we have been provided with such an example. Cyril Hollow, worked for 20 years as a decorator in the Royal Navy dockyard at Devonport. He was negligently exposed to asbestos by his employer, the Government, and died in 2010 of lung cancer. His family brought a legal action against his employer, the Department for Communities and Local Government, and in Exeter County Court in 2014 following the admittance of negligence by the Government the central issue was that of contributory negligence, and how much the damages to be awarded should be reduced due to Mr Hollow’s smoking habit. The Government argued the damages should be reduced by between 85 and 90%. In the event the judge decided that a fair and equitable reduction should be 30% and damages of £80,000 were awarded instead of over £100,000 that would have been awarded without the contributory negligence.

A major issue has been how asbestos and smoking interact in causing lung cancer, and because of the lack of research into asbestos diseases, much remains unknown as to the precise interaction, with experts widely disagreeing as a consequence. The 30% reduction due to Mr Hollow’s contributory negligence was in fact a far higher reduction than in two previous asbestos lung cancer cases where smoking was an issue. In the case of Badger v MOD (2005) a reduction of 20% was made, and in Shortell v BICAL (2008) the reduction was 15%. In Mr Hollow’s case the Government were however not content with the 30% reduction, and in the week of Action Mesothelioma Day, Lord Justice Tomlinson in the Court of Appeal has granted a request by the Government for a full appeal to be heard on the issue of the level of contributory negligence.

Whilst Mr Hollow may not have been a member of the armed services, he served his country by working in the Devonport dockyard, and yet the Government wish to decimate the compensation they have to pay for his death. The country may not hear much about Action Mesothelioma Day, but those attending the various events will have had in their thoughts Mr Hollow and the thousands of other victims of asbestos.

Sloper v Lloyds Bank – a salutory example of the difficulties faced by some mesothelioma victims

The decision in Sloper v Lloyds Bank this week is a stark reminder of the type of challenges faced by some mesothelioma victims when they have not worked directly with asbestos and are seeking to bring a successful legal action.

Carole Sloper was only 54 years old when she was diagnosed with mesothelioma in November 2014. Her claim against her former employer, Lloyds Bank, centred around her belief that she was exposed to asbestos whilst working at two Lloyds Bank branches on the Isle of Wight over 30 years ago. She believed that in the two branches where she had worked the banks had suspended ceilings which had asbestos tiles and that during maintenance when tiles were removed and when strip lights were changed she was exposed to asbestos dust being disturbed.

The judge, Mr Justice Spencer, found there to be serious doubts over the reliability of the evidence given by Mrs Sloper and her witnesses, due to contradictions he considered there to be in that evidence and that defence witnesses and documentary evidence produced pointed to there not being suspended ceilings in the branches and there being no asbestos tiles present. Ultimately he considered that Mrs Sloper had failed to show on the balance of probabilities that there was either a suspended ceiling in the branches or that they had asbestos tiles.

During submissions, defence barrister, David Platt QC, referred the judge to comments made by Lord Pentland, in deciding the Scottish mesothelioma case, Prescott v The University of St Andrews, earlier in the year. Lord Pentland had stated, The process of attempting to remember events in the distant past is an inherently fallible one; it is a process that is highly susceptible to error and inaccuracy. The Prescott case as with the Sloper case concerned whether a mesothelioma victim who had not worked directly with asbestos would be able to show that they had been negligently exposed to asbestos sufficient for liability to be established. Robert Prescott was a lecturer at the University of St Andrews, when over 35 years ago he believed he had been negligently exposed whilst renovation work was being carried out on the University library. The judge concluded that Mr Prescott’s recollection of events was unreliable and alongside inconsistencies in his evidence led to a finding that he had not proved that he was exposed in the words of the judge to dangerous quantities of asbestos.

It is without doubt that mesothelioma victims, especially those who have not worked with asbestos, are severely hampered by having to try to remember events 30-40 years previously, which will lead to the almost inevitable inaccuracies and potential contradictions in the evidence they provide. Many such victims will have little awareness of asbestos and where it may have been present in the places they worked.

Perhaps there was no asbestos present in the places Mrs Sloper worked, we will never know. But we do know that she has mesothelioma. She is another victim of the invidious nature of asbestos. It might have been that she was exposed at school, but of course it is even less likely that as children we would be able to 30-40 years later remember the necessary details that might lead to a successful legal action. Clearly Mrs Sloper was not appropriately protected as she was exposed to asbestos at some point in her life, and she is paying the ultimate price for that failure.

Again it must be asked how can we be sure that in 30-40 years time there will not be victims of asbestos who have been exposed in situations where the asbestos in situ has been supposedly safely managed by being sealed in?

Sad death of 48 year old former GCHQ employee again highlights the UK’s mesothelioma failings

The recently reported sad death of Jayne Eustace this year from mesothelioma once again shows how we as a nation continue to fail those who have been exposed to asbestos.

Mrs Eustace worked for GCHQ, the Government spy centre, for 7 years, where it is believed she was negligently exposed to asbestos, although like so many mesothelioma victims not working directly with asbestos. A sample from her lung found her to have had 4200 asbestos fibres per gram of lung tissue.

It is perverse that GCHQ which is tasked with protecting the nation could not protect their employees including Mrs Eustace from asbestos exposure at their premises; and of course once diagnosed with mesothelioma, whilst I have no doubt she received the best care available, the simple fact that we as a nation have failed for decades to invest in medical research into mesothelioma meant we failed Mrs Eustace a second time – utterly disgraceful.

A call for a permanent memorial for Mesothelioma victims

Last Friday, July 3rd, was the annual Action Mesothelioma Day, when around the country events were held to remember those that had succumbed to mesothelioma. The events were all marked by a symbolic releasing of doves. At the same time as these events were taking place across the country, Prime Minister David Cameron had instigated the holding of a minutes silence to remember those that were murdered in the Tunisian terror attack. It is sad to reflect that Mr Cameron failed to refer to Action Mesothelioma Day and the 2538 people who died in the UK from mesothelioma in 2013 (the latest available statistics), and the likely 2500 who died in 2014 and all those who will die this year. These victims did not ask to be exposed to asbestos, they were just going about their lives, as tradespeople, teachers, doctors, housewives, school children, but were not protected from the insidious dust that would ultimately take their lives from them.

Mr Cameron has announced there will be two permanent memorials for the Tunisian victims, and he was quick to emphasise that they would be paid for by the fines levied on banks for their indiscretions. Why was it felt needed to emphasise that it would be paid for in this way? Unfortunately politics is at work here, even at the time of tragedy juvenile point scoring was taking place. Why did Cameron fail to mention Action Mesothelioma Day and mesothelioma victims? Simply because there was no political mileage in it for him and the government. The media did not carry pictures of 2500 mesothelioma victims or even mention the level of human carnage that continues to take place. These silent victims deserve to be recognised.

I call for there to be a permanent memorial for the tens of thousands of mesothelioma victims, who our governments have failed to protect.

Flawed information on mesothelioma research funding provided by the government

Mesothelioma research funding remained on the UK Parliamentary radar right up until the dissolving of Parliament on March 30th. An attempt by Mike Kane MP to amend the Mesothelioma Act via a Private Members Bill in order to introduce a research funding levy came to nothing when all outstanding Parliamentary business was terminated with the dissolving of Parliament.

An answer to a Parliamentary written question posed by Lord Wigley on what public sector funding there has been for mesothelioma research over the last 10 years, resulted in a curious response from the government on March 25th. In the time available to respond to the question the government stated that it had only been possible to go back over the previous six years, and in respect to funding provided by the Medical Research Council, the main medical research funding body which allocates over £840 million annually for medical research purposes, over £10 million had been awarded to mesothelioma related research. A link to the government answer can be found here.

I say the response is curious, because in a response to a Parliamentary question posed by Lord Alton in February on successful mesothelioma research funding applications made to the Medical Research Council in the last 10 years, showed only four successful applications were made for a total of around £1.75 million. A massive difference of some £8.25 million. A link to Lord Alton’s question can be found here.

But sadly even the response to Lord Alton’s question failed to give the true picture of actual dedicated mesothelioma research funds awarded by the Medical Research Council. Three of the four successful applications were for research fellowships, and two of these fellowships were jointly funded by the Mick Knighton Trust who provided £150,000. The fourth of the successful research awards was a grant of close to £1 million in 2013/14, and I am very grateful to Professor Paul Elliott who informed me that this award was not specific to mesothelioma research, but rather was made to help fund the MRC-PHE Centre for Environment and Health which provides core support for research and training in environment and health related matters.

So rather than the £10 million of research funding, dedicated mesothelioma research funding from the MRC over the last 10 years stands at about £600,000. It might be suggested that the failure to provide accurate figures on mesothelioma research funding rather epitomises the Cinderella status of mesothelioma in general. Let us hope that a new Parliament brings about a sea change in regards to both its status and levels of research funding.

Government back track on interpretation of Diffuse Mesothelioma Scheme levy

The government today backtracked on the precise interpretation of the Diffuse Mesothelioma Scheme levy on the insurance industry that provides compensation for mesothelioma victims where employers liability insurance policies cannot be found.

Following the lower than anticipated take up level under the Scheme, the government yesterday announced that future claims under the Scheme would be paid at 100% of the average compensation level received by mesothelioma victims generally, an uplift from the previous 80% figure. In a debate in the House of Commons on the Scheme today, the DWP Minister, Mark Harper claimed it was not possible for those who have already been paid the 80% under the Scheme to receive a backdated payment to provide them with 100% compensation. The Minister claimed this was standard practice in government that backdated payments are not made. This is frankly laughable as the Scheme has been underway for less than a year with only a few hundred claims under it so far, so there would in reality be no administrative burden making such back dated payments problematic. In the debate it was pointed out that claimants under the Scheme have their social security payments that are linked to them having mesothelioma clawed back at the rate of 100% when they receive a compensation payment under the Scheme, and as such for those who had received an 80% payment this was a great injustice. The Minister made no comment on this point.

The Minister claimed the levy on insurers was a ‘Cap and not a target’. The levy according to the government during the Parliamentary debate on the Mesothelioma Act that brought in the Scheme last year, was to be fixed at 3% of the gross written premiums for employers liability insurance. This was a figure accepted by the insurance industry in their deal with the government that would fund the Scheme and would not lead to them passing on the costs to employers via increased premiums. The government made clear at the time of the debate on the Mesothelioma Act that 3% was 3% and was a fixed figure. Now the government in an outrageous example of unethical backtracking, have sought to claim that the 3% figure was a cap and not a target figure, so in essence meaning that if payments under the Scheme fall short of the cap figure of 3% of gross written premiums, the insurance industry will only be required to pay the level of compensation necessary to fund the Scheme and not the full 3% figure that the government originally claimed would be paid.

Today’s debate brought by Labour MP, Steve Rotheram, also sought to question the Minister on the issue of research funding, which it is argued should at least in part be paid for by the levy on insurers, and is now clearly affordable under the original 3% levy interpetation. Unfortunately the set time for the debate ended without any meaningful research funding answers being provided by the Government Minister, Mark Harper.

Insurers mesothelioma research donations to be welcomed, but should only be seen as a down payment

Whilst any fresh money that is made available for research into mesothelioma is to be welcomed, today’s announcement of the donations by insurers, Zurich and Aviva, to the British Lung Foundation needs to be put into context.

The BLF are to be congratulated in obtaining funds from these two companies after the protracted and clearly difficult discussions they have had with insurers.

The donations in total are £1 million over 2 years. In other words £250,000 per year for each company. This in reality is petty cash for these corporations. Aviva for instance made in 2013, £2.8 billion in pre tax profits. In the same year they donated on what they call Community Investment schemes (in other words charitable donations) £6.2 million. So £250,000 is clearly not an extraordinary sum for a yearly donation. Furthermore, these donations are eligible to be set against corporation tax, which currently stands at 21%, so the actual cash cost to these companies comes down to under £200,000 for each of them per year.

These companies may have an eye on the General Election and the possible Labour Party plan if elected to amend the Mesothelioma Act to introduce a further levy on insurers to provide for mesothelioma research funds. If Labour are elected and they were to be swayed by such donations, this would be tantamount to a sell out of mesothelioma victims. Labour, if elected in May, should go ahead with their plan, but they also need to include the savings the Government are making under the Mesothelioma Act, to boost the overall mesothelioma research funding pot of money, in order to provide for long term meaningful and sustainable research funds.