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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.

Operation Stack – a story of inept governance

For those not affected by Operation Stack – the stacking of lorries on the M20 when there are problems on the cross Channel route, it might merely make for some interesting television pictures and as no one dies so surely the people of Kent will get by and it will soon be forgotten.

A quick perusal of Wikipedia shows that the first Operation Stack occurred in 1988. It has been a regular feature ever since, so basically 27 years of no progress. There have been some failed attempts to play around with how the Kent motorways operate when there are cross Channel problems, and there have been some questionable unfulfilled plans to concrete over many acres of Kent to create vast lorry parks, but ultimately no genuine progress has been made since the very first Operation Stack.

Transport in the bigger picture of things in the UK generally comes way down government priorities, and is not something that is seen as losing a General Election. Because of the long term failure to address the problem we are now seeing sticking plaster plans put forward as the chaos Stack has caused this summer drags on. So Manston Airport and Ebbsfleet Station Car Park are being rented as lorry parks, both of questionable merit and potentially creating massive problems in the Manston and Ebbsfleet areas.

So is there a solution? Avoiding the issues of what leads to Stack, perhaps there is not a perfect solution, but notions of building in Kent vast lorry parks seem laughable. What is important to appreciate is that in the last few decades there has been a huge increase in lorry traffic moving through Kent. Today vast convoys of Eastern European lorries are a common sight on Kent motorways, something 30 years ago which simply did not occur.

We should ask ourselves where is it that these vast lorry convoys are going to? Kent is just the first stage of the UK journey for the vast majority of these continental lorries. The M20 and M2 motorways both help to feed traffic into the London orbital motorway, the M25, a motorway most drivers consider a journey from hell given the vast quantities of traffic on it for much of the day, with many M25 journeys of the stop-start nature, with generally plenty of stop involved!

Anyone travelling from Kent onto the M25 in the mornings would witness the familiar sight of the huge number of lorries that have come across from Europe overnight. Whilst removal of these lorries would not guarantee a totally free-flowing M25, it would certainly make for a far less arduous journey.

Why, when the motorways are overstretched, is it that these vast convoys of continental lorries which are heading for destinations outside Kent are not put onto the railway network, and taken to central points across the country, close to their actual destinations? When it is known that an Operation Stack situation may be necessary, large numbers of lorries can simply be held at the central marshalling points across the country. The result would be less chaos in Kent, but looking at the wider picture, on a daily basis less pollution, and less motorway congestion. But then for a government there comes the question of who would pay for the construction of the necessary infrastructure – if its not a vote loser or gainer have they the courage to undertake such a project? We hear much from government about the importance of facilitating economic growth. Our road and rail network as has so often been said are key arteries in the country’s communication network, but as Operation Stack moves towards middle age it can be seen as a sign of inept long term governance of these key networks.

A final point to ponder – I said no one dies when Operation Stack takes place. Anyone who has witnessed the long queues of traffic on the narrow approach road to the William Harvey Hospital in Ashford due to Operation Stack, might question whether this is actually true, with there being a severe risk that emergency response vehicles are going to get caught in the localised traffic chaos, with peoples lives imperilled as a consequence. Time to act I think.

The return of the manual typewriter?

Many former secretaries, especially those suffering from repetitive strain injury, may be astounded to learn of the possibility of a comeback for the manual typewriter. The Daily Telegraph this week published three pictures of so-called hipsters using manual typewriters in public.

Could this be a comeback for a machine that was swept away by a digital electronic word processing revolution?
Whilst it may appear ‘cool hipsterish’ to be seen tapping away at a manual typewriter, even small portable typewriters are lets face it a nuisance to carry around. One of the major problems with the old style typewriter in comparison to the modern word processing software, is that when you make an error, you have to resort to tipex or tipex paper to go back over the mistake, and this tends to leave your nice looking script a little messy, unless that has as well become trendy.

Last year the Daily Telegraph on this same hipster theme, claimed that the hip kids had re-launched the manual typewriter. In their piece, reporters Olivia Goldhill and Helena Kealey, also mentioned that the Russian Federal Protective Service had ordered 20 manual typewriters, apparently reflecting the widespread concern that today’s networked computers are just unable to keep data secure.

I wonder if it will become hip to also touch type and give our the two index fingers a break? ASDF JKL

New Mesothelioma Research Petition Launched

Following the end of the petition I set up a year ago on the government e-petition website, I have launched a new mesothelioma research petition that is calling on the government to put the money it is saving under the Mesothelioma Act directly into mesothelioma research.

Please sign the petition and pass the details on to everybody you know. Let’s beat the 3175 signatures we got under the previous petition and make sure this money is used for saving lives.

https://you.38degrees.org.uk/petitions/mesothelioma-research

2015 and the fight for hope and justice for mesothelioma victims goes on

As the clock strikes midnight on December 31st most people will be looking to the New Year to provide fresh optimism in their lives, hoping for a better year than the one that has just passed. For mesothelioma campaigners the hope will be that greater justice for victims is achieved and there is progress in the treatments available for this accursed disease. But campaigners know that the fight must go on to achieve these goals, with prominent existing issues and no doubt fresh issues emerging needing to be vigorously fought.

Research and its funding has been a central issue throughout 2014. Whilst there has been progress in getting a higher profile for mesothelioma research and increasing the possibility for research projects to be undertaken, there remains the fact that there is no guarantee of sustainable long term research funding. So this issue will remain at the top of the agenda.

Much discussion on research took place as the Mesothelioma Bill was going through Parliament this year. In the debates on what became the Mesothelioma Act, the Government in seeking to prevent any additional research funds levy being introduced into the scheme that would be funded by the insurance industry, continually emphasised that a 3% levy was all that insurers could afford on the gross premiums for employers liability insurance without insurers having to increase premiums, and the figure of 3% was what would be levied. It has emerged recently that the Government are now promising that the levy will be only 2.2%. The likely reason, although they have yet to confirm this, is that because the number of claims under the scheme has been less than expected, 2.2% is all that is needed to cover the claims made on the basis that each claim will only receive 80% of what a full claim would normally receive. Originally the Government sought to hold the figure at 75% before a re-evaluation of the admin costs revealed that 80% was achievable. Given that the Government had agreed a levy figure of 3% of gross premiums with the insurance industry, there is no justification whatsoever to reduce the figure now to 2.2%. It seems likely that at 3% claimants could now perhaps receive the full 100% value of their claim instead of 80%.

2015 will also undoubtedly see a number of mesothelioma and other asbestos related cases heard by the courts. One especially prominent case – Coventry v Lawrence, will be heard in early February. This case to be heard by the Supreme Court could possibly become a landmark judgment in English legal history, but is in fact not directly about mesothelioma at all despite its potential to have major implications for mesothelioma actions.

Coventry v Lawrence is primarily about noise nuisance created by speedway races held at a stadium in Suffolk, but it has thrown up an issue of potentially far greater legal magnitude than merely that of nuisance which concerns whether the legal costs incurred by the losing party were a violation of their Article 6 right under the European Convention on Human Rights and affected their right to a fair trial. A seven strong Supreme Court panel (normally only five judges sit, so the additional two highlight the significance of the case) will hear the case which the prominent legal commentator, Kerry Underwood, has suggested could make the outcome of the May UK General Election almost pointless from the perspective of the economic options that may as a consequence of the case be available to the incoming Government.

So why has this case the potential to be a landmark judgment in English legal history and be so devastating to the Government and detrimental to mesothelioma claimants?

The case was brought by the claimant alleging the noise nuisance using the old no-win, no-fee system (Conditional Fee Agreement), the funding system created by the Access to Justice Act 1999. I say old, because the system has now been replaced by new arrangements created under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). The no-win, no-fee system meant that if a claimant lost their case they would not be liable to pay the legal costs. They would not have to pay their lawyers costs, and the defendants legal costs were taken care of by an insurance policy (ATE insurance) that had been take out. If the claimant were successful in their action however, the defendant was potentially liable for the legal costs of the claimants lawyers plus an up to 100% success fee based on such costs, and the ATE premium. From the High Court hearing of the Coventry case, the costs faced by the defendant from the claimants side alone were said to be of the order of £640,000; £400,000 of which related to the success fee and ATE premium. It is these legal costs relating to the success fee and ATE premium which will provide the particular focus of the February hearing in the Supreme Court.

The Supreme Court have already heard an appeal from the decision of the Court of Appeal in this case, deciding in favour of the claimant as regards the noise issue, but re-sitting in February in order to hear the Government’s position as regards the possible violation of Article 6. Lord Neuberger in the Supreme Court’s initial hearing voiced his concerns over the level of costs, given that the claimants home was worth in the region of £300,000 and the noise nuisance was put at around £74000.

The issue of the validity of the No win, No fee system in light of the European Convention on Human Rights is not totally new. Back in 2004 Naomi Campbell brought an action against the Mirror Group Newspapers alleging infringement of her privacy. Her claim was brought using a conditional fee agreement. She was successful in her action, although being awarded a small level of damages worth £3500, her legal costs amounting to over £1 million, a third of which related to success fees. Mirror Group Newspapers faced with having to pay Campbell’s costs as well as their own commenced a legal action in the European Court of Human Rights arguing that the scale of such costs amounted to an infringement of their Article 10 (Freedom of Expression) rights in that they would be more cautious in publishing stories in an environment of draconian success fee legal costs. In 2011 the European Court agreed with them that in this instance the success fee costs did infringe their Article 10 rights. This case can be seen as a major driver in the reforms introduced by LASPO.

If the Supreme Court were to find a violation of Article 6 in the Coventry case, there is the possibility of a flood of litigation relating to the 14 years the conditional fee system was in place, with the potential for the Government to face an untold level of compensation that could dramatically impact on state finances.

So what are the implications of an Article 6 violation finding for mesothelioma claimants? Following an amendment to the LASPO Bill, which was forced through against Government wishes, mesothelioma claims remain under the conditional fee agreement system until the Government conduct an appropriate review of the implications of the LASPO system for mesothelioma actions. The Government did recently seek to claim that a review had been carried out and as a consequence of that ‘review’ mesothelioma actions would soon be brought within the LASPO system. However, in a judicial review of this decision in the High Court recently, Mr Justice William Davis ruled the review inadequate and therefore illegal, thus requiring the Government to carryout a full review as required by section 48 of LASPO.

But if the no-win, no-fee system is found by the Supreme Court to violate Article 6, then clearly this would leave current and future mesothelioma legal actions in an invidious position. One question is whether the system per se is seen as violating Article 6, or instead it is the scale of the success fee which is the problem, and hence lower level success fees as are provided for in early settlement cases would not be seen as violating the Article. However, a powerful argument is that by providing a lower success fee to ensure early settlement thus deterring full hearing of the case in court due to the potential rise of the success fee to 100%, this itself is a barrier to a right to a fair trial.

The Coalition Government, headed by the Conservatives, are clearly keen on bringing mesothelioma actions into the LASPO system, and the Coventry case could be the lever by which it might be achieved. The Asbestos Victims Support Group Forum will be making legal representations in the Coventry case in February.

Asbestos research e-petition hits 2500

The e-petition calling on the government to fund research into asbestos related diseases has reached 2500 signatures. There is still plenty of time for the petition so please do add your signature.

Money is beginning to find its way into mesothelioma research projects in the UK but as Lord Alton recently pointed out at the Merseyside Asbestos Victims Support Group (MAVSG) Annual Conference in Liverpool, there is no guarantee that funding will not disappear as quickly as it arrives. Mesothelioma research projects are in open competition for funding with all other medical research projects, so with the pot of money fixed, many worthy projects miss out. Lord Alton is planning to again seek to raise an amendment to the Mesothelioma Act that would introduce a levy on the Mesothelioma Act Scheme to ensure sustainable long term research funds are available for mesothelioma research. The Labour Party have also stated that they would seek to introduce a statutory basis for research funding if they are elected to government in May. Both Lord Alton’s and the Labour Party proposal’s would involve the insurance industry funding part if not all of the research. James Dalton, the head of the ABI, who whilst also presenting at the MASVG Conference, made some extremely caustic remarks about the role of what he saw as claimant lawyers feathering their own nests leading to hugely increased civil litigation costs, and he made clear that for him the bottom line will be what would be the cost to insurers of any levy. Anything considered unacceptable to them is likely to be met with a legal challenge. Speaking to me at Liverpool, Dalton actually claimed that the savings to government from the Mesothelioma Act scheme have now risen from just over £50 million to £70 million. Whether this new number is truly accurate is open to question, but it is clear that the ABI will play hardball on the research issue.

Memories and the proliferation of perfectly recorded imagery

You know that feeling when you wake up with a thought that is interesting, but it has no clear answer. Well this is my saturday morning thought.

Events from the past are stored to varying degrees in our brains. Some we might believe we have perfect memory of, others very fragmented and cloudy. Sometimes we have photographs that help us remember in a more clear way, sometimes diaries. But until recently moving imagery of events in our lives have been extremely sparsely available. And those that we might have, have tended to be somewhat grainy through the deterioration in the original film, and rarely is audio available.

Thus we tend to have a memory of people and past events that are unlikely to match how those events and people seemed to us at that actual time. It is often said of course that time is a great healer, and I suppose with the passing of time in many instances the fragmented memory available to us provides us in many situations with fond memories and a longing for a past time perhaps. Although it must be said if our past memories are of conflict, war, starvation, illness, poverty, then this is unlikely to be the case.

So our past may be constructed by fragmented memories that can be to an extent enhanced by photographs, diairies, grainy film footage, and perhaps music and news of the time. But it remains very much of the past – and the grainy footage, music etc. ensures that it is for us the past.

But now of course, as never before in human history has so much recording – in perfect format – both audio and visual, taken place. We can see (not a pun) with Google Glass, the potential to record vast quantities of our daily lives. And the likelihood is that in the near future such recording mechanisms will become interned within our bodies, so 24/7 recording may take place. And such recording may go past just the sensory perceptions of sight and hearing, to also include touch and smell.

What are the implications of this for us? No longer will we have to rely on faded memory, or old photographs. We will have the perfect recording of the people we daily encounter, their actions, movements, voices. I am sure many sociologists, psychologists, anthropologists, and whoever else, have already started asking such a question.

Obviously, we may choose not to review the past. But potentially gone will be that hazy past that many of us long for. Perhaps with perfect recall, our longing may increase for a distant time. Whether time travel will ever become a reality who knows, but it could be envisaged that we may via the exploitation of our recorded past be able to embed ourselves in that past, but in doing so not live events as they occurred at that time. So of course with that possibility we open up other questions that we may ask, but I will leave it for another morning’s contemplation.