Tag Archives: Action Mesothelioma Day

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.

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.

Asbestos research funding – Taking stock

It is now two weeks since Action Mesothelioma Day so it is useful to take stock of where we are as regards asbestos research funding.

None of the three main political party leaders made any mention of Action Mesothelioma Day on the day, suggesting the lack of political importance they and their advisors place on mesothelioma and asbestos matters in general. With the run-up to the election already underway, if they considered there to be any political mileage for themselves in mesothelioma they would no doubt have made some reference to it and Action Mesothelioma Day. Several Labour Party politicians did attend Action Mesothelioma Day events and the All Party Parliamentary Sub-Group on asbestos seminar this week in London. It was reported from the Action Mesothelioma Day event in Manchester that shadow Health Secretary, Andy Burnham, pledged that a future Labour Government would if necessary compel insurance companies via legislation to provide funding for research into asbestos diseases. It also appears that a Labour Government would match any funding made by insurers.

It is probably most unlikely that the Conservatives will put forward any fresh proposals as regards research, seemingly contenting themselves that they have already done enough as regards helping mesothelioma victims with the passing of the Mesothelioma Act, and bringing forward their own research proposals. However, as has become clear the Coalition government resorted to a shameful sleight of hand as regards mesothelioma victims, giving with one hand and taking away with the other, following their sordid little deal with the insurance industry to ensure that the LASPO provisions apply to mesothelioma claimants. It will be interesting to see the Report of the House of Commons Justice Committee on Mesothelioma claims to be published on the 1st August, and what it says as regards bringing mesothelioma claims within LASPO and the deal struck with insurers.

The Liberal Democrats appear in an unsurprising mess generally, and face election wipe out. With many of the policies they have supported in Coalition it will be extremely difficult for the electorate to take any promises that run counter to this seriously. So even if they were to promise research funding from insurers or public funds, could it be believed?

The British Lung Foundation have been in talks with the insurance industry in the hope of persuading them to fund asbestos research. Lord Alton, speaking at the Manchester Action Mesothelioma Day event, gave the disappointing, but perhaps not entirely unsurprising news that talks between the two parties have failed to produce anything tangible. Whilst the central argument of the British Lung Foundation to insurers is powerful, in that if insurers fund research, in the long run this could be hugely cost beneficial to them in having to pay less compensation, it faces the difficulty of the insurance industry being made up of different companies who might have differing perspectives, and whose owners might question paying out sums where a benefit might not be seen for a number of years.

The Labour Party might find that any legislation compelling insurers to fund research could face a legal challenge, which could potentially dramatically slow any progress in getting money into research. For mesothelioma victims it would be a positive move for a future Labour Government to unpick the LASPO/Mesothelioma Act deal the Coalition Government had with the insurance industry. Whilst we wait to see the Justice Committee Report, the government in defending the decision to include mesothelioma claims under the LASPO provisions sought to argue that there was no justification for mesothelioma claims to be effectively favoured over other types of civil law claims and therefore remain outside of the LASPO provisions. The government said that whilst mesothelioma was a horrid disease, there were other horrid diseases and it could not be justified to give preferential treatment as regards legal actions to mesothelioma claimants. Whilst it is true that there are other horrid diseases, it may be asked which diseases are there that have been negligently caused on the scale of mesothelioma? I may be wrong but it would seem to me both the nature and sheer scale of the disease do make it unique and therefore meriting a different claims regime to the LASPO system.

No political party has thus far mentioned the £52 million saving for the government which the Mesothelioma Act is calculated to achieve over a 10 year period. It is this saving that I argue should be immediately utilised for research purposes. The online petition I set up calling on the government to fund research has now passed 1600 signatures, but of course this number is far short of what is needed in order to have any impact on any political party’s stance on the research issue. I wrote to the Department of Works & Pension to ask what would happen to the £52 million saving and whether it could be used for research. I received a somewhat blocking reply stating that research was a matter for the Health Department, not the Department of Work and Pensions. Just another example, convenient or otherwise for the government, of the difficulties faced when trying to get movement on such an issue.

Action Mesothelioma Day

As this is my very first blog post it is perhaps appropriate that it is on a subject likely to feature prominently in my future postings – mesothelioma.

The annual Action Mesothelioma Day this year took place on July 5th, when around the country events were held both to remember the victims of mesothelioma and to raise awareness of the on-going dangers of asbestos and exposure to it. I attended an event close to the Olympic Park, at Stratford Old Town Hall in London, where doves were released in memory of the thousands of victims of mesothelioma in this country.

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On the same day as we gathered to mark Action Mesothelioma Day yet another mesothelioma legal judgment was being handed down in the High Court – Haxton v Phillips Electronics, in which both a husband and his wife had become victims of mesothelioma. Mr Haxton had worked as an electrician for Phillips Electronics for many years from the early 1960s onwards, and during his employment he was negligently exposed by Phillips to asbestos. He began to develop symptoms attributable to mesothelioma in June 2008, and succumbed to the disease in July 2009. Mrs Haxton like many other wives had regularly washed her husband’s overalls, which of course were full of asbestos dust, and tragically she herself began to develop symptoms in early 2011, being diagnosed with mesothelioma in early 2012.

In June 2012 she began a legal action against Phillips in respect of her husband’s death as executrix of his estate and as his dependant. She subsequently commenced legal proceedings in respect of her own mesothelioma in February of this year. Phillips admitted liability in both cases, and thus all that needed to be decided was the level of compensation payable in each case.

Expert medical evidence put Mrs Haxton’s life expectancy at between 6-12 months only. An agreed undisclosed financial settlement was reached between the parties in respect of Mr Haxton’s death. This settlement included an amount for Mrs Haxton’s dependency on her husband based upon her life expectancy as per the medical evidence. Thus, because of the negligence of the defendant in causing Mrs Haxton’s mesothelioma, this element of the claim relating to her husband’s death was far smaller than it would have been if she had had a normal life expectancy. As a consequence of this fact she included in her personal action against Phillips a claim for her “loss of chance.” What this was in other words was that due to her diminution of life expectancy to below 12 months, she had the lost the benefit of a higher financial settlement in respect of her dependency claim. The amount she was claiming for in this respect was around £200,000. The other elements of her personal claim were agreed between the parties to be worth £310,000.

In her legal action before the judge Mr David Pittaway QC in the High Court, she argued that she had a valuable legal right in her husband’s case, but due to the negligence of the defendant in shortening her life expectancy this was of course drastically reduced, and she argued consequently she should be allowed to recover the ‘lost’ £200,000 in her personal action. She argued that it was a general principle in the law of negligence that the objective of damages was to put a claimant into the position they would have been if the wrong had not occurred – the wrong here being of course the negligence which led to her reduced life expectancy.

The judge rejected Mrs Haxton’s arguments, finding that based on existing legal principles she had recovered financially all she was entitled to in respect of the action relating to her husband’s death, and she could not claim in her personal action what she was not entitled to claim in her husband’s estate’s action. This was the position even though the defendant was the same party in both claims. Therefore the judge found that her personal claim was worth only £310,000, reflecting compensation for the mesothelioma itself and her pain and suffering, loss of earnings and future earnings, and the cost of personal care and support and travel expenses, but that the additional £200,000 could not be claimed for.

Whilst the judge may have been correct in his legal finding based upon the law as it currently stands, it seems somewhat perverse that a negligent party is able to avoid financial liability on the basis that they themselves have shortened the life of a dependent wife such as Mrs Haxton, albeit of course still having to pay her substantial damages.

It might be wondered whether a negligent defendant or their insurer in mesothelioma cases in future may where there is a dependant wife seeking to claim compensation based upon that dependency,  seek to question whether such a dependant wife had been exposed to asbestos dust whilst washing overalls and may try to raise an argument that as such there is a risk of them contracting mesothelioma as well, and consequently their life expectancy should be reduced and any dependency compensation reduced likewise!