Government figures released towards the end of 2009 confirmed reports from British asbestos victim support groups of a continuing rise in the national incidence of mesothelioma. Statistics from the Health and Safety Executive (HSE) document an ongoing epidemic which in 2007 led to 2,156 deaths (1,812 male and 344 female). The most common occupations recorded on death certificates for male mesothelioma victims were: carpenters and joiners, plumbers, heating and ventilating engineers, and electricians. [1]

Although the HSE is predicting that the annual number of male mesothelioma fatalities will peak at 2,038 by 2016, deaths will continue for decades to come. Statisticians estimate that 91,000 men will die from mesothelioma by 2050, the majority (67%) of whom will expire after 2007. [2] Amongst the dead, will be around 15,000 former carpenters. [3] These predictions are no surprise when examined alongside historical mesothelioma mortality figures. Since the introduction of the mesothelioma register in Britain (1967), the annual number of mesothelioma deaths has risen fairly constantly: 153 (1968), 392 (1978), 872 (1988), 2,156 (2007); these figures constitute more than a 14-fold increase in 40 years.[4]

Throughout 2009, The Mirror's “Killer Dust” campaign continued to highlight the plight of the country's asbestos victims with the January 8, 2010 blog covering Scotland's progress on reinstating the rights of pleural plaque victims. [5] Other recent media coverage included articles in The Independent. [6] While a front-page article which appeared at the end of November focused on the deadly fall-out from an asbestos factory – an “industrial killing machine” – in East London, the January 10, 2010 piece highlighted the bureaucratic injustices experienced by asbestos victims whose receipt of Industrial Injuries Disablement Benefit (IIDB) proved to be a poisoned chalice. A case in point is that of asbestosis victim Tony Webster who said:

“When I got the IIDB I noticed straight away that my pension credit had disappeared… Then I went to the dentist and he said I now had to pay full price because I wasn't on pension credit. This was meant to help me and now I am worse off; it's ridiculous.”

More Illness, More Claims
Government statistics and anecdotal evidence agree that more people are contracting asbestos-related cancer. Data collated from disablement benefit files from 1981 to 2008 show that as mesothelioma mortality has risen, so too has the number of benefit claims, albeit at a lower level. [7] Even as late as the 1980s, however, many of those with asbestos-related diseases did not use the courts to pursue compensation claims.

In a 1994 doctoral dissertation, Thomas Durkin identified a vast pool of uncompensated asbestos victims in the UK. Amongst the reasons he cited for the huge disparity in the number of asbestos-related civil actions in the UK and the US were: loyalty by UK workers to former employers that might be paying their pensions, a reluctance to risk paying both sides' costs if a legal case were lost, and discouragement as a result of the Department of Health and Social Security rejecting a claim for industrial benefits.

By the time Durkin's dissertation was published, however, the climate had already changed. The results of an informal sampling of legal specialists undertaken in January 2010 confirm that the number of those instigating personal injury mesothelioma lawsuits has been increasing since the mid-1990s. There are, of course, exceptions. In September 2009, Sir Alastair Aird, the former Private Secretary to the Queen Mother, died of mesothelioma. Although it was reported that he had organized “the removal of asbestos from Clarence House, his widow has “ruled out the possibility of suing the Royal Family.” [8]

Britain plc has explored legal, political and financial options to avoid asbestos liabilities. In October 2009, insurance broker Marsh Ltd. issued a report entitled Mesothelioma Claims which warned that:

“mesothelioma claims present a real business risk to many companies – first because they have still to reach a peak, and secondly because the current legislative landscape makes it easier than ever for individuals to bring legal action against companies that may have exposed them to asbestos.” [9]

The research conducted for the Marsh paper involved an analysis of 91 mesothelioma cases which came before Senior Master Whitaker of the Queen's Bench Division of the High Court of Justice; the selected cases constituted 15% of the total number managed by Senior Master Whitaker between September 2006 and October 2007. Some of the report's findings were unsurprising:

- nearly 60% of the cases were brought against organizations from the following industrial sectors: mechanical, electrical and process engineering, chemical, construction, metal, mineral, electronics and IT hardware;

- geographical clusters of cases confirmed that many of the claimants had been exposed to asbestos through employment in engineering, chemical production and construction;

- most of the injured were exposed to asbestos between 1956 and 1960;

- 65% of all claims were handled by just three law firms;

- the value of claims ranged from £50,000 to £200,000. [10]

An interesting fact thrown up by the study was that that “there are almost as many claims by dependents (47%) as by principals (53%).” This document is a primer for potential defendants who have not yet come to grips with the repercussions of their own negligent practices and the unknown liabilities acquired during company mergers, purchases and takeovers: “even a company with no direct link to asbestos either now or in the recent past, may still be liable.”

As the mesothelioma list run by Senior Master Whitaker aims to deliver judgment on live mesothelioma claims within four to six months, the receipt of a letter before action starts the clock ticking. The accelerated nature of the live claims process and the court's refusal to grant extensions can, without a doubt, compromise a defendant's case if the necessary information – such as old employers' liability policies – is not readily to hand. In his foreword to the Marsh Report, Senior Master Whitaker suggests that:

“preparatory work to establish potential liability and preserve records can be undertaken before any claims have been received. I would urge any companies that may be exposed to asbestos-related risk to do their 'due diligence' well in advance – and bear in mind that risk may result from simply having owned, or even occupied, a building containing asbestos at some point in the company's history.”

Contentious Legal Issues
A review of court decisions handed down over the last few months illustrates that issues – such as what constitutes de minimis exposure to asbestos and the extent of asbestos contamination in schools – remain hotly contested. The October 15, 2009 death of Dianne Willmore, a 49-year-old mother of two, hours after the Appeal Court upheld a verdict awarding her £240,000 was a poignant reminder, if one were needed, of the tenuous hold many mesothelioma litigants have on life. As Ms. Willmore's Solicitor, Ruth Davies, said: “But for the asbestos, she (Dianne) had been exposed to, she might have had another 40 years.” [11]

The High Court and the Appeal Court agreed that Knowsley Metropolitan Borough Council had negligently exposed the claimant to asbestos when she was a secondary school pupil at Page Moss Comprehensive School (later renamed Bowring Comprehensive). [12] The defendant's contention that the exposure which took place from 1972 to 1979 was “de minimis” did not find favor either with the original judge or the appeal court judges. Unfortunately for Ms. Willmore's family, Knowsley Council has approached the Supreme Court for permission to appeal. [13]

Paying tribute to Ms. Willmore, Michael Lees, the country's leading campaigner on asbestos contamination in schools, highlighted the importance of the case saying:

“In my knowledge, this is the first time in this country that a person exposed to asbestos at school as a child has successfully fought a case through the courts and been awarded compensation from the people who negligently exposed her.” [14]

Michael's wife Gina was a schoolteacher who died from mesothelioma having been exposed to asbestos at a number of schools. Joan Harvey, another schoolteacher, also died from mesothelioma (June 2007). The 57-year old had worked at St. Philip Howard in Poplar and Chase Cross in Romford during a teaching career of more than twenty years. Her legal advisers believed that she had been exposed to asbestos released from the schools' ceilings. Tests carried out by her former employers – the London Borough of Havering and the London Pension Fund Authority (LPFA) [15] – proved inconclusive. An out-of-court settlement was reached days before the High Court hearing was due to begin in London; it was reported that compensation of £180,000 was paid to her family in June 2009.

According to an article in the London Evening Standard, the Henry case was the first time the LPFA, the authority responsible for former staff of the Inner London Education Authority and the Greater London Council, paid compensation to someone other than a manual laborer who had had direct exposure to asbestos. [16] Although the Standard's article asserted that the LPFA had set up an “£85 million asbestos compensation fund,” further enquiries revealed that this was not the case. “The LPFA has,” its representative said “estimated that it has a total liability of £86 million stretching for the next 20-25 years. LPFA assesses liabilities that arise on an annual basis and imposes a levy on the relevant London boroughs accordingly."

As in the Willmore case, “de minimis” tortious exposure to asbestos was central to the defense of Greif (UK) Ltd. in a case brought against it by Karen Sienkiewicz, the daughter of deceased mesothelioma victim Enid Costello. Although Mrs. Costello was a clerical worker who had been based in one of the office blocks at Greif's Ellesmere Port premises from 1966 to 1984, “her duties took her all over the factory and she spent some time in the areas which were from time to time contaminated with asbestos.” [17]

Having initially denied that Mrs. Costello's disease had been caused by asbestos, the defendant alleged that the minimal occupational asbestos exposure experienced had been less than the environmental exposure endemic in the area. What level of endangerment was necessary for this case to succeed – was a material increase of risk sufficient or was a two-fold increase necessary?

A defendant's decision handed down by Judge Main QC in December 2008 was reversed on November 6, 2009 by the Court of Appeal (Civil Decision). Main had, the Appeal Court found, been wrong to require the two-fold increase in risk when the appropriate benchmark in a mesothelioma case should have been a material increase of risk. Expressing support for the reasoning of Lady Justice Smith, Lord Clarke said he believed this to be “the first mesothelioma case in which the court has been asked to consider together the decisions in Fairchild v Glenhaven Funeral Services Ltd [2002]… and Barker v Corus UK Ltd [2006] and the terms of section 3 of the Compensation Act 2006.” The defendants have petitioned the Supreme Court for permission to appeal; a decision is expected by the end of January.

Overcoming Obstacles: Company Executives, Lost Policies
It is safe to say that in mesothelioma cases, time is not on the side of the injured. By the time the disease takes hold, negligent companies have often gone out of business and relevant insurance policies have been lost. It is heartening to report two cases where such difficulties have been overcome. Frederick Hughes, who died from mesothelioma in 2001 had worked for the engineering firm of Vernon & Roberts in the 1960s.

During the dismantling and demolition of buildings and equipment, Mr. Hughes had been occupationally exposed to asbestos. Although the case was settled for £60,000 in September 2005, no compensation had been paid to the family as The Federated Insurance Company, the firm's insurers, had ceased trading. The Financial Services Compensation Scheme rejected a claim for compensation saying that the judgement debt was enforceable against Vernon & Roberts, a solvent, trading company, regardless of the status of their insurers. By this time, however, the company had ceased trading and Mrs. Hughes was left with few options. A lawsuit for corporate misfeasance against former directors was mounted. Solicitor Pauline Chandler explained:

“In this case, there were assets of £250,000 when the claim was made and instead of sharing them out between themselves when the company finally folded, the directors should have paid out Mrs. Hughes compensation claims.”

Seven years after her husband's death, Mrs. Hughes received the full damages due to her. [18] Like Mr. Hughes, Derek Hoult died from mesothelioma in 2001. From the late 1950s to the early 1960s, he had worked for timber merchants Rudders & Payne delivering asbestos ceiling panels for use in the building industry. As the negligent company had long been closed, attempts were made to track down their insurers; three years worth of searches proved fruitless. By October 2004 it looked like the case had hit a brick wall. In 2008, Solicitor Alida Coates made a breakthrough when she happened upon documents which were part of an unrelated claim. Commenting on this discovery she said:

“I just stood staring at this piece of paper and couldn't quite believe my eyes. It was a million to one chance but it provided me with a link which would ultimately lead to us identifying Zurich as the elusive insurers… Frustratingly when we checked our case files, we had originally contacted Zurich but their search had come back negative. This is sadly a not uncommon occurrence. There is such a backlog of data within the insurance industry that at this time the key information had not been entered onto their computer system.” [19]

Instead of putting their hands up, Zurich initially claimed the legal action was out of time, being brought more than three years after Mr. Hoult's death. Three weeks before the case was scheduled to begin, the insurers agreed to pay a six figure sum.

Defendant corporations would do well to study the Hughes and Hoult decisions as both have ramifications which transcend the specifics of their respective cases. The Hughes judgment puts company directors on notice that they can and will be held personally liable if their insurers go broke. “This case is,” said Solicitor Pauline Chandler “a warning to any company which tries to dispose of assets in order to avoid payment of a judgment debt.”

The long-running saga which was the Hoult case underlines the ineptitude of the voluntary code for tracing insurers and provides further ammunition for those calling on the government to reinstate legal provisions which mandated that employers' liability certificates be retained for 40 years. Barring the fortunate happenstance which finally resolved Hoult, the outcome could have been very different. In such circumstances, an insurance fund of last resort – such as that proposed by the Asbestos Victims Support Groups Forum UK – would have provided a measure of compensation for the bereaved.

(By Laurie Kazan-Allen, British Asbestos Newsletter, 21/12/2009)

[1] HSE. National statistics on mesothelioma. 2009.
http://www.hse.gov.uk/statistics/meso09.htm

[2] Health and Safety Laboratory. Projection of mesothelioma mortality in Great Britain. RR728. 2009.
http://www.hse.gov.uk/research/rrpdf/rr728.pdf

[3] HSE. Occupational, domestic and environmental mesothelioma risks in Britain, A case-control study. RR696. 2009. http://www.hse.gov.uk/research/rrpdf/rr696.pdf

[4] HSE. Death certificates mentioning mesothelioma 1986-2007.
http://www.hse.gov.uk/statistics/tables/meso01.htm

[5] Sommerlad N. Pleural plaque compensation given green light in Scotland. January 8, 2010.http://blogs.mirror.co.uk/asbestos-campaign/2010/01/pleural-plaque-compensation-gi.html

[6] Duggan E. Asbestos: A shameful legacy. The Independent. November 22, 2009.
http://www.independent.co.uk/news/uk/home-news/asbestos-a-shameful-legacy-1825554.html
Duggan E. Dying workers 'robbed of life and of their compensation.' The Independent. January 10, 2009.
http://www.independent.co.uk/news/uk/home-news/dying-workers-robbed-of-life-and-of-their-compensation-1863271.html

[7] HSE. Mesothelioma – Overall scale of disease including trends.http://www.hse.gov.uk/statistics/causdis/mesothelioma/scale.htm

[8] Parr A, Johnson A. Was the Queen Mother's Private Secretary killed by asbestos from Clarence House? October 10, 2009. Mail Online.http://www.dailymail.co.uk/news/article-1219504/Was-Queen-Mothers-Private-Secretary-killed-asbestos-Clarence-House.html

[9] Mesothelioma claims. Marsh Ltd. 2009.
http://www.marsh.co.uk/mediacentre/2009/documents/Mesothelioma_white_paper.pdf
See also: http://www.marsh.co.uk/mediacentre/2009/pr20091008.php

[10] These sums excluded costs and related solely to the personal injury element of the claim.

[11] Kazan-Allen L. In Remembrance of Dianne Willmore. October 15, 2009. http://ibasecretariat.org/lka_remembr_dianne_willmore.php

[12] Dianne Willmore v. Knowsley Metropolitan Borough Council.

[13] Turner B. Fresh court threat to Knowsley cancer victim's asbestos payout. Liverpool Daily Post. December 22, 2009. http://www.liverpooldailypost.co.uk/education/education-news/2009/12/22/fresh-court-threat-to-knowsley-cancer-victim-s-asbestos-payout-92534-25445091/

[14] http://www.asbestosexposureschools.co.uk/Estimate%20childrens%20deaths.htm

[15] In a statement received on January 15, 2009, a London Pension Fund Authority (LPFA) official explained that the “LPFA inherited residual liabilities flowing from the contract of employment from the Greater London Council and also from ILEA (Inner London Education Authority) when they were abolished in 1986 and 1990 respectively.” See also: http://www.lpfa.org.uk/about/history.aspx

[16] Millard N. £85m fund set up for soaring asbestos claims. London Evening Standard. October 27, 2009. http://www.thisislondon.co.uk/standard/article-23761094-pound-85m-fund-set-up-for-soaring-asbestos-claims.do
Fund sets aside £85m for asbestos claims. Risks e-bulletin. Number 430 – 31 October 2009. http://www.tuc.org.uk/h_and_s/tuc-17172-f0.cfm#tuc-17172-18

[17] Karen Sienkiewicz v Greif (UK) Ltd. Court of Appeal decision November 6, 2009. http://www.out-law.com/page-10535

[18] Directors told to pay up. Issue 108, Hazards. October-December 2009. http://www.hazards.org/greenjobs/greenwash.htm
Pannone Press Release. Directors pay widow £60,000 compensation. January 15, 2009.

[19] Press Release. “Million to one” discovery provides justice for Birmingham family after worker's asbestos death. January 11, 2010. http://www.irwinmitchell.com/news/Pages/Million-To-One-Discovery-Provides-Justice-For-Birmingham-Family-After-Workers-Asbestos-Death.aspx