Urgent Questions for the MoD and Government to Answer Following the Disclosure of the Sea King Helicopter Asbestos Alert
Recent media reports of an alert being issued by the Ministry of Defence (MoD) warning that large numbers of military engineers and former military engineers could have been exposed to asbestos whilst servicing Sea King helicopters, highlight not only the historic exposure to asbestos our military personnel have faced, but also the ongoing risks that exist from asbestos that remains in situ.2 The alert also points once again to an arguable failure of government to fully and appropriately address all of the issues asbestos continues to pose.
The risk from asbestos to military engineering personnel servicing Sea Kings has been present since 1969 when the Sea Kings first entered service. A spokesperson for the MoD was reported as stating that items in current operational Sea King helicopters suspected of containing asbestos were being urgently removed.3 The Sea Kings continue to play a key aviation role, with the media pointing unsurprisingly to the fact that until last year Prince William flew Sea Kings in his role as an air ambulance pilot.
Sea King helicopters manufactured in the UK were also sold to a number of foreign governments, leading as part of the alert the MoD to contact those governments to warn of the dangers posed by the asbestos within the helicopters.
It is disturbing that the initial alert issued by the MoD did not come in the form of a public announcement, but rather in the form of a “secret” document, sent to service and ex-service personnel recipients, who were asked not to share its details with those outside of the Armed Forces. What it may be asked have the MoD to hide that the alert was issued in such a cloak and dagger way, only of course for it to be leaked to the media? More than two weeks after the media disclosure of the alert the MoD finally issued a public news announcement, stating that they were conducting an investigation into whether the helicopters contain asbestos, and that advice to veterans would be published when available.4
The catalyst for the initial alert appears to have been the tragic death of an Australian military engineer, Petty Officer Greg Lukes, who died in 2014 from kidney cancer, aged just 37.5 The Australian military report into his death, which was revealed by Australian media in August 2016, states that the death was likely to have been caused by exposure to asbestos, petroleum, petroleum by-products, toxins, or a combination of these.
Why, it must be asked, did it take 2 years from the date of the official Australian report into the death of Greg Lukes for the MoD to warn military personnel of the potential exposure risks they had faced? Having issued the alert, the subsequent public announcement is a disgrace in merely stating that advice will be given when it is available. All those identified as being at potential risk of developing asbestos related diseases should undergo immediate health checks, and be regularly assessed for the rest of their lives, with this being co-ordinated by the MoD. Much has been made by this government and the previous coalition government of the armed forces covenant, in essence our debt to our service personnel. Such a debt must surely involve co-ordinated health care.
There appears to have been a significant failure on the part of the MoD to protect its military personnel, but there are also questions over the information it may have provided foreign government purchasers of Sea King helicopters. Greg Lukes joined the Australian Navy as a 17 year old in 1997. In 1999 he joined the particular squadron in which he was to service Sea King helicopters. It should be asked when did the Australian Navy become aware of the asbestos within the helicopters. Had they been warned by the MoD? Just a year after Greg Lukes commenced his work in the squadron that would ultimately lead to his death, official documentation shows that the UK military had identified 49 items containing asbestos in Sea King helicopters. A UK Health and Safety Commission meeting report in 2003 states that the items containing asbestos in the helicopter were being replaced when suitable alternatives were found, and that Sea King helicopters, it was said, should be asbestos free by late 2005.6 There are many questions that need to be answered.
A further aspect of the UK covenant to its service personnel must arguably be where such personnel do develop asbestos related diseases then financial compensation must be available to them and their families. Historically, however, members of the Armed Forces were unable to sue for personal injuries suffered during service to the Crown due to Crown Immunity. This position changed with the passing of the Crown Proceedings (Armed Forces) Act 1987, allowing members and ex-members of the military to claim for personal injuries sustained from the date the Act was passed.7 Section 1 of the 1987 Act makes clear that no action could be brought in respect to any act or omission involving the armed forces committed before the date of the passing of the 1987 Act. In other words, where alleged negligence that led to an injury occurring came before 1987 involving a member of the armed forces, no claim was possible. This effectively prevented those military personnel exposed to asbestos before 1987 from subsequently bringing claims and receiving compensation when they contracted an asbestos related disease after 1987.
The position remained unchanged in respect to the asbestos related disease mesothelioma until December 2015. Change in respect to mesothelioma came about due to the catalyst of the introduction of an insurer funded compensation scheme targeted at civilian victims of mesothelioma in 2012 (the Diffuse Mesothelioma Payment Scheme 2012).8 The civilian scheme aimed to right an egregious wrong: that whilst negligence on the part of an employer could be shown by a mesothelioma victim, where the employer was no longer in existence and no employers’ liability insurance policy as required by law could be identified, there had been no mechanism by which compensation for the negligence could be paid. Following the implementation of the new insurance funded scheme the Royal British Legion argued that it was unfair that civilians could now receive large compensation payments but military personnel exposed to asbestos before 1987 who subsequently contracted mesothelioma remained unable to obtain lump sum compensation, being only entitled to a disablement pension from the government.9
Following the campaign led by the Royal British Legion, the UK Government in December 2015 announced a change in the law enabling those military veterans with mesothelioma caused by exposure to asbestos before 1987 to be given the choice as to whether they wished to have a War Disablement Pension or alternatively to receive a newly government funded £140,000 lump sum compensation payment.10
This change, allowing military veterans exposed to asbestos before 1987 whilst in the armed forces who then subsequently contract mesothelioma to claim a lump sum, raises a further significant issue that remains unresolved and is particularly pertinent given the Sea King helicopter alert. This concerns the fact that the December 2015 change introducing lump sum payments only relates to those veterans exposed to asbestos before 1987 who subsequently contract the disease mesothelioma, not any other asbestos related disease. As the law currently stands those who were exposed to asbestos before 1987 – and it needs re-emphasising that Sea King helicopters have been in service since 1969 – are barred from bringing a claim for compensation for any other condition but mesothelioma, and would only be entitled to the disablement pension. Given that Petty Officer Greg Lukes died from kidney cancer, with the official report pointing to asbestos exposure as a contributory factor, it surely cannot be right that military veterans who worked on Sea Kings between 1969 and 1987 diagnosed with asbestos-related occupationally caused diseases other than mesothelioma remain ineligible for lump sum compensation. More than this, however, it cannot only be those military personnel exposed to asbestos whilst working on Sea King helicopters who should be fully compensated, all military veterans exposed to asbestos before 1987 whilst in the service of their country and who subsequently develop any asbestos related diseases should be morally entitled to compensation, not just those who have developed mesothelioma. There cannot be any moral justification to arbitrarily differentiate between diseases that have been negligently caused in this way.
Let us hope that the tragic death of Greg Lukes at such a young age will help in getting change to enable all military personnel obtain the necessary protection, health care and justice they deserve.
September 19, 2018
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1 Alan McKenna can be reached via email at: A.V.McKenna@kent.ac.uk
2 Asbestos warning for Sea King helicopter staff. BBC website, August 26, 2018. https://www.bbc.co.uk/news/uk-45313394
3 Ibid.
4 Sea king helicopters: asbestos. GOV.UK website, September 12, 2018. https://www.gov.uk/government/news/sea-king-helicopters-asbestos
5 HMAS Albatross workers strapped vacuum cleaners to their heads to breathe. Central Western Daily website, August 30, 2016.
https://www.centralwesterndaily.com.au/story/4131838/workers-strapped-vacuum-cleaners-to-their-heads-to-breathe/
6 Health and Safety Commission meeting minutes September 16, 2003
http://www.hse.gov.uk/aboutus/meetings/hscarchive/2003/160903/cm09.pdf
7 Crown Proceedings (Armed Forces) Act 1987.
http://www.legislation.gov.uk/ukpga/1987/25/contents
8 Diffuse Mesothelioma Payment Scheme.
https://www.mesoscheme.org.uk/
9 Legion helps secure pay outs for thousands of veterans with asbestos-related cancer. Royal British Legion, December 17, 2015.
https://www.britishlegion.org.uk/community/news/campaigning/legion-helps-secure-pay-outs-for-thousands-of-veterans-with-asbestos-related-cancer/
10 More flexible compensation for veterans with cancer caused by asbestos. GOV.UK website, December 16, 2015.
https://www.gov.uk/government/news/more-flexible-compensation-for-veterans-with-cancer-caused-by-asbestos
