Mesothelioma: The British Disease
By the end of this year (2013), more than 60,000 Britons will have died from asbestos-related diseases this century. Government data reveal an inexorable rise of mesothelioma mortality since 2000, with 2,347 deaths reported in 2010, the most recent year for which figures were available.1 Worse is to come according to Lord Freud, Parliamentary Under-Secretary of State, Department for Work and Pensions, who told the House of Lords on May 20, 2013 that: “We expect there to be roughly 28,000 deaths from mesothelioma between July 2012 and March 2024.”2
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Commenting on the mesothelioma epidemic, Tony Whitston, Chair of the Asbestos Victims Support Groups Forum UK, said:
“The predicted increase in numbers of new mesothelioma diagnoses is witnessed 'on the ground,' day by day by all the asbestos victims' support groups. Also in line with predictions, an increasing number of mesothelioma sufferers now come from the construction industry. However, we are also seeing an increasing number of mesothelioma sufferers, many of whom are women, who simply do not know how or where they were exposed to asbestos. A worrying number of teachers have been diagnosed with mesothelioma, which is a cause of great concern given the number of school children who may also have been exposed to asbestos.”
Since 2006, mesothelioma sufferers, victim support groups, charities and campaigning bodies throughout the UK have held an annual “Action Mesothelioma Day (AMD)” to raise public awareness of this aggressive cancer. At AMD conferences, information sessions, public meetings, outdoor rallies and church services, the injured have spoken out about the impact asbestos exposures have had on their lives; on many occasions, it has been the relatives who have had to speak about the plight of those whose lives had been sacrificed to asbestos. The number of people dying in this country from mesothelioma has increased by 14% since 2006. Data from the World Health Organization (WHO) confirms the validity of labelling mesothelioma the “British disease.” According to WHO statistics, between 1994 and 2008 “the United Kingdom had the highest age-adjusted [mesothelioma] mortality rate, at 17.8 per million, followed by Australia, at 16.5 per million, and Italy, at 10.3 per million.”3 During the 14 years covered by the WHO, there were 13,517 UK deaths from mesothelioma; only the United States, a country with a population of 316 million, recorded more mesothelioma deaths (17,062).
The Mesothelioma Bill 2013
As the incidence of mesothelioma and the likelihood that victims would seek legal redress for their injuries have grown,4 so too has the determination of British defendants to find new strategies to minimize their asbestos liabilities. When it became clear that an insurance industry-funded scheme to compensate victims penalized by the loss of Employers' Liability policies was likely, a concerted effort was made by vested interests to curtail the entitlement of applicants and scale of benefits. Where victims' groups called for measures that recognized the rights of all those affected, insurers argued for limitations on access and eligibility. Where civil society campaigners demanded full financial recompense, insurers argued for age-related lump sum payments which were a percentage of civil compensation awards.5 During the consultation over what was to become the “Mesothelioma Bill,”6 Lord Freud met insurers 14 times; during the same period (October 2010 to September 2012), he met representatives from victims' groups twice.7 Predictably, the watered down bill which finally emerged had more in common with the insurers' vision than with the victims' needs.
Good News, Bad News
During the Queen's Speech on May 8, 2013, which marked the official opening of Parliament, the Queen announced: “Legislation will be introduced to ensure sufferers of a certain asbestos-related cancer receive payments where no liable employer or insurer can be traced.”8 The reforms referred to in that statement are set out in the Mesothelioma Bill which on May 9 and May 20 received its first and second readings in the House of Lords.9 According to Department of Work and Pensions estimates, from April 2014 to March 2024 the Mesothelioma Payment Scheme will provide compensation to ~2,900 mesothelioma sufferers in England and Wales, Scotland and Northern Ireland10 who would otherwise, due to the defunct status of negligent employers and the inability to trace relevant Employers' Liability policies, have been unable to recoup compensation. Aside from an injection of £17 million by the government, the £355m scheme will be paid for by a compulsory levy on active Employers' Liability insurers;11 the top five insurers will contribute almost 60% of the total fund.12 The benefits of the Mesothelioma Bill and other proposed legislative changes are, purportedly, as follows:
- Anyone diagnosed after July 25, 2012 with mesothelioma contracted from negligent workplace exposure to asbestos who cannot trace a former employer or insurer is eligible;
- Individual payments in the region of £87,000 will be made to successful claimants; this amount equates to about 70% of average damages awarded in mesothelioma injury cases;
- Where a claimant has died, the payment will be made to eligible dependants;
- An unsuccessful applicant can appeal to a tribunal for a case review;
- The mesothelioma claims process will be streamlined so that where an employer or insurer has been traced, compensation will be paid within three months; where no such party has been identified, payments will be made within five months;
- A Technical Committee will be established to resolve disputes which might arise between insurers;
- An online one-stop portal for the submission of mesothelioma claims will be created by the Association of British Insurers.13
The reaction of victims' groups and trade unions to the details of the scheme was less than positive. Critics highlighted the ineligibility of 50% of all asbestos victims impacted by the inability to trace negligent employers or Employers' Liability policies; these include people suffering from respiratory diseases and cancers caused by asbestos or people who had been diagnosed with mesothelioma prior to July 25, 2012.14 The 30% underpayment of compensation and the age-related downsizing of awards is condemned as are planned changes to the civil litigation system which will “straight-jacket [mesothelioma] claimant's cases … [and] will potentially increase delay, reduce funding and will impact on the levels of damages received.”15
A statement by the Asbestos Victims Support Groups Forum UK sums up the frustration and anger felt:
“it must be remembered that for decades it was asbestos victims who bore the burden of untraced insurance and insurers have saved hundreds of millions avoiding liability for insurance they wrote. For decades, the taxpayer has funded the government lump sum payments for those who could not trace their insurer, and they have only recovered those payments when an insurer was found since 2008…
The insurers have negotiated a scheme which excludes 50% of asbestos victims, they are excused liability for all claims prior to 25 July 2012, their costs are reduced because average compensation means they do not have to engage in negotiations about individually assessed payments, and fault must be proved. And, the Government is giving insurers £17 million to help set up the scheme. On top of all that they want to reduce average compensation by 30%. That is simply not acceptable.”16
Steve Murphy, General Secretary of the Construction Union UCATT, was even more outspoken:
“Deaths from asbestos are entirely preventable. For decades Governments and employers knew the risks but chose to do nothing. It is disgraceful that even now they are trying wherever possible to deny workers compensation… This watered down scheme which denies compensation to many victims and slashes compensation to those who qualify, demonstrates that the Conservatives are in the pocket of the insurance industry.”17
What Happens Now?
Amendments to the text of the Mesothelioma Bill under consideration by the House of Lords were submitted by June 3. On June 5, the Mesothelioma Bill went to the Lords' Grand Committee; amendments to the bill were considered during a meeting which lasted for four hours.18 There was heated debate on aspects of the bill including the arbitrary start date, the exclusion of the self-employed and victims of para-occupational exposure and the amount of compensation to be paid. Discussions at the Grand Committee will resume on June 10, at which time it is expected that voting on the amendments proposed will take place. According to Parliamentary procedure, a gap of fourteen days is required between the end of the committee stage and the start of the report stage, with a further three day-delay before the Bill's third reading and final vote. According to the prescribed timetable, the draft legislation could arrive in the House of Commons by the end of June. Should amendments by the Lords survive until then, the Commons will, according to tradition, need to make concessions.
Even as mesothelioma sufferers await further Parliamentary developments, the limited provisions of the Mesothelioma Bill were attacked on June 2, 2013 in the pages of the Sunday Telegraph. It is amazing how much questionable innuendo and crass conflation can be contained in a 378-word text. In the piece entitled “There's money in asbestos. Ask a lawyer,” Columnist Christopher Booker, a long-time critic of UK and EU asbestos policies, stated that:
- “up to 50 per cent of such cases [of mesothelioma] either occur naturally or arise from other causes;”
- chrysotile fibers “locked in cement…cannot cause mesothelioma;”
- The Health and Safety Executive has been “hijacked by the junk science of the ['unscrupulous'] lobby;”
- the new scheme will “pay automatic compensation.”19
One can only hope that representatives in both Houses of Parliament are better-informed and more compassionate. If the Mesothelioma Bill were amended to cover all those whose lives had been sacrificed to asbestos, as Early Day Motion 180 urges, it would be a small price to pay for ensuring that justice was done.20 Surely, this is the right thing to do.
June 21, 2013
– Originally published in the Spring 2013 Issue of the British Asbestos Newsletter –
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1 The estimate of 60,000+ deaths is based on HSE mesothelioma and asbestosis data for Great Britain:
http://www.hse.gov.uk/statistics/tables/meso01.xls
http://www.hse.gov.uk/statistics/tables/asis01.xls
Using the mesothelioma figures, estimates have been made for the number of asbestos-related lung cancer fatalities based on the HSE guideline of one asbestos-related lung cancer death for every mesothelioma death.
http://www.hse.gov.uk/statistics/causdis/lungcancer/index.htm
See: HSE. Mesothelioma mortality in Great Britain 1968-2010.
http://www.hse.gov.uk/statistics/causdis/mesothelioma/mesothelioma.pdf
HSE: Mesothelioma. http://www.hse.gov.uk/statistics/causdis/mesothelioma/index.htm
2 Lord Freud, May 20, 2013: Second reading of Mesothelioma Bill. Hansard source (Citation: HL Deb, 20 May 2013, c687) http://www.theyworkforyou.com/lords/?gid=2013-05-20a.687.4
3 Delgermaa V, Takahashi K. et al. Global mesothelioma deaths reported to the World Health Organization between 1994 and 2008. Bulletin World Health Organization 2011.
http://www.who.int/bulletin/volumes/89/10/11-086678/en/
4 Anecdotal evidence supports the view that the majority of people with mesothelioma bring legal actions; the DWP estimates that 14% of mesothelioma patients do not lodge civil claims against former employers. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/198388/mesothelioma-payment-scheme-impact-assessment.pdf
5 DWP. Mesothelioma Payment Scheme – Impact Assessment. May 7, 2013.
According to data collected by the DWP “civil compensation [for mesothelioma] is on average £154,000 (in 2012 terms) …”
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/198388/mesothelioma-payment-scheme-impact-assessment.pdf
6 Public consultation was begun under the Labor Government in February 2010 under a proposal entitled: Accessing Compensation: Supporting people who need to trace Employers' Liability Insurance.
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/185024/elci-compensation-consultation.pdf
7 Dugan E. Exclusive: Victims blame insurers for 'insulting' asbestos payouts. May 5, 2013.
http://www.independent.co.uk/news/uk/home-news/exclusive-victims-blame-insurers-for-insulting-asbestos-payouts-8604128.html
8 Queen's speech. May 8, 2013.
http://www.guardian.co.uk/politics/2013/may/08/queens-speech-2013-full-text
Mesothelioma Bill. Second reading. May 20, 2013. House of Lords.
http://www.publications.parliament.uk/pa/ld201314/ldhansrd/text/130520-0002.htm [Column 688-732]
9 Mesothelioma Bill [HL] 2013-14
http://services.parliament.uk/bills/2013-14/mesothelioma.html
10 Should any provisions of this Bill relate to devolved matters, the consent of the Scottish Parliament and Northern Ireland Assembly will be sought.
11 DWP. Mesothelioma Payment Scheme – Impact Assessment. May 7, 2013.
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/198388/mesothelioma-payment-scheme-impact-assessment.pdf
12 McEwan S. Employers' liability: mesothelioma fund to drive rates. January 25, 2013.
http://www.datamonitor.com/store/News/employers_liability_mesothelioma_fund_to_drive_rates?productid=5A99727D-CD80-42AA-9249-B7354E4DA1F2
13 Queen announces support for asbestos victims. May 8, 2013.
http://www.shponline.co.uk/topics/asbestos/news/full/queen-announces-support-for-asbestos-victims
14 Asbestos Victims Support Groups Forum UK. The Mesothelioma Bill – Briefing for Peers.
http://www.asbestos-victims-support.org/peersbriefingmay2013.pdf
15 Thompsons' Solicitors. Mesothelioma Bill. May 2013.
http://www.thompsonstradeunionlaw.co.uk/information-and-resources/mesothelioma-bill-thompsons-briefing.htm
Also see: http://www.thompsons.law.co.uk/personal-injury/mesothelioma-bill-northern-tuc-asbestos-group.htm
16 An online petition “The 2013 Mesothelioma Bill needs to be changed” addressed to Lord Freud had received 800+ endorsement by June 5, 2013.
http://you.38degrees.org.uk/petitions/the-2013-mesothelioma-bill-needs-to-be-changed-1
17 UCATT. Government in pocket of insurance industry. May 8, 2013.
https://www.ucatt.org.uk/article.php?group_id=2036
18 http://www.publications.parliament.uk/pa/ld/ldordpap.htm#minproc
19 Booker, C. There's money in asbestos. Ask a lawyer. June 1, 2013.
http://www.telegraph.co.uk/news/politics/georgeosborne/10092749/Cuts-BBC-What-cuts.html
