Asbestos Compensation in Europe
The European Union (EU) has many laudable objectives few of which seem to improve the plight of hundreds of thousands of Europeans whose lives have been blighted by the widescale and often unregulated use of asbestos. While financiers, bankers and businessmen benefit from the single market, asbestos victims are left to endure as best they can under individual national systems which provide levels of compensation which range from tolerable to nonexistent. Research financed by the group: Europe Against Cancer (Estimation of the burden of occupational cancer in Europe, Final Report, March, 1998 by M Kogevinas, T Kauppinen et al) established that in the early 1990s, over 1.2 million workers were still being occupationally exposed to asbestos in the fifteen EU member states. Epidemiologists predict that half a million Europeans will die from asbestos disease over the next thirty-five years (The European mesothelioma epidemic by J Peto, A Decarli et al, British Journal of Cancer (1999) 79 (3/4), 666-672). Throughout Europe the legacy of massive asbestos use persists in the environment, buildings and rolling stock and the lungs of our fellow citizens.
The French law governing compensation for occupational diseases dates from 1919. Workers with prescribed diseases are entitled to compensation from a government body funded by employers' contributions; in theory, workers need not demonstrate the causal links between exposure and prescribed diseases. In practice, this is often undermined, not least by physicians, medical specialists and bureaucratic experts who continually question the principle of "presumption of origin." Victims of mesothelioma, asbestosis and pulmonary cancer, all of which are prescribed diseases, are disadvantaged by the pro-employer bias of the current system. Administrative procedures are long-winded, resulting in many claims being abandoned; acquisition of the requisite medical certificate is complicated for victims, most of whom are elderly, unskilled workers with no trade union support. The system is subject to the whim of bureaucrats who recently proclaimed, with absolutely no evidence, that there are no more cases of asbestosis in France. Of course, this means that the procedure for claiming compensation for French asbestosis victims becomes even more difficult.
ANDEVA, the national asbestos victims group, has been calling for changes for several years. ANDEVA officials, working closely with French lawyers, have broken new ground in the last two years. In March, 1999 Michel Drouet, a fifty-three year old mesothelioma patient from Cherbourg, became the first applicant to win damages from the Criminal Compensation Commission (CCC), a panel more used to hearing appeals from victims of terrorism or road accidents. Having reviewed evidence of eighteen years of occupational exposure in the French Navy, the three Commissioners awarded the former mechanic FF980,000 ($163,000). Although, this decision was appealed by the Fund of Guarantee, a government panel, it was upheld by the Court of Appeal. Most of those seeking compensation by this route, military personnel, sailors, government officials, etc. are barred from making a claim to Social Security Tribunals. More than 1,200 social security asbestos cases now pending, follow on from an important decision on April 16, 1999, when twenty-two retired workers or their estates won a joint case before the Social Security Tribunal in Melun. Everite, their former employer, was guilty of "faute inexcusable," (outrageous misconduct). Evidence that even the most basic preventative measures had not been taken was accepted. The verdict of "faute inexcusable" more than doubled the size of the awards. Another precedent was set when the court insisted, despite the likelihood of an appeal, that payment of four million francs ($720,000) be made immediately. One month later, another verdict of "faute inexcusable" was handed down; the defendant in this case was S. A. Valeo, the company which had taken over the operations in north-west France of Ferodo Ltd., a subsidiary of Turner and Newall Ltd. On May 27, 1999, the Appeal Court of Caen found S. A. Valeo responsible for the death of Mr Alfonsi, a Ferodo worker. Interestingly, the ruling mentioned the highly specialised nature of Ferodo's business. Production was inextricably linked to asbestos: "usage was not haphazard or occasional but continual and massive." Since these verdicts, there have been many other successes. To date, more than two hundred claims brought by ANDEVA members for "faute inexcusable" have succeeded. The results of civil actions for domestic and environmental contamination have been less positive.
Until fairly recently, a thirty year limitation period combined with the latency of asbestos diseases meant that many Dutch victims remained uncompensated. Since 1994, the number of asbestos personal injury cases has increased, with several hundred lawsuits pending. Over the last six years, one Dutch specialist has handled approximately one thousand asbestos cases. According to him, Dutch employers and insurance companies prefer to settle asbestos claims with only 10-15% proceeding to court. The availability of more and better information has led to a significant rise in the size of pain and suffering awards ($50,000-$80,000). Prior to 1997, the date of knowledge in mesothelioma cases was accepted as 1969, the year in which a thesis recognizing mesothelioma as a primary cancer was published in Holland by Dr. Stumphius. This date was pushed back by the February 25, 1997 verdict handed down by Judges Makkink, Schlingemann-Vermeulen and Groothius in the case of Cijsouw vs. De Schelde. The estate of Levinus Abraham Cijsouw, a Dutch joiner who died from mesothelioma of the peritoneum, was awarded 150,000 guilders ($75,800) in damages. De Schelde, Mr. Cijsouw's employer from 1949-1967, had not taken adequate precautionary measures in light of the known dangers of asbestos. The Court ruled that: "The measures that were required at the time and recommended in specialist literature were: limiting the use of asbestos as much as possible, purifying the air and issuing personal protective devices." National borders should not have prevented the company from seeking out necessary information, even if that information originated in a foreign country: i.e. Great Britain. On October 2, 1998, an appeal to the Supreme Court of Holland upheld the plaintiff's verdict.
While civil claims are an option for Dutch mesothelioma patients, the legal process, as elsewhere, is not known for its speedy resolution of cases. Once diagnosed, mesothelioma patients do not have the time or energy for endless legal wranglings. In order to streamline the compensation process, the Institute of Asbestos Victims (IAV) was set up on January 26, 2000. This was the culmination of years of lobbying and campaigning by the Dutch Committee of Asbestos Victims. Established in 1995 to secure justice and compensation for all asbestos victims, the work of this group was pivotal in obtaining the cooperation of employers, insurers and the government which was necessary for this scheme to be implemented. Asbestos victims entitled to apply to the IAV are limited to mesothelioma patients with traceable employers/insurers whose exposure occurred within the thirty year limitation period. The IAV aims to resolve claims within four months; to bring a claim before the IAV, individuals must renounce the right to bring a civil action. The IAV is incapable of dealing with all Holland's asbestos victims as its rules bar asbestosis, lung cancer and the 30% of mesothelioma patients whose exposure took place more than thirty years ago. Mesothelioma victims disqualified from making an IAV claim, can apply to the Government Asbestos Institute (GAI), a tripartite body which administers a national compensation scheme. There is a huge discrepancy in the levels of compensation available from the two sources with average settlements of 90,000-100,000 guilders ($45-$50,000) being awarded by the IAV and 35,000 guilders ($17,700) by the GAI. By comparison, compensation from a civil case could be somewhere in the region of 135,000 guilders ($68,000). Neither the IAV or GAI will compensate asbestosis or lung cancer victims. In 1999, litigation prospects for people with asbestos-related lung cancer improved with a Dutch verdict that awarded damages to a former smoker. Since that decision, defendants and insurance companies appear more willing to settle these claims. With 40,000 additional asbestos-related deaths expected in the Netherlands by 2035 (The monitoring and enforcement of the asbestos policy in The Netherlands by HWA Jans, CJM Van Den Bogaard and K Locher, Volume 19 Sourcebook on Asbestos Diseases), it is clear that the IAV, GAI and personal injury specialists will have their work cut out for them.
Although the incidence of UK asbestos-related disease has risen dramatically, the conversion of patients into plaintiffs has not kept pace. Nancy Tait, a leading spokesperson for asbestos victims, is certain that "the number of people affected by asbestos-related diseases is not reflected by the number of court cases." This conclusion was also reached by Thomas Durkin in his 1994 US doctoral dissertation (Constructing law: comparing legal action in the United States and United Kingdom by TE Durkin, 1994). He found that there was a vast pool of uncompensated asbestos victims in the UK. Part of the reason for this failure to translate claims into legal actions was ascribed to plaintiff lawyers amongst whom there "was a marked professional distaste...for what was seen as the unseemly tactics of US lawyers." According to Durkin, legal action in the US resulted from a flow of trusted information through positive gatekeeping networks; in the UK legal paralysis was the result of negative gatekeeping organisations and networks blocking channels of communication. Up until the end of 1986, the ratio of asbestos-related civil actions in the UK compared to the US was 1:5 even though there were proportionally nearly four times as many cases of mesothelioma in the UK.
Reasons for the reluctance of UK claimants to take action against former employers, even when they have connected their health problems to past working conditions, include:
1) the long latency period of most asbestos diseases which means that many employers have gone out of business between the date of exposure and the date of diagnosis;
2) a reluctance to risk paying both sides' costs if the case were lost;
3) the prospect of paying a solicitor just to be told there was no case to answer;
4) loyalty to a former employer, from whom they might be receiving a small pension;
5) discouragement as a result of the DHSS (a government agency) rejecting a claim for industrial benefit;
6) the variable performance of different trade unions.
Occupational exposure to asbestos was first regulated in Britain by the Asbestos Regulations of 1931. Since that time, the onus has increasingly fallen on employers to provide safe working conditions. UK courts have ruled that this obligation was total; it does not matter if the plaintiff's disease (e.g. mesothelioma) was unknown at the time of exposure (pre-1960). In 1996 William Evans, a partner at a well-known defendants' law firm, stated: "there is no prospect in the future of arguing there was no negligence because the risk of mesothelioma was not foreseeable, it being sufficient for a finding that some pulmonary disease was foreseeable, which is probably true of any exposure to dust."
In general, UK asbestos settlements are influenced by the following factors:
1) The nature of the plaintiff's disease; mesothelioma warrants a larger payout than pleural plaques.
2) The plaintiff's age; the younger the victim, the more working years lost and consequently the greater the amount of compensation sought.
3) The nature of the plaintiff's employment; a company director will receive a larger settlement than an unemployed worker.
4) The resources and ability of the plaintiff's legal representation; a union-funded case handled by a specialist asbestos solicitor has a greater chance of receiving a large sum than a legal-aid case brought by a high street solicitor.
There is no central record of asbestos awards and no newsletter such as Mealey's which reports on this type of case. Useful sources of information are newsletters produced by law firms. An analysis of newsletters produced by the London law firm of Norton Rose from 1992-1996 is informative. Figures cited in these publications show: the average mesothelioma victim was 60 and received £98,127 ($158,660), the average asbestosis victim was 60 and received £67,082 ($108,465) and the average lung cancer victim was 65 and received £57,726 ($93,340). The largest number of claims related to pleural plaques/bilateral pleural thickening, where awards were often made on a provisional basis so that should claimants contract a more serious asbestos-related disease, they would be entitled to file more substantial claims later. In January, 1998 Personal Injury News produced by the law firm of Field Fisher Waterhouse cited the following cases: Eric Reid, an asbestos sprayer who died from mesothelioma in 1996 aged 54, received £200,000 ($334,100); Mr Smith, a forty-nine year old lagger with benign symptomless bilateral pleural thickening, received £59,895 ($100,050); the family of Mr Willenberg, a lagger who died from mesothelioma at age sixty-two in 1990, was awarded £35,000 ($58,500).
In February, 2000 the families of former seafarers Miller Jeromson and Peter Dawson won £157,794 ($258,845) and £113,356 ($185,950) respectively from the Manchester High Court for the mesothelioma deaths of their relatives. On March 23, 2000, the Court of Appeal increased two asbestos verdicts: the estate of Mrs Florence Base, a mesothelioma victim whose exposure to asbestos occurred whilst washing her husband's work overalls, received £50,000 ($80,135), while the estate of Keith Schofield, who died 1996 at the age of fifty-seven, received £114,000 ($182,710). Other asbestos verdicts this year include that in the case of Plaintiff F vs. British Gas which was settled when the defence offered £130,000 ($210,000) for the mesothelioma victim's death. The defence settled the lawsuit brought by Mr. T, a fifty-two year old businessman with mesothelioma, against his former employers for £500,000 ($820,200).
Until the 1990s, the issue of environmental asbestos exposure was largely side-stepped by UK asbestos companies. In June, 1993 Cape plc made an out of court settlement of £45,000 ($66,400) with Gordon Prior who claimed that he contracted mesothelioma living next door to Cape's East London asbestos factory. On the whole T&N plc successfully resisted environmental exposure claims until a landmark decision was handed down in October, 1995 in the case of Hancock and Margereson vs. J.W. Roberts Ltd., a fully-owned subsidiary of T&N plc. At that time Michael Napier, President of the Association of Personal Injury Lawyers, said: "in view of the findings in this judgement, it would have been appropriate to seek an award of exemplary damages if only this was permitted by law." June Hancock, who contracted mesothelioma having lived and played near the asbestos textile factory in Canal Road, received damages of £65,000 ($105,000); the widow of mesothelioma victim Eric Margereson received £50,000 ($81,000).
Although there are no government statistics on asbestos case numbers and verdicts, anecdotal evidence is overwhelming. Generally speaking, Britain is becoming a more litigious society; specifically, people are more inclined to resort to law to obtain compensation for asbestos diseases. There are many possible explanations for this:
1) there are more asbestos victims in the UK;
2) more patients with asbestos-related diseases are being accurately diagnosed;
3) doctors, nurses and social workers are becoming aware that these patients have the right to claim compensation and are passing this information on;
4) the removal of restrictions on solicitors' advertising and the advent of 'no win-no fee' increases access to legal representation;
5) the adoption of a more proactive attitude by some UK solicitors is stimulating the filing of legitimate claims;
6) public awareness of the link between asbestos exposure and the incidence of disease has been increased through media campaigns and educational seminars run by the Health and Safety Executive and trade unions;
7) the number of regional asbestos victim support groups increased dramatically during the 1990s with lottery money and donations being used to hire full-time workers at several groups;
8) telephone help-lines run by victim support groups, trade unions, solicitors and a cancer charity have raised the profile of personal injury cases.
Compensation for asbestos diseases is one of the issues which will be examined at plenary sessions and in workshops at the Global Asbestos Congress in Osasco, Brazil in September, 2000. This unique meeting will bring together people whose lives have been affected by asbestos to examine national experiences, identify common problems, discuss responses and pinpoint effective solutions. Lawyers from Australia, Brazil, France, the UK, the USA and elsewhere will discuss strategies, multinational claims, asbestos defendants, jurisdictional problems and other aspects relating to compensation issues.
July 7, 2000