Dying asbestos victims fear new court challenge will slash payouts
A landmark legal challenge starts in the House of Lords on 13 March in an attempt to limit payouts for the most deadly form of asbestos-related cancer.
Employers hope to overturn existing law by arguing that the cost of compensating mesothelioma sufferers should be apportioned between companies if a worker was exposed at more than one workplace. At present, full damages can be claimed against any company where there has been exposure and there is more than one defendant company.
Stephen Buckley, 52, an engineer from Dukingfield, Cheshire, is living on borrowed time. Two years ago he was given nine months to live when he was diagnosed with the invariably terminal cancer caused by asbestos. In 1968, at the age of 15, he left school to become an apprentice at the ICI plant in Hyde, near Manchester. 'I was just a lad when I started there and one of my first jobs was to strip the boilers down. Our overalls would be covered in this white dust but we never gave it a second thought,' he recalls. 'The air was heavy with it.'
Tragically, that deadly dust was asbestos. When Buckley began as an apprentice, he recalls having no safety gear - not even a mask. 'Safety wasn't an issue in those days. People used to say, "You'll be alright as long as you stay away from the blue".' This was the even more dangerous blue asbestos.
Every year, about 1,800 people in Britain die from mesothelioma, and that number is expected to peak at about 3,000 in 2020. Compensation is low, with many victims and their families receiving in the region of £150,000.
In the landmark Fairchild case four years ago, insurers attempted to refute claims. It was argued that the cancer could in theory be triggered by just one asbestos fibre, and so someone who had worked with asbestos, and had more than one employer, could not prove where they had got the disease. The insurers went on to argue that the responsibility could not be shared between them because cancer was an 'all or nothing' condition.
It was a battle that went all the way to the highest court, where the Law Lords ruled against the insurers. They held that any asbestos exposure that materially contributed to the disease added to the risk and caused it.
The latest legal challenge concerns three test cases (known as Barker v St Gobain Pipelines). In the lead case the widow, Sylvia Barker, was awarded £152,000 after her husband Vernon died of the cancer eight years earlier. The courts were told that between 1960 and 1968 he had been 'heavily, regularly and frequently' exposed to asbestos dust while working at the Shotton Steelworks on Deeside for John Summers and Sons (the French-owned St Gobain is the legal successor).
In a complete about-turn from the insurers' previous stance, it will be argued that if there is more than one employer, compensation should be split between them all.
The insurer Norwich Union is watching Barker closely. 'The case is about seeking clarity after Fairchild,' says Dominic Clayden, head of technical claims at NU. 'That case did not deal with apportionment of damages between multiple defendants.'
According to Anthony Coombs, a solicitor who specialises in asbestos disease cases, a ruling in favour of St Gobain could affect many of his terminally ill clients. 'If your job with one employer involved more than enough asbestos exposure to give you mesothelioma but you had also worked with asbestos for another employer that's gone bust, your compensation will be reduced,' he says. 'This may leave you with very little, after the benefits from the government are taken off.'
Michael Eason, a 62-year-old electrical engineer, died last April from mesothelioma. 'He was such a fit man, never smoked and never had anything wrong with him,' recalls his wife Barbara. 'He retired at the beginning of 2003 and was really looking forward to the future. He was hoping to be a Justice of the Peace.'
Barbara says her husband went to see his doctor complaining of 'a slight cough and some breathing difficulties'. The family was devastated to discover he had cancer. 'He went downhill so fast and the pain and suffering he went through was terrible,' she says. Eason died three months after he was first diagnosed.
More than 40 years before, he had briefly worked in a number of places where he could have been exposed, including a power station and a chemical works. Barbara and her son, Paul, 34, have received no money from Michael's employers and are concerned as to how this week's challenge might affect any payout.
'Mike used to say he knew he wouldn't benefit from any compensation but he would be happy if Paul and I could. All I really want is my husband back,' she says. 'But I do think somebody has to pay because, of all the cancers people get, this is one that could have been avoided.'
Anthony Coombs reckons that the ruling could affect at least half of his clients suffering from mesothelioma. He estimates that a fifth of all sufferers cannot sue at all because their employers have gone bankrupt and no one can find the insurers, and that almost a third cannot sue all their employers.
'It is unfair to punish the victim when the insurers who took the premiums are still there hiding behind the employers that have gone bust,' Coombs reckons.
Stephen Buckley had not had a day off work in 12 years before being diagnosed with mesothelioma two years ago. He immediately married Angela, his partner of 27 years, because both knew what he had in store.
'It is like being sentenced to death for something that happened to you years ago - in my case, when I was a teenager,' he says.
So far, he has received an interim payment of £70,000 from ICI but he is concerned about where the legal challenge will leave his wife after he dies.
'I don't know how much time I've got left to live, and this claim needs to be sorted out,' he says. 'Whenever I read about mesothelioma it is always about how much compensation costs and what the companies are going to do to cut the bill. I got this disease when I was 15 years old at work. I have always worked and I've never cost anyone a bean. There are times when people should just shut up and pay up.'
The unknown killer
Last Monday was Action Mesothelioma Day, marking the start of a year-long campaign to raise awareness about the deadly chest cancer that develops up to 40 years after exposure to asbestos.
According to new research by the British Lung Foundation, only 6 per cent of people in the UK know what the disease is, yet the cancer kills one person every five hours in the UK. This figure is set to peak over the next decade, with as many as 3,000 people dying from it every year.
The rising number of deaths from the condition is linked to the use of asbestos in the building industry up until the mid 1980s. The time between exposure to asbestos and developing mesothelioma can range from 15 to 60 years, with death coming within two years of diagnosis.
Employers hope to overturn existing law by arguing that the cost of compensating mesothelioma sufferers should be apportioned between companies if a worker was exposed at more than one workplace. At present, full damages can be claimed against any company where there has been exposure and there is more than one defendant company.
Stephen Buckley, 52, an engineer from Dukingfield, Cheshire, is living on borrowed time. Two years ago he was given nine months to live when he was diagnosed with the invariably terminal cancer caused by asbestos. In 1968, at the age of 15, he left school to become an apprentice at the ICI plant in Hyde, near Manchester. 'I was just a lad when I started there and one of my first jobs was to strip the boilers down. Our overalls would be covered in this white dust but we never gave it a second thought,' he recalls. 'The air was heavy with it.'
Tragically, that deadly dust was asbestos. When Buckley began as an apprentice, he recalls having no safety gear - not even a mask. 'Safety wasn't an issue in those days. People used to say, "You'll be alright as long as you stay away from the blue".' This was the even more dangerous blue asbestos.
Every year, about 1,800 people in Britain die from mesothelioma, and that number is expected to peak at about 3,000 in 2020. Compensation is low, with many victims and their families receiving in the region of £150,000.
In the landmark Fairchild case four years ago, insurers attempted to refute claims. It was argued that the cancer could in theory be triggered by just one asbestos fibre, and so someone who had worked with asbestos, and had more than one employer, could not prove where they had got the disease. The insurers went on to argue that the responsibility could not be shared between them because cancer was an 'all or nothing' condition.
It was a battle that went all the way to the highest court, where the Law Lords ruled against the insurers. They held that any asbestos exposure that materially contributed to the disease added to the risk and caused it.
The latest legal challenge concerns three test cases (known as Barker v St Gobain Pipelines). In the lead case the widow, Sylvia Barker, was awarded £152,000 after her husband Vernon died of the cancer eight years earlier. The courts were told that between 1960 and 1968 he had been 'heavily, regularly and frequently' exposed to asbestos dust while working at the Shotton Steelworks on Deeside for John Summers and Sons (the French-owned St Gobain is the legal successor).
In a complete about-turn from the insurers' previous stance, it will be argued that if there is more than one employer, compensation should be split between them all.
The insurer Norwich Union is watching Barker closely. 'The case is about seeking clarity after Fairchild,' says Dominic Clayden, head of technical claims at NU. 'That case did not deal with apportionment of damages between multiple defendants.'
According to Anthony Coombs, a solicitor who specialises in asbestos disease cases, a ruling in favour of St Gobain could affect many of his terminally ill clients. 'If your job with one employer involved more than enough asbestos exposure to give you mesothelioma but you had also worked with asbestos for another employer that's gone bust, your compensation will be reduced,' he says. 'This may leave you with very little, after the benefits from the government are taken off.'
Michael Eason, a 62-year-old electrical engineer, died last April from mesothelioma. 'He was such a fit man, never smoked and never had anything wrong with him,' recalls his wife Barbara. 'He retired at the beginning of 2003 and was really looking forward to the future. He was hoping to be a Justice of the Peace.'
Barbara says her husband went to see his doctor complaining of 'a slight cough and some breathing difficulties'. The family was devastated to discover he had cancer. 'He went downhill so fast and the pain and suffering he went through was terrible,' she says. Eason died three months after he was first diagnosed.
More than 40 years before, he had briefly worked in a number of places where he could have been exposed, including a power station and a chemical works. Barbara and her son, Paul, 34, have received no money from Michael's employers and are concerned as to how this week's challenge might affect any payout.
'Mike used to say he knew he wouldn't benefit from any compensation but he would be happy if Paul and I could. All I really want is my husband back,' she says. 'But I do think somebody has to pay because, of all the cancers people get, this is one that could have been avoided.'
Anthony Coombs reckons that the ruling could affect at least half of his clients suffering from mesothelioma. He estimates that a fifth of all sufferers cannot sue at all because their employers have gone bankrupt and no one can find the insurers, and that almost a third cannot sue all their employers.
'It is unfair to punish the victim when the insurers who took the premiums are still there hiding behind the employers that have gone bust,' Coombs reckons.
Stephen Buckley had not had a day off work in 12 years before being diagnosed with mesothelioma two years ago. He immediately married Angela, his partner of 27 years, because both knew what he had in store.
'It is like being sentenced to death for something that happened to you years ago - in my case, when I was a teenager,' he says.
So far, he has received an interim payment of £70,000 from ICI but he is concerned about where the legal challenge will leave his wife after he dies.
'I don't know how much time I've got left to live, and this claim needs to be sorted out,' he says. 'Whenever I read about mesothelioma it is always about how much compensation costs and what the companies are going to do to cut the bill. I got this disease when I was 15 years old at work. I have always worked and I've never cost anyone a bean. There are times when people should just shut up and pay up.'
The unknown killer
Last Monday was Action Mesothelioma Day, marking the start of a year-long campaign to raise awareness about the deadly chest cancer that develops up to 40 years after exposure to asbestos.
According to new research by the British Lung Foundation, only 6 per cent of people in the UK know what the disease is, yet the cancer kills one person every five hours in the UK. This figure is set to peak over the next decade, with as many as 3,000 people dying from it every year.
The rising number of deaths from the condition is linked to the use of asbestos in the building industry up until the mid 1980s. The time between exposure to asbestos and developing mesothelioma can range from 15 to 60 years, with death coming within two years of diagnosis.
posted by Chris Placitella | 10:27 AM
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