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Compensation: Righting the Wrong

"At the Asbestos Victims Support Group we offer victims emotional and practical support. Asbestos victims do not want charity or sympathy. They have been denied the right to a happy and healthy retirement. They have been disabled by a material they were told was safe until quite recently by Government Factory Inspectors. That same material is now killing them. Victims often feel a great deal of bitterness. They find it extremely difficult to gain a DSS pension. Legal aid changes have made it increasingly difficult to obtain civil compensation without risking life savings or family homes. Archive material now emerging from the vaults of Manchester-based Turner and Newall shows that the company was aware in 1954 of the health effects of asbestos exposure. This coupled with the realisation of having a terminal illness, and the perceived preferential treatment of AIDS victims, has led asbestos victims to feel a great deal of anger and bitterness towards society." Charlie Kavanagh, Liverpool Asbestos Group.

Gaining compensation for victims is financially and morally important. Financially, it is important for victims to know their families are financially secure after their death. Morally it can never make up for the loss of health, but gaining compensation is seen by the victims as a recognition by society of a wrong done to them.

Asbestos victim support groups

There is no NHS specialist advice service for asbestos victims or their families. There are some well established organisations and projects which fill this gap on a voluntary basis. This means that although they may get some grant aid from local authorities, health authorities, and some of the larger charities, funding is insecure, resources are scarce and the workers providing the advice are volunteers, with occasional help from paid staff. Quite often the advice workers are themselves ill with asbestos diseases.

John Ellis, Chairman of the Liverpool Asbestos Group, says, "Asbestos family members are often told by the medical profession there is nothing that can be done for the victim. We are often asked by family members of newly diagnosed victims how long has s/he got, how can I make things easier? Sadly we have not come across a single asbestos victim or family of a victim who has been offered any kind of counselling, before or after the victim's death. We have not come across a victim's family told about the consequences of living with someone who has a terminal and disabling disease."

Clydeside Action on Asbestos pioneered asbestos victim support work in the UK, as did SPAID and Dick Jackson through the Hull Asbestos Action Group. Other groups have been set up in Manchester, Merseyside, and Sheffield. The Merseyside group have produced a short pamphlet which groups elsewhere could use to raise local funds for this work (see the Introduction for details of how to contact groups).

The Economist recently reported that although the death rate for asbestos diseases is higher in the UK than in the US, Americans are much more likely to sue for compensation. The article quoted a study that suggested American doctors, lawyers and trade unions are all more proactive in encouraging victims to sue for damages. It also noted that where there are well organised networks of lawyers and doctors on this side of the Atlantic as in Glasgow and Belfast then there have been more claims.

THE COMPENSATION MAZE

There are three types of compensation:

1 Department of Social Security (DSS) benefit (administered by the Benefits Agency), the government-run "no fault" compensation scheme, which pays a weekly pension

2 Common law compensation, also known as damages

3 The Pneumoconiosis etc (Workers' Compensation) Act 1979, often known as "the 1979" Act, a state damages scheme which provides lump sum payments when former employers or their insurers are bankrupt or cannot be traced

Obtaining any type of compensation is fraught with difficulties. Genuine cases can and do fail for want of the right advice. It is essential to get specialist help from the organisations we have listed, or trade union solicitors who have a good track record on asbestos.

Workers

Victims who have worked with asbestos should claim DSS benefit. They should sue their employer(s) for damages, and should try to do so within three years of knowing about the start of the illness. If three years are up it may still be possible to start an action: a good solicitor can probably help. As soon as you become aware of the illness seek help. If it is likely that it is going to be extremely hard to trace former employers, the victim should make a claim under the 1979 Pneumoconiosis Act. The 1979 Act compensation is an alternative to common law damages, however, and payments are usually much smaller. A good common law settlement is preferable.

Failure to obtain DSS benefits does not rule out common law damages. Victims can make claims again at a later stage when the disease has progressed.

All workers should contact their union for help. Keep up your membership when you retire. This is frequently at a concessionary rate and sometimes completely free. Even if you think your membership has lapsed, contact your former branch secretary or your union's Head Office and check the position.

Low fibre levels: Gerard Bray Versus Tenmat Ltd

In this case Tenmat argued they were not responsible for the death of Gerard Bray, who died of mesothelioma in 1991, because the initial tests on his lungs when he died showed relatively low levels of asbestos fibres. But then electron microscopy revealed much higher figures. Tenmat said these levels were low and claimed that the mesothelioma was caused by environmental exposure or had an unknown cause. Gerard had worked as a painter for a firm who used to paint the Tenmat premises each year in the summer shut-down. He was not, therefore, constantly exposed to asbestos dust, but exposed he certainly was as his lungs bore witness. The judge described Tenmat as "the vaunted kings in the asbestos realm." He did not agree that Tenmat neither knew nor could be expected to know of the risk of mesothelioma from exposure to asbestos dust in their factory in the early 1960s. Damages of £29,495 were awarded to Gerard Bray's estate.

Other victims

Exposure to asbestos does not just take place at work. But, in the UK it is very difficult for non-employees to gain compensation for asbestos-related illness. The DSS schemes do not apply to non-employees.

However, the situation may have altered as a result of an important test case in which June Hancock and Evelyn Margereson (on behalf of her deceased husband) sued JW Roberts Ltd and T&N plc. The action arose from environmental exposure that allegedly occurred from the 1930s onwards. Mrs Hancock and Mr. Margereson lived near an asbestos textile factory in the Armley area of Leeds. Their lawyers argued that the factory owners had knowledge of the dangers well before the mid-1950s, the currently accepted date of guilty knowledge (i.e. knowledge which if acted upon would have prevented the illness). Mrs Hancock was awarded £65,000 and Mrs Margereson £50,000 in damages and this could open the way for hundreds more claims. The companies have said that they will appeal. They were condemned by the judge who said their attitude "reflected a wish to contest these claims by any means possible legitimate or otherwise. The defendants have remorselessly persisted in making bad points, apparently simply to obstruct the defendants' road."

The Compensation Recovery Unit

The government has managed to add financial insult to injury. The Compensation Recovery Unit (CRU) claws back benefits paid to asbestos victims who win damages of more than £2,500 through the civil courts. One Glasgow man had all but £2,000 of a £30,000 payout snatched by the CRU. The Unit recovered £81.9 million in 1994 and even pursues victims beyond the grave. Last year, the CRU clawed back benefit from 170 deceased asbestos victims.

The DSS industrial injuries scheme for asbestos

Industrial Injuries Disablement Benefit is payable for four prescribed asbestos diseases to people whose jobs have involved working with asbestos, or their dependants. The Benefits Agency administers it. The self-employed are not covered by the scheme. The points to be taken into account in making a claim are as follows:

 1 Form B1 100, the application form for Industrial Disablement Benefit, must be filled in first

2 The examination: the Special Medical Board (SMB), the DSS' medical staff, send the applicant for X-ray and lung function tests and a clinical examination

3 The assessment: in addition to deciding if a person has a prescribed disease, the SMB decides a) how disabled a person is considered to be, expressed as a percentage and b) from what date the disease began.

These two factors determine how much benefit a person receives.

Appeals against a negative decision are made at a Medical Appeal Tribunal (MAT). This consists of a lawyer and two chest consultants. They examine the applicant and give reasons for the final decision and diagnosis.

The claimant should obtain an independent consultant's report. Support groups can recommend friendly consultants. The costs of this may be borne by the trade union if it is involved or by legal aid. Medical records from the GP and hospital case notes are included in appeal papers whether they support the claim or not.

Current prescribed asbestos diseases

D8 primary carcinoma of the lung where there is accompanying evidence of asbestosis and/or bilateral diffuse pleural thickening; prescribed April 1 1985

D9 bilateral diffuse pleural thickening; prescribed April 1 1985

Current prescribed occupations

Between 1980 and 1990 only 172 extra cases of asbestosis were allowed following SMB hearings (Table 1). There is a glaringly obvious problem with Table 1. Lung cancers caused by asbestos outnumber mesotheliomas by at least two to one, by the HSE's own estimates. Yet very few receive benefit in this category.

TABLE 1: New cases of prescribed disease as assessed by SMB's^a

Prescribed Disease 1980 1985 1990 1993

D1 Asbestosis^b 144 273 306 418(16)^d

D3 Diffuse mesothelioma 245 462 608(19)

the lung with D1, D8^c 8 58 72(2)

D9 Bilateral pleural thickening 61 146 172(2)

^cPreviously classified as lung cancer in asbestos workers

^dFigures in parentheses show the number of females.

Benefit levels for industrial disability benefit

For most industrial disabilities this benefit is only paid if disablement is assessed at 14% or more for claims lodged after 1 October 1986. For D1, pneumoconiosis including asbestosis, and D3, diffuse mesothelioma, benefits are still paid if disability is assessed below 14%. In fact under a special provision a person suffering from pneumoconiosis qualifies for a pension at the 10% rate even if they have no discernible respiratory disablement arising from the disease.

In practice for both the cancers, mesothelioma (D3) and lung cancer (D8), once the SMB has agreed that the victim did work in the right industry or, for lung cancer, has another prescribed asbestos illness, s/he is usually assessed as being very disabled. S/he is almost always terminally ill. For mesothelioma, the average assessment is around 98% and for asbestos lung cancer 83%.

Asbestosis does not, however, attract the higher levels of benefit. The 1993 asbestosis figures show 29% were assessed as 10% disabled or less, 66% fell in the mid-range between 20-70% disabled, and only 4% were assessed in the top three percentage bands over 80%.

Bilateral diffuse pleural thickening (D9) is compensated if disability is assessed at 14% or more. Claims are rejected if damage is on one side only or if it is not considered to be diffuse, regardless of how disabled a person might be. Clydeside Action on Asbestos have found that although 65% of their members have pleural thickening and 47% have bilateral pleural thickening, only 9% are successful in satisfying the criteria for D9. 62% of victims diagnosed with D9 are assessed as being disabled by less than 14%, and therefore do not receive any benefit whatsoever.

Benefit levels are low, ranging up to £95.30 per week for total disability in 1995-96.

Special needs

Useful precedents have been set by a Glasgow worker with asbestosis who has received the costs of special needs and adaptations and the family of a National Power project manager received £280,000 compensation following his death at age 52 from mesothelioma.

Problems in obtaining benefit

The Application Procedure: you must use the right medical term, even though your doctor might just have said "you've got asbestos in your lungs" Satisfying the DSS Criteria: pleural plaques, and a great deal of pleural thickening do not currently qualify. Lung cancer qualifies only with another prescribed disease. The Industrial Injuries Advisory Committee is reviewing which asbestos illnesses are prescribed. This might mean more people will eventually obtain benefits. Evidence had to be submitted by the end of July 1995 Prescribed Occupations: some workers have problems proving they worked with asbestos. Providing Witnesses: after 20 or more years this is not easy The Delay: some victims die before their claim is settled

Clydeside Action on Asbestos analysed 412 DSS claims made from 1986 onwards and found 88% had some form of asbestos-induced lung damage, according to one or more of the following sources: hospital case notes, independent consultants report, GP, SMB, or MAT. Less than half this figure, 41%, were compensated for their suffering by the DSS and received some benefit.

Sorry: only ill on one side

Margaret worked as a French polisher on several ships for almost five years, where she was often exposed to asbestos dust. Her husband was also employed in the shipyards and he died of mesothelioma due to asbestos exposure, as did her brother. A few years ago, she began to get pains in her chest and became increasingly short of breath. An X-ray revealed that she had extensive pleural thickening on the right-hand side, secondary to asbestos exposure. Margaret applied for Industrial Disablement Benefit but was rejected on the grounds that she had "unilateral diffuse pleural thickening" and that it had to be bilateral in order to qualify. Margaret applied again a year later because she knew her condition had worsened. This time she was told she did have bilateral pleural thickening, but again benefit was refused because it was only "diffuse"' on the one side.

Prescribed occupations

Even when mesothelioma has been diagnosed some people still have difficulty obtaining benefit. Occupations refused Industrial Disability Benefit include: plumber, secretary, bus cleaner and teacher. Women are particularly likely to have problems. Joanna Lenaghan in Victims Twice Over says, "I am concerned that an occupation so obviously involving exposure to asbestos as plumbing should ever have been questioned. I suspect that this may be due to the fact that many people now working in DSS offices are young, and unfamiliar with the world of labouring and the kind of exposure different occupations may involve, and instead rely on the unhelpful regulations."

Providing witnesses

Asbestos diseases generally take 10-50 years to develop. If the company the applicant worked for has ceased to trade, the DSS requires witnesses to the fact that an applicant worked there. Failure to provide witnesses means failure to receive benefit. Often workmates have moved, died, or the applicant cannot remember details from the past. The support groups can help trace witnesses. But the requirement is unduly bureaucratic and cruel when the applicants are often very ill.

Two months before he died of mesothelioma, Maurice completed his form for Industrial Disability Benefit. His wife Annie had to deal with the claim after his death, but as he had provided the DSS with a full work history and his death certificate confirmed mesothelioma, the claim should have been straightforward. It was not. Annie was asked to provide witnesses to the fact that he worked in the shipyards between 1943 and 1950. 50 years later she was asked to provide information about a time when she did not even know her husband. This was impossible and therefore benefit was refused. Fortunately Clydeside Action on Asbestos was able to help provide witnesses and 14 months after the first application Annie received benefit backdated to three months before Maurice died.

The Pneumoconiosis etc (Workers' Compensation) Act 1979

 Often known as "the 1979" Act, this provides for lump sum payments to victims of the prescribed diseases who cannot claim compensation through the courts because former employers are no longer in business, or if they are still trading, there is no realistic chance of obtaining damages from them. Dependants of sufferers who have died can also claim payments.

Claimants must qualify for Industrial Injuries Disablement Benefit and in general this also applies for a dependant to be eligible. But claims should be made as soon as people become aware that they may have one of requisite diseases; there is no point in waiting until benefit has been awarded.

Payments have ranged from £1,766 to £50,173 up to July 1995; they are updated periodically. In general 75% of applicants are successful. Typical payments are shown in Table 2

TABLE 2 Typical payments (£) under the "1979 Act"

Age 10% Disability 50% Disability 100% Disability

37 or under 20,018 44,327 49,093

50 10,654 32,792 37,940

65 2,742 8,080 13,537

Common law compensation or civil claims

Victims must establish that their condition was caused by their work and that was due to negligence on the part of their employers or someone else. Some test cases concern environmental exposure.

Anyone suffering from an asbestos-related condition should immediately seek legal advice from solicitors specialising in this field of work. When a victim has already died a claim may be pursued by dependants.

Trade union members should seek assistance from their union who may support a case for compensation and ensure it is placed in the hands of specialist lawyers. Unions play a crucial role in providing access to the law for ordinary working people. This role cannot be overestimated.

Legal aid

In 1991 the government announced that legal expenses paid to victims of personal injury or an occupational disease were to be limited even if they win their claim. In 1995 the proposals were finally clarified: cash limits were introduced for the first time. Anyone with a good case who passes the means test will no longer be entitled to legal aid as a right. If demand exceeds the budget for a region, funding may not be available for all winnable cases.

Legal aid is still available to pursue asbestos related claims, but the financial position of the sufferer may prevent them from meeting the tough financial eligibility requirements. Roughly speaking you have to be eligible for income support to get legal aid; this means you must have hardly any savings and no industrial disability benefit and associated allowances.

Time limits

Proceedings should generally begin within three years of the date when the victim first knew or ought to have known that they were suffering from an asbestos-related condition. In certain circumstances this time limit can be extended but delay does make investigation of a claim more difficult. Courts have discretion to extend the three year time limit unless the employer has to prove that s/he would be prejudiced if this were to happen. If the claim is not the first against the company, which is frequently the case, that in itself helps persuade courts to extend the three-year limit. Basically anyone who has had an asbestos-related condition for three years or more should not be put off from seeking legal advice, but should do so immediately.

Defunct companies

If you know that your employer has long gone out of business, or otherwise ceased to exist, do not be put off making a civil claim. Good solicitors with experience of asbestos work might still be able to help get damages.

Final settlements

People with severe conditions, whose death is imminent, will usually receive lump sum damages as a once and for all settlement. Such damages include compensation for pain, suffering and disability, past and future, financial losses, for example loss of wages, and costs of nursing care.

Provisional damages

Less serious cases, for example, pleural plaques or pleural thickening, are usually dealt with by an award of provisional damages. This award gives the individual compensation for the condition and anxiety caused, especially the anxiety of knowing they are at greater risk of a fatal illness, and for financial losses already incurred and anticipated, on the basis that there is no significant deterioration in the condition. This type of settlement, however, allows another claim to be made in the future if lung cancer or mesothelioma develops.

LUNG CANCER BATTLE

Joan Dodds of Wallsend fought a five-year battle to prove her husband John died because of exposure to asbestos. She eventually received an out-of-court settlement of £54,000 with legal costs in 1991. John had worked as a marine fitter with four different shipbuilders and died aged 62 of a combination of asbestosis and lung cancer. He had told his son David to ensure a post-mortem examination was carried out when he died. Damages were sought from all four employers.

In the past fitters made snowballs out of asbestos: no warnings of the dangers were ever given. David Dodds has subsequently been very active in fighting to prevent asbestos diseases setting up Tyneside Hazards Group and acting as MSF Regional Safety Officer for many years.

Compensation for smokers

Smokers with a history of working with asbestos should not be not be put off from making a claim. Mesothelioma, asbestosis, pleural plaques and thickening are caused by asbestos, not by smoking (or nicotine). Lung cancer is caused by both and is more problematic. A medical expert is likely to estimate the level of disability caused by asbestos and that caused by smoking (for all the diseases). Claims for smokers may be more difficult to resolve but should still be made.

George Guildford

George worked for an asbestos company from 1957 to 1962 and from 1969 to 1983. At first as a driver, he loaded and unloaded lorries, but in the 1970s he cut asbestos sheets in the open air using a hand saw. He was a smoker but until 1982, when he started to lose weight, he was fit and healthy. By September 1983 he had died of lung cancer. The DSS pneumoconiosis medical panel reported there was no evidence of asbestosis although occasional asbestos bodies were present. From this the DSS and consultants for the asbestos company concluded that cancer was due to smoking and that exposure to asbestos was too slight and too recent to have caused cancer. Other consultants disagreed. Specimens of his lungs were sent to SPAID for electron microscopy. This revealed clumps of brown and white asbestos and very high levels of fibres. The evidence for asbestos exposure was then accepted by the courts who ruled that his cancer was caused by asbestos and not by smoking.

Inquests and coroners' courts

The coroner's inquest is often the only place where the circumstances of a person's death are made public. It can be traumatic for relatives and friends, but for many it is an important part of the grieving process and the evidence presented is important in compensation claims and the fight for justice. It is important to have a good solicitor to ask the right questions or to be very well prepared.

Asbestos inquests

Dick Jackson attended many asbestos inquests and developed a relationship with the Hull Coroner so that the Coroner's Office notified him of all the possible asbestos-related deaths. If there was any doubt, the case would be adjourned, so that Dick could investigate the person's history and search for a link with asbestos. He had several examples where the verdict was changed from "natural causes" to death from an industrial disease. One such verdict was changed in 1989. This was the case of 67-year old Ernest Clark, who died of mesothelioma. He had cut up asbestos sheets by machine saw in the 1970s. It is important for the records that such deaths are not said to be "natural" mesothelioma.

In October 1993, Dick's work led to the Hull Coroner Peter Gladwin calling for the banning of asbestos. It came after the inquest on docker Harry Dinsdale and was reported in the local paper. Dick said, "The Coroner must be sick of the number of asbestos cases which keep going through his court." Sometimes coroners will put victims' families in touch with solicitors, if they are not already represented at the inquest, especially when their relative has died from mesothelioma. Other asbestos support groups have developed their own links with the local Coroner's Court.

The post mortem

If a relative dies of an asbestos-related disease, the Registrar should be told of this with and should refer the case to a Coroner, who will order a post-mortem (PM). In many cases, the family do not understand the purpose of the PM, nor is it explained to them. Waiting for the PM results will delay funeral arrangements. It is a natural for the family to want to get everything over with quickly and sometimes they refuse a PM. However, this will go against them in the courts if they later seek compensation. Registrars and other doctors should strongly encourage relatives to agree to a PM.

The death certificate

The doctor signing death certificate in hospital is meant to ask if work contributed to the death. There is a box on the form to tick. In practice a lot of doctors do not tick the box because they do not read it. It might be better if there was a box saying work did not contribute to the death.

Domestic exposures

Many victims did not work in the asbestos industry. Their exposure was through their partners. Coroners do not treat such exposures in a uniform way. Elsie Hunt's inquest in October 1993 described her mesothelioma as "an industrial disease", Jean Apsley's in November 1994 was described as accidental death, and another woman's death, reported in The Times in August 1994, received an open verdict. All were said to have contracted mesothelioma through washing their husbands' clothes.

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