Asbestos victims still lose out

Comments by Nancy Tait MBE, Occupational and Environmental Diseases Association, on Fairchild and the government's proposed "solution here

Greater Manchester Asbestos Victims Support Group press release: Byers Announces Interim Measure For Asbestos Victims In Fairchild Case here

 

 

 

Comments by Nancy Tait MBE, Occupational and Environmental Diseases Association, on Fairchild and the government's proposed "solution

STEPHEN BYERS' FAIRCHILD 'SOLUTION'

As I point out at every possible opportunity, DTLR (Department for Transport, Local Government and the Regions) can only make payments under their 1979 Compensation Scheme, if DSS has awarded industrial disablement benefit for one of the prescribed asbestos diseases. Their Scheme provides only between £8,573 at age 77 and £55,158 at age 37.

Dependant widows receive between £1,992 if their deceased husband was aged 67 or over; £7,745 if he was aged 60.

No compensation is paid for pleural plaques because DSS will not recognise them as an industrial disease.

Environmental and household contact cases cannot apply to DSS so cannot receive compensation under the Scheme.

DSS refuses any benefit to more than 50% of those who apply. As you can see from the pages that follow, I drew attention to their difficulties by letter in January and in a note prepared for the 12 February meeting of the All Party Group Asbestos Sub-Committee.

I do not welcome Mr Stephen Byers' proposal; it may provide their Lordships with a solution but many ordinary people will be denied enough to live on.

Nancy Tait MBE Hon DUniv

NT/MW January 2002

Mr M Clapham MP
House of Commons
Westminster
SW1A OAA

I thought the Adjournment Debate was very useful, especially as so many MP's attended at such an early hour. I look forward to seeing the Hansard report.

You said a debate in the Commons is needed. How can I and OEDA help to secure this?

I enclose correspondence from Eric Avebury which raises with Nick Brown and Lord Clement-Jones, the Appeal Court reference in Fairchild, to the 1979 Compensation Act.

I helped to secure the extension of the 1979 Act, which was originally intended to benefit only slate quarriers, to cover asbestos workers so have followed it closely over the years and would like to be involved in any future discussions.

The statistics compiled by OEDA, to which you referred during the Debate, are important in this context as showing how few of those affected by asbestos-related cancer could claim under the 1979 Scheme because only those awarded industrial disablement benefit by DSS receive payment. Because so few receive industrial disablement benefit, unless there is reform of DSS special medical boards, many will receive nothing. If benefit is awarded on a Consultant's report as you suggested in the debate, there should be a big increase in payments of industrial disablement benefit and this would then increase the number of payments made under the 1979 Act and the cost of the scheme to government and taxpayer.

If the sums paid are increased to reflect the amounts awarded by the Courts before Chester Street and Fairchild and the scheme is extended to cover those living near factories, the self-employed and household contacts, all possibilities raised during your Debate, the cost will be immense.

If the 1979 Scheme is not improved, many will receive only derisory payments. I enclose DLTR (Department for Transport Local Government and the Regions) tables, which show that payments to widows and dependants are very low.

Enc:

Nancy Tait MBE Hon DUniv

NOTE FOR ALL PARTY GROUP ASBESTOS SUB COMMITTEE

The difficulties they face are

1. Limited information in B A publications.

2. Benefits Agency Staff
Lack of information leading to delays and poor service. Some staff do not understand the 'prescription' requirements.

3. Special Medical Boards
Are they necessary ? One Board doctor told a mesothelioma
patient, so unwell that he was examined at home, that it was the doctor's responsibility to save government money. If a SMB Decision is delayed and the patient dies, Inquests cause delay. See also 'pathologists' below.

4. Hospitals
All the problems publicised recently, plus MRSA. There are very few specialist Consultants. Patients may have to travel long distances.

5. Pathologists - Inquests and Court Cases
i) A few pathologists are becoming aware that Asbestos
Bodies rarely form on chrysotile (white asbestos) fibres but no-one challenges the practice of looking for asbestos bodies using an optical microscope.

ii) Even worse, it appears to be a matter of individual preference as to the number of asbestos bodies required to support a diagnosis of asbestos-related disease.

iii) Some recommend counting fibres rather than bodies but
even electron microscope fibre counts are unreliable. This has been accepted by the European Respiratory Society, the Helsinki Meeting of International Experts & researchers in USA.

6. Balance of Probabilities
Coroners, Special Medical Boards, Appeal Tribunals and
solicitors fail to reach decisions on a 'balance of probabilities'. They frequently ignore clinical evidence, history of exposure, x-rays and scans and accept only a pathologist's opinion as to whether or not there were enough 'asbestos bodies'. Almost invariably, when there is evidence both for and against a diagnosis of industrial disease, the evidence against the diagnosis is accepted.

7. Staining Techniques
The diagnosis of mesothelioma may be challenged at post mortem although it is recognised that there is no infallible method of distinguishing between, for example, mesothelioma, and adenocarcinoma.

8. Chemotherapy & Radiotherapy
It is also recognised that chemotherapy and radiotherapy can produce changes in lung and tumour tissue which may lead to mis-diagnosis.

9. The importance placed on 'pecking order' in the medical
profession prevents progress and causes injustice.

Conclusion Many solicitors and doctors are unaware of the above long- standing problems because they do not attend Inquests or DSS Appeal Hearings. Fairchild, Chester Street, T & N etc. are additional, serious issues, but not the only ones.

Nancy Tait

Press release: Greater Manchester Asbestos Victims Support Group

Byers announces interim measure for asbestos victims In fairchild case

Stephen Byers', Secretary of State for the DTLR, announced on the 13th February that he is extending the Pneumoconiosis etc (Workers' Compensation) Act 1979 to cover mesothelioma victims affected by the Fairchild decision. He said that this was an interim measure only and that discussions are taking place about a longer-term response to the Fairchild judgment.

The Greater Manchester Asbestos Victims Support Group welcomes any early, interim payment to mesothelioma sufferers: many will have only a few months to live. But mesothelioma victims and bereaved families don't want this
payment to allow the employers and insurance companies to escape liability.

Pat Shepheard, whose husband died from mesothelioma of the peritoneum, in 2000, says of the announcement:"I welcome this payment to victims and their families but companies must not be allowed to escape blame for what they did. I, like so many others have had to watch my husband die of this terrible disease. I now have to watch insurance companies make huge savings and guilty employers walk away scott-free. The DTLR payment can only be a welcome interim payment. Only a reversal of the Fairchild judgment will bring us any justice."
Asbestos victims want assurances that the DTLR payment does not allow employers and their insurers to escape liability:

• This announcement should not be seen as a green light for the House of Lords to uphold the Fairchild decision. Upholding the High Court decision in the Fairchild case, The Court of Appeal said in their judgment that unless the government or the insurance industry stepped in a "major injustice" would be caused. This announcement should not be seen as a green light for the House of Lords to uphold the Fairchild decision and wash their hands of this injustice, thinking that this interim measure or a longer-term compensation scheme, paying far less than that currently available through the courts will suffice: Payment under the Pneumoconiosis Act

(a) The Pneumoconiosis Act pays a derisory amount of money to mesothelioma victims. The average payment to mesothelioma victims under the Pneumoconiosis Act is approximately £12,000 compared to an average £60,000 through the courts.

(b) For the husband or wife or dependant of someone who has died from mesothelioma the average payment under the Pneumoconiosis Act is less than £3,000 compared to £60,000 through the courts.

• Claimants receiving interim relief must be able to claim through the courts in due course. Those affected by Fairchild submitting a claim under the Pneumoconiosis Act will have to confirm that the judgment prevents them from pursuing a claim through the courts. This must not mean that such a person will not, at a later date, be able to make a claim through the courts.

• Any longer-term measure must pay compensation equivalent to that payable through the courts. Government no-fault compensation schemes in other countries pay far less compensation than that achievable through the courts. It would be a major injustice if the Fairchild judgment resulted in the payment of small levels of compensation to mesothelioma victims

• The Fairchild judgment must be overturned to prevent its
application to other occupational diseases. Already, solicitors acting for insurance companies are challenging payment for other asbestos related diseases under Fairchild and are considering applying Fairchild to occupational diseases such as asthma.

The problem for sufferers of occupational diseases is the irrational judgment itself. Interim or longer-term government measures in respect of mesothelioma victims will not prevent the far-reaching and damaging effects of Fairchild on victims of other occupational diseases.

We remain adamant that full compensation must be paid to mesothelioma sufferers. Small amounts of money payable under the Pneumoconiosis Act can only be considered an interim payment. Our fear is that this interim payment will be the standard payment to mesothelioma victims for a very long time and a longer-term solution will let the insurance industry off the hook at the expense of the tax payer and asbestos victims.

Tony Whitston , Greater Manchester Asbestos Victims Support Group, says: "The problem with no fault systems like this, is that no fault means no blame. These companies made millions, lobbied for and won poor asbestos exposure standards, knowingly exposed their workers to risks and now would have us believe that they are victims. Why should a family lose a breadwinner and the company and its directors that committed this crime lose nothing"

We welcome proposals to make interim payments but we are adamant that full compensation must be paid to mesothelioma victims.

1. Mesothelioma is a fatal tumour of the lining of the lung almost exclusively caused by mesothelioma. It is known to be caused by far less exposure to asbestos fibres than other asbestos related diseases.

2. The Court of Appeal upheld the Fairchild judgment that a
mesothelioma sufferer who was exposed to asbestos dust by two or more negligent employers would not have to pay compensation because it is not possible to say whose the 'fatal fibre' was.

3. This judgment has been condemned by medical experts who say that changes to a cell, causing mesothelioma, cannot be explained simply by the effect of a single fibre out of many millions of fibres. The judgment has been condemned in Parliament and Dr Alan Whitehead has likened this judgment to 6 thugs kicking someone to death and all escaping liability because no one could say whose boot had delivered the fatal blow.

4. The House of Lords is to hear appeals of Fairchild and related cases on 22-24 April.