A Comparative Review of European Asbestos
Compensation
by LAURIE KAZAN-ALLEN
On March 23, 2003, the electorate of Slovenia voted to join the European Union (EU); three weeks later, Slovenia was one of ten states to sign the treaty of accession. By May, 2004, the EU will have 25 Member States with 450 million people, many of whom have been exposed to asbestos; the unfortunate ones will contract debilitating and fatal diseases from their exposure to this class 1 carcinogen. Scientists predict that in the current thirty- year period, there will be at least 500,000 asbestos-related deaths in Britain, France, Germany, Italy, the Netherlands and Switzerland (1) , countries in which asbestos controls have existed for decades. How much higher will the death rate be in those countries where no controls existed?
Data from Slovenia shows that as recently as 1993, more than 3,000 people were working with asbestos; there is no doubt that the West European epidemic of asbestos disease is also occuring in Slovenia. Comparing the ways in which affected societies have dealt with asbestos issues will inform the debate on compensation which is taking place in Slovenia; it will also reveal the positive contribution made by asbestos victims’ groups in improving national compensation regimes. By contrasting existing systems, we can identify successful strategies for obtaining equitable and prompt compensation and expose ways in which victims are marginalized and disenfranchised.
Although the use of asbestos was finally banned in the UK in 1999, thousands of people continue to die from asbestos-related diseases. In 1995, the paper: Continuing Increase in Mesothelioma Mortality in Britain by Julian Peto et al predicted that UK “mesothelioma deaths will continue to increase for at least 15 and more likely 25 years. For the worst affected cohorts - men born in the 1940s - mesothelioma may account for around 1% of all deaths.” According to government statistics, there were 22,295 asbestos-related deaths between 1926 and 1996 in the UK. Occupational hygienist Robin Howie believes that this figure grossly underestimates the problem. In a paper he published in 1999, Howie calculated that the death toll over this 70-year period was 125,000, five times the government estimate. Furthermore, Howie has estimated that the number of cumulative asbestos-induced deaths which will occur in the UK between 1929-2020 could reach 663,000-820,000. It is clear that the UK has a serious asbestos problem.
In 1906, changes to the Workmen’s Compensation Act 1897 established a system under which compensation for industrial diseases was available. Occupational exposure to asbestos was first regulated in Britain by the Asbestos Regulations of 1931. The scheme for compensation and annual medical examinations for asbestosis was established under the Asbestos Industry (Asbestosis) Scheme 1931. With hindsight, it is clear that by restricting claimants to those workers directly engaged on asbestos production and by excluding insulators, shipyard workers, builders and others who were receiving daily occupational exposure, the effectiveness of this scheme was seriously compromised.
The following asbestos-related diseases are “prescribed diseases” subject to special procedures:
There are a bewildering variety of government benefits for prescribed diseases. At a recent conference, a benefits’ expert demonstrated how knowledge of the system can increase the level of weekly benefits from £115.30 ($173) to £381.60 ($572) for a 52 year old married man with mesothelioma. The sum is made up of the following elements:
| Earnings replacement | £115.30 |
| Industrial disability | £116.80 |
| Mobility needs | £ 39.95 |
| Care needs | £ 57.20 |
| Income support top-up | £ 32.35 |
| Housing | £ 20.00 |
| Total | £ 381.60 |
Personal injury litigation is the prime private legal remedy for securing compensation for industrial disease. In the UK, the most usual legal action for asbestos compensation is taken by an injured worker against a former employer. Since asbestosis became a prescribed disease in 1931, 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). Despite this supposed pro-claimants’ bias, UK asbestos victims have been reluctant to take legal action. In 1988, The Comparative Study of the US and UK Asbestos Litigation Systems found that British asbestos litigation was “much less effective at mobilizing possible cases and there are indications of a significant pool of uncompensated victims.” (2) Nothing much had changed by 1994, when Tom Durkin published his doctoral dissertation: Constructing Law: Comparing Legal Action in the United States and the United Kingdom. Durkin reported:
“In the U.S., legal action was the result of trusted information flow through positive gatekeeping networks, in the U.K., legal inaction was the result of blocked information flow through negative gatekeeping organizations and networks…
The major difference was that there were far fewer U.K. victims at the end of the claiming process.”
Table 1 of Durkin’s thesis illustrates the huge gap between the US and UK situations:
| U.S. | U.K. | |
Mesothelioma |
3.45 | 13.1 (3.8 times U.S. rate) |
| ARD Legal claims (1988 cases) |
221 | 166 (800 expected if rates were constant) |
Traditionally, British workers have not been inclined to take legal action against negligent employers. Marginalized by ill-health, disadvantaged by financial deprivation and fearful of getting caught up in a legal system they did not understand, potential UK asbestos claimants refrained from bringing claims. Recent social changes, however, have occurred in Britain which impacted on the conversion of asbestos injuries into asbestos claims. Britain is becoming a more litigious society; injured workers are more inclined to resort to law to obtain compensation for asbestos diseases. There are many possible explanations for this:
There is no central register which lists the number of asbestos cases and settlements received, however, it is believed that there are currently about 1,500 asbestos-related legal claims a year. According to official statistics, more than 5,000 people died from asbestos-related diseases in 2002. Comparing these numbers, it is clear that a significant number of injured victims is still not bringing legal claims.
In general, UK asbestos settlements are influenced by the following factors:
Useful sources of information on the size of asbestos compensation payouts 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:
A landmark judgment was handed down earlier this year (2003) by Mr. Justice Simon in Leeds High Court who awarded the family of mesothelioma victim Anthony Farmer £4.37 million ($6.55 million) in compensation against several negligent employers. The record amount of damages acknowledges Mr. Farmer’s meteoric rise from butcher’s boy to power-station worker to gifted entrepreneur. Mr. Farmer, who died at 47, was co-owner of Tyre Technics, the world’s biggest tyre retread firm. In 1998, this company was sold for £30 million ($45 million).
In the UK, the existence of an “information vacuum” was exploited by negligent employers who continued to deny compensation claims from injured workers as long as they could. The uncertainty created by the lack of information reinforced workers’ reluctance to bring legal claims for damages. The formation of support groups by injured workers or relatives of workers has made a huge difference to the climate in which claims are brought. Practical support for thousands of victims and their families as well as assistance in negotiating the claims nightmare of government agencies is provided by all these groups. Over the last three years, victim support personnel working closely with their legal advisers, MPs and medical experts have been highly vocal in campaigns such as those against insurers and asbestos defendants which have tried to escape asbestos liabilities. Amongst the most well-regarded groups are:
Under the French law governing compensation for occupational diseases, some parts of which stem from legislation enacted in 1919, workers with prescribed diseases were entitled to compensation from the French social security and welfare system. In theory, workers did not need to demonstrate the causal links between exposure and prescribed diseases. In practice, however, this was often undermined, not least by physicians, medical specialists and bureaucratic experts who continually questioned the principle of “presumption of origin.”
French victims of mesothelioma, asbestosis and pulmonary cancer, all of which are prescribed diseases, were disadvantaged by the pro-employer bias of the system. Administrative procedures were long-winded, resulting in many claims being abandoned; acquisition of the requisite medical certificate was complicated for victims, most of whom were elderly, unskilled workers with no trade union support. Without medical recognition, there is no award of state compensation; as official calculations of the incidence of occupational disease is based on medical recognition, the number of cases of asbestos-related disease has continually been under-estimated. Comparing data from INSERM (4) and the Social Security Health Insurance Agency, Dr. Thebaud-Mony reports a gap “between the number of deaths by mesothelioma and the number of recognized cases.” She says: “France is falling short of true recognition of the magnitude of the epidemic. The most serious failing is in the diagnosis and proper reporting of cases contributing to the mesothelioma epidemic.” This opinion is supported by Marcel Goldberg, also from INSERM:
“413 asbestos-related cancers were recognized as occupational diseases under the general scheme in 1998, whereas a ‘low’ estimate of asbestos-related deaths in France puts the toll at 1,950 fatalities in 1996… this massive under-estimation of the consequences of work-related exposure is very likely one main reason why the information and prevention needed to address these avoidable diseases is not happening.” (5)
ANDEVA, the French National Association For The Defence of Victims of Asbestos, was created in 1994. Although support for this association came from a range of groups and institutions, the spark which lit the fire came from two sources: former asbestos textile workers, mostly women, campaigning for asbestos compensation in Clermont-Ferrand and teachers and students protesting against the presence of sprayed asbestos fireproofing throughout Jussieu University in Paris. The success of ANDEVA is based on its roots as a social movement; there are currently 8,000 members of 20 local ANDEVA branches. Acting as an umbrella group, ANDEVA:
ANDEVA has been calling for changes in the French system of recognizing and compensating asbestos victims for several years. ANDEVA officials, working closely with French lawyers, have achieved a string of judicial victories. In March, 1999 Michel Drouet, a fifty-three year old mesothelioma patient from Cherbourg, became the first applicant to win damages for asbestos disease from The Commission of Indemnity for the Victims of Criminal Acts (La Commission d’Indemnisation des Victimes d’Infraction: CIVI), a panel set up in 1983 to compensate victims of terrorism, road accidents or criminal acts. 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 Supreme Court in 2000. Most of those seeking compensation by this route were military personnel, sailors, government officials and victims of para-occupational or environmental exposure; all of whom were barred from bringing civil claims before the Social Security Affairs Court.
Although victims with recognized cases of occupational disease were entitled to bring legal actions for “inexcusable fault” against former employers, before the creation of ANDEVA, few chose to do so; those who did, often failed. Through collaboration with scientists, lawyers and other professionals, ANDEVA has built up a fund of knowledge on asbestos issues which is an invaluable resource for lawyers. This knowledge has increased the likelihood of success in asbestos cases. On 28 February, 2002, the French Supreme Court upheld verdicts of “faute inexcusable” (inexcusable fault) in twenty-nine cases brought by asbestos victims. This was a resounding victory for asbestos claimants, ANDEVA, and the French solicitors who worked closely with them. According to ANDEVA:
“After 50 years of lies, the companies which manufactured and processed asbestos have finally been brought to justice and asbestos victims have received the judicial recognition and compensation they deserve… The Supreme Court decision places the responsibility for prevention squarely on employers’ shoulders. Unless these obligations are met and every preventative measure is taken, companies could find themselves facing legal actions for inexcusable fault. This judgement re-establishes a right denied by the insurance system, that is the right to health and dignity at work. The recognition of this inexcusable fault is an act of social justice, not just the award of financial compensation.”
Since the Supreme Court decision there has been a steady stream of asbestos cases finding their way to the courts.
As the number of cases brought before the CIVI and civil courts increased, the French government explored other compensation options. Although ANDEVA personnel participated in these discussions, there was diversity of opinion amongst ANDEVA members about the advantages to asbestos victims of the Government’s proposed changes. In 2000, a new body called FIVA was set up. This no-fault benefit system was intended to provide prompt and automatic compensation for victims of occupational injuries and illnesses and those with diseases caused by non-occupational exposure, such as the wives and families of asbestos workers. Although the aims of the FIVA included simplifying compensation procedures and speeding up payments, the system remains complex and slow. As of March, 2003 not one victim had received compensation. As the work of the CIVI had been suspended upon the enactment of the bill establishing the FIVA, asbestos claims are, in effect frozen. Asbestos victims are still entitled to bring a civil claim against former employers for “inexcusable fault” as long as they do so before a file is logged with the FIVA. Unfortunately, when time is short and payment is needed urgently, the delays inherent in the judicial process make this an unattractive option and the FIVA route becomes the better choice. It is hoped that the problems at FIVA will be resolved this year (2003).
While the importance of ANDEVA to individuals and their families should not be under-estimated, another major achievement of the French group is its effectiveness in using the media to mobilize public opinion. In less than ten years, French asbestos victims have created a high-profile national network which is now accepted as a legitimate partner in the legislative and judicial process. ANDEVA is an active stakeholder in the national debate on asbestos issues. Whereas previously, the French asbestos agenda was manipulated by asbestos producers and employers, nowadays comments by ANDEVA spokespeople and members are included in articles on asbestos. This is certainly a change for the better.
In a relatively short time, the climate in which asbestos compensation is awarded in the Netherlands has undergone a dramatic transformation. This improvement is, to a large part, due to the work of a national group representing asbestos victims: The Dutch Committee of Asbestos Victims. Since 1995, this group has been fighting for justice and compensation for injured people occupationally, domestically or environmentally exposed to asbestos. The group receives strong support from the Dutch Socialist Party and the trade unions. One of the aims of the committee is to shorten the “legal agony of mesothelioma victims.” (7) To this end, committee members negotiated with employers’ organizations, insurance companies, the Government and trade unions to create a national institute to pay asbestos compensation.
Dutch employers have, since the beginning of the 20th century, had a duty of care regarding the health and safety of their employees. The first mention in the Civil Code of employers’ liability for occupational accidents and diseases occurred in 1908. Although injured employees were permitted to claim compensation within the framework of the Accidents Law, they were prohibited from suing their employers until 1967 when the Accidents Law was revoked; Dutch case law on asbestos personal injury litigation started in 1967.
A thirty year limitation period combined with the latency of asbestos diseases meant that many Dutch victims remained uncompensated until fairly recently. A 1990 verdict by the Supreme Court (Janssen v Nefabas) was pivotal in improving the prospects of personal injury asbestos litigation. According to Researcher Yvonne Waterman:
“The Janssen case was focused particularly on what knowledge regarding asbestos could be expected of an employer and what level of protection against asbestos related diseases he should offer. However, if it had been decided that the employer had in fact taken all the precautions which could reasonably be expected of him in relation to the level of knowledge that could reasonably be expected of him, then he would have been absolved of liability and the employee would have been left empty-handed.” (8)
In the 1990s, the number of asbestos personal injury cases increased dramatically; over that period, two Dutch specialists handled more than one thousand asbestos cases. According to these lawyers, Dutch employers and insurance companies chose to settle the majority of asbestos claims with only 10-15% proceeding to court. The availability to victims and their legal representatives of more and better information led to a significant rise in the size of pain and suffering awards ($50,000-$80,000).
While civil claims are an option for Dutch mesothelioma plaintiffs, 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 for 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. 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; to bring a claim before the IAV, individuals must renounce the right to bring a civil action. If, however, the mediation fails, victims can instigate legal proceedings. Through mediation with former employers, the IAV aims to resolve claims within four months. Unfortunately, during the two-year period commencing 27 January, 2000, the mediation process took 8-9 months. (9)
From January 1, 2003, the IAV has been making advance lump sum payments of £10,500 ($16,000) within a few weeks of mesothelioma claims being received. There is no obligation for recipients to repay this money even if more compensation is forthcoming at a later date. Although the Government will try to recoup its expenditures from negligent employers, the claimant will be paid regardless. The scheme will apply to people who:
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 significant discrepancy in the levels of compensation available from the two sources with average settlements of $45-$50,000 being awarded by the IAV and $17,700 by the GAI. By comparison, compensation from a civil case could be somewhere in the region of $68,000. Neither the IAV nor the GAI will compensate asbestosis or lung cancer victims. The Dutch Asbestos Victims’ Group is pressing for the extension of the national compensation schemes to these victims. With as many as 15,000 pleural mesothelioma deaths expected in the Netherlands by 2028 (10) , it is clear that the IAV, GAI and personal injury specialists have much to do.
Research conducted by the group: Europe Against Cancer established that in the early 1990s, over 1.2 million workers were still being occupationally exposed to asbestos in the fifteen EU member states; asbestos exposure in the ten accession states will add to the already heavy burden of asbestos-related disease in the EU (11) . We must work together to press the EU to:
At the same time, campaigning at national levels is essential. As this paper demonstrates, the role played by asbestos victims’ groups in publicising and remedying injustices experienced by asbestos victims in the UK, Holland and France has been vital. A close observation of international victim support groups has revealed that the most successful groups:
This conference is a manifestation of the determination of the Slovenian Trade Union of Asbestos Patients (SABS) to improve the plight of asbestos victims in this country. I urge all the delegates to this conference to work with SABS to achieve our common goals of justice for asbestos victims and a global ban on the future use of asbestos.