International Asbestos Conference For Fair And Equal Compensation For All Asbestos Victims And Their Families

Table of Contents

Introduction
Session 1: Current Status Of Asbestos-Related Diseases In Japan
Session 2: Asbestos Compensation In Europe
Session 3: International Asbestos Issues: Epidemiology, Legislation and Victims' Rights
Session 4: Taking Action On Japan's Epidemic Of Asbestos-Related Diseases
Session 5: Non-Occupational And Environmental Asbestos Exposures
Session 6: Question & Answer Session
Session 7: Concluding Thoughts
Appendix

Session 2: Asbestos Compensation In Europe

In 1931, Britain was the first government to regulate the use of asbestos. Despite many other "firsts" in the evolution of knowledge about asbestos, British victims have faced a long and difficult struggle to achieve justice for their asbestos injuries. In her presentation, Current UK Asbestos Developments: Compensation, Medical Treatment and Political Support, Laurie Kazan-Allen, Coordinator of the International Ban Asbestos Secretariat, described the growing awareness of the asbestos hazard, the injustices experienced by asbestos victims, government and judicial means of delivering compensation and effective strategies for securing improvements.

Government action to deal with the national asbestos epidemic has been slow. As recently as 2003, UK medical specialists were bemoaning a national failure to diagnose and treat mesothelioma victims. A significant gap exists between the number of mesothelioma deaths and the number of claimants receiving disablement benefits; the size of government payouts to mesothelioma claimants is substantially less than court awarded compensation. From 2002-2006, more than 10,000 people died from asbestos-related lung cancer; fewer than 500 received government benefits. There are very few cases involving asbestos-related lung cancer which succeed in the courts.

Since the 1990s, victim support groups have been set up in many regional asbestos hotspots. In July 2005, nine asbestos victims' groups from the North of England and Wales formed a campaigning body called The Asbestos Victims Support Groups Forum (the Forum). The Forum has mounted a coordinated campaign calling for improvements on a range of different issues including streamlining procedures for obtaining compensation and better medical treatment for the injured. Working with the Asbestos Sub- Committee of the House of Commons, the Forum has effected change by bringing issues such as the double diagnosis of mesothelioma patients and the inequity of the House of Lords' decision in the Barker case to the attention of MPs and Ministers.

The long latency period of asbestos-related diseases leads to many time-consuming complexities in the process of obtaining compensation. Previously, it was common for mesothelioma plaintiffs to die before their cases were heard. Since 2002, a specialist court6 has transformed the process of bringing a personal injury claim for fatal asbestos diseases. The London-based judicial service at the Royal Courts of Justice (RCJ) is currently dealing with 600 cases a year from all over England and Wales. Early admission of liability and the use of joint expert witnesses have reduced litigation costs and expedited the settlement of cases. Tightly timetabled procedures, the use of telephone and email for case management conferences and applications have increased the certainty of results and cut costs for both sides. Ninety-seven per cent of mesothelioma claims are settled before they reach trial; only 1% of these cases require assessment hearings.

The author of the presentation French Approach to Achieve Justice for all Asbestos Victims, Dr. Annie Thebaud-Mony, was unable to travel to Japan for the conference; her colleague Dr. Paul Joban presented her paper. France, at one time one of Europe's biggest users of asbestos, has been left with a tragic and costly asbestos legacy. There are 3,000 asbestos related deaths annually and scientists predict that, in total, 100,000 French lives will have been lost to asbestos-related disease by the time the French epidemic is ended. In 2003, government compensation for asbestos-related injuries, including early retirement of victims7 and asbestos-exposed workers and payments for occupational asbestos disease,8 amounted to €1.2 bn (JPY190 bn/$1.9 bn). Total payments for the next twenty years are predicted to be in the region of €26.8-€37.2 bn (JPY4240-5890 bn/ $42-$59 bn).

A national asbestos compensation fund (FIVA), set up by the government in 2000 ostensibly to compensate all French residents with proven asbestos-related diseases, has been more instrumental in protecting negligent corporations and government agencies than in providing justice for asbestos victims. FIVA has succeeded in minimizing compensation awards and diverting public attention away from the polluters:

Since FIVA has been established, few court cases of "inexcusable fault" have been brought. This enables guilty employers to escape civil and penal liability for their negligent behavior, gives little incentive to improve conditions and creates inequality between victims, with those compensated by FIVA receiving much less then those who litigate. FIVA has done nothing to assist many categories of asbestos victims, including thousands of contaminated migrant workers who return to their home countries, sub-subcontracted workers whose asbestos exposure is denied, the majority of environmental exposure victims and workers exposed to asbestos at sites operated by French multinationals overseas.

Eric Jonkheere's presentation, Actions and Achievements of Belgium Asbestos Victims and their Families, introduced a personal note into the proceedings. Eric's father Pierre worked for one of Europe's biggest asbestos groups Eternit. Recently, Eternit celebrated its 100th anniversary amidst much fanfare and in the presence of royalty. The company's position in the Belgian political and economic structure has been used to its advantage on many occasions: to prevent the imposition of health and safety regulations in its factories, and, more recently, to insure that asbestos cement production continued until the very last moment allowed under the European Union ban asbestos directive. As for compensating the thousands of Belgians whose lives had been damaged by Eternit asbestos, Belgian jurists and politicians ensured that the legal climate was heavily skewed in the company's favor.

Pierre Jonckheere worked as an engineer at Eternit's factory in Kapelle op den Bos from 1956 until his forced early retirement in 1985. As it was mandated that all the company's middle management lived within 10 km of the factory, the Jonckheere home was only 400 meters away. Pierre died of mesothelioma in 1987, when he was 59 years old; his wife, Francoise, who never worked at the plant, died of mesothelioma in 2000 and one of his sons died of mesothelioma when he was 42 years old, leaving 3 young children. Of the four remaining sons: one was diagnosed with mesothelioma in January 2007 and two have asymptomatic pleural plaques. In his talk, Eric conveyed the collision of feelings experienced by "asbestos families": surprise, dismay, frustration, anger, anxiety and sadness.

In Belgium, a struggle to obtain accurate diagnoses and difficulty in accessing state-of-the-art medical treatment for asbestos-related diseases are sadly all too common. Eric's mother was determined that her family would begin the fight back against an establishment which cared little for individuals whose lives had been sacrificed to asbestos. Honoring their promises to their Mother, the Jonckheeres have worked closely with other victims to establish the Belgian Asbestos Victims Group: ABEVA. Despite press conferences, public demonstrations, newspaper articles and two high-profile asbestos conferences at the European Parliament, few improvements were achieved. That is, until the Prime Minister became personally affected by a loved one succumbing to an asbestos-related disease. At that point, serious negotiations began about establishing a national fund to compensate Belgian asbestos victims. In April 2007, this Fund was set up with the sum of €10 million (JPY1567 m /$15.65 m) donated by the State. Unfortunately, the Fund does not encompass all the demands made by ABEVA, but it is a beginning. Eric pledged the Jonckheeres ongoing commitment to making asbestos a national priority in Belgium and their solidarity with the cause of Japan's asbestos victims. His speech was very warmly received by the Japanese audience and an interview with Eric was printed in a regional Japanese newspaper the following day.

Unlike its neighbor to the south, in the Netherlands asbestos victims have been able to bring personal injury lawsuits for over a decade. As in many countries, however, the ability to seek judicial redress was often compromised by the long latency periods of asbestos diseases, multiple defendants, matters of limitation and lack of funding. After a sustained and highly publicized campaign by asbestos victims and their supporters, the Government agreed to set up a neutral institute to speed up litigation by mediating between asbestos victims and employers/insurers. The work of this institute was discussed in the presentation, The Dutch Approach to Compensation for Asbestos Exposure: from Litigation to Mediation, by Yvonne Waterman.

The Institute for Asbestos Victims ("Institut voor Asbestslachtoffers" or IAS), which began processing cases in 2000, was introduced as an exemplary model of harmonious conflict resolution; it has been a disappointment on many fronts. The IAS is quite successful at reaching one category of asbestos victims; 370 out of the 400 (92%) people diagnosed with mesothelioma every year opt to use its services. However, a surprisingly high percentage of these victims - according to informal sources, as much as 60% - is found to be ineligible for IAS compensation. In addition, asbestos victims with asbestosis or asbestos related lung cancer as well as the asbestos-injured with product (DIY), self-employed or environmental exposure are ineligible to bring IAS claims.

The standardization of IAS-awarded damages means that a 36-year old electrician with young children would receive $78,000 (€54,133), the same amount as an 80-year old with no dependants. In the civil courts, where the loss of life is a major component in setting compensation levels, the sum awarded would have been higher to the younger man.

Initially, the lower IAS awards were viewed as a fair trade-off for an expedited receipt of benefits; nowadays few claimants receive their compensation as per the IAS guidelines. Even more damaging is the unexpected effect that the relatively low level of IAS damages has had on the judicial system; on the rare instances when lawsuits are initiated by asbestos victims nowadays, judges are:

"increasingly referring to the Institute's standardized compensation, so now both regular court compensation and the Institute mediated compensation amount to the same, about €54,000. This makes the Dutch standard for compensation of occupational mesothelioma, one of the lowest in all of Europe."

The Dutch system is unique in that it mandates an up-front lump sum payment (TAS benefit) to mesothelioma victims of €16,500 ($24,000) as soon as the medical condition has been confirmed. While at first glance this would appear to be a considerate gesture, the receipt of the TAS benefit can have some very negative consequences. In most cases, accepting the TAS benefit means that the claimant is no longer entitled to cheap legal assistance from the State and must fund his or her legal fees. As these are likely to far exceed the €16,500, it becomes undesirable to embark on a dubious venture where the prospective litigant could face paying his own legal bills, those of the defendant and the court costs. Also, when the potential financial outcome is much the same as that set by the IAS (€54,000), going to court becomes an irrational exercise. It is therefore little surprise that nowadays asbestos litigation in the Netherlands has "almost disappeared." Concluding her talk, Waterman said that the IAS has:

"effectively taken away the opportunity for occupational mesothelioma victims to seek legal redress in a public court, in all openness, in the eyes of society…All the public anger about the injustice of the fate that asbestos victims suffer has evaporated. There is no media involved in their cases any more, they are now neither seen nor heard. The victims of the hidden epidemic have been silenced once more…"

In her opinion, the IAS serves negligent employers and insurers "very well indeed, but victims rather less so."

Endnotes

6. The Queen's Bench Division's "fast track" asbestos disease list at the Royal Courts of Justice.
7. By 2005, 40,000 workers had qualified for this.
8. In France, prescribed asbestos-related diseases are: mesothelioma, asbestosis, pleural plaques, diffuse pleural thickening and lung cancer with pleural plaques or asbestosis or with exposure of 10+ years in specified high-risk trades. According to National Health Insurance data, the vast majority of lung cancer victims are not compensated.