Wednesday, 27 February 2013

Asbestos in the News - Again

Regrettably, asbestos is in the news. I've been keeping an eye out for stories on what was once dubbed the 'miracle mineral' over the past few days. There have been plenty.

To start in the UK, an asbestos clean-up is underway at Dale Farm, the plot of land on Oak Lane in Crays Hill, Essex which was, until late in 2011, the site of an illegal encampment of travellers. Asbestos debris came from roofing sheets on an industrial building at the site, which was damaged by fire last year. Basildon Council has now retained contractors to handle what is expected to be a week-long operation.

Hospital Trust Fined

Belfast Crown Court was the centre of an asbestos story last week. There, a representative of the Belfast Trust pleaded guilty to charges of failing to ensure the safety of staff at Belfast City Hospital in an incident linked to asbestos. The Trust also admitted failing to tell sub-contractors about the presence of asbestos before they started work at the hospital last January, and to failing to manage the risk.

In Wales, an industrial property owner was fined by Caerphilly Magistrates' Court for exposing untrained workers to asbestos at a building in Newport, while the Herts and Essex Observer this week reported on an asbestos alert at Barclays Bank in Sawbridgeworth. Fortunately, it proved to be a false alarm.

Also of some cheer, albeit again arising from highly regrettable circumstances, was the award of £160,000 compensation to pensioner Eli Richards, who worked for bathroom appliance manufacturers Armitage Shanks for 17 years from 1979. Mr Richards was diagnosed with mesothelioma, a form of incurable lung lining cancer, in December 2011. A fit and healthy non-smoker and sportsman all his life, Mr Richards worked in conditions where warnings about asbestos dangers were conspicuously absent. Protection was lacking, too. At least Armitage Shanks had the good grace not to dispute the claim.

Asbestos around the Globe

So much for the UK. What about the rest of the world? Well, a number of stories demonstrate the global nature of the problem of asbestos and the absolute necessity of doing everything to protect people - and particularly children - from its dangers.

In Uganda, the Parliament’s Science and Technology Committee of MPs called upon the government to replace all asbestos roofing from educational establishments which are still prevalent in technical schools, colleges and universities. One MP told the story of a staff member at the Principal Uganda Technical College who had died after using water harvested off an asbestos roof.

In India, the country's Competition Commission is probing alleged cartel activity in the market for asbestos cement sheets, still mainly used in rural areas for low cost houses and warehouses. Further east, in Australia a class action against Carlton and United Breweries looks set to begin. It won't be the first asbestos-related claim the brewery has faced: it has settled six before trial in the past decade. This time, 20 former workers have contacted a law firm with a view to initiating proceedings for exposure to asbestos in the 1950s and 60s.

Looking west across the Atlantic, in the US six Arizona school districts have been fined for 'numerous violations' of the Asbestos Hazard Emergency Response Act (AHERA) by the US Environmental Protection Agency.

WHO lays down the law

Thankfully, a Joint Statement, released on February 19, 2013, by the World Health Organization (WHO) and the International Agency for Research on Cancer (IARC) didn't pull any punches. It boldly stated that all forms of asbestos are carcinogenic to humans and that the most efficient way to eliminate asbestos-related diseases is to stop the use of all forms of asbestos.

There was also positive news closer to home. The Health and Safety Executive (HSE) is attempting to raise the awareness of young workers, who they believe still do not understand the huge dangers posed by asbestos.  The HSE points out that around 4,000 people die every year in Great Britain because of asbestos-related diseases. It believes that 1.8 million tradespeople are still at risk of exposure to the material.

The above isn't an exhaustive summary of recent asbestos stories. I'm sure I've missed a few. There may be other stories of relative good cheer, with companies at least promptly admitting liability and settling claims, rather than putting people who are victims through the stress and anxiety of the legal process. There will be other stories of more tragic import. But most worryingly of all, there will be tales of the harm and woe caused by asbestos that we will never know about.

So perhaps, in a way, it's a good thing that all the above are 'out there' and known about. At least such stories mean that we will keep asbestos in the forefront of our minds, until we have at last dealt with it satisfactorily and made sure that we protect our children from its terrible capability for damage.

For an insightful take on asbestos issues, Cenric Clement-Evans blogs here.

Thursday, 21 February 2013

A Spotlight on 'Compensation Culture'

The case of Baljinder Kaur Gill, who was killed in a staged crash-for-cash accident, shines a light on the reality of the so-called 'compensation culture'.

Here we have a tragic incident in which perpetrators of a criminal enterprise have justly been given lengthy custodial sentences. Four men - Radoslaw Bielawski, Jacek Kowalczyk, Andrzez Skowron and Artur Okrutny - concocted a plan which would see a VW Passat and an Audi A3 collide with an innocent Ford Transit van on the A40 in Buckinghamshire. Their intention was to claim personal injury compensation.

A Disgraceful Scheme
The men put their plan into operation on the evening of 11 June, 2011 - to disastrous effect. Gill, 34, died when her Ford Fiesta, which had been hit by one of the men's vehicles, was hit again by a Renault Trafic van. Her car had been stationary in the fast lane of the A40 after she had been unable to avoid crashing into the Ford Transit van, whose experienced driver had commendably managed to avoid hitting the men’s vehicles. Ms Gill left her car with its hazard lights flashing but returned to retrieve some possessions. Her car was then hit by the Renault van in what Reading Crown Court heard was "an explosion of metal, glass and dust". Ms Gill was fatally injured at the scene.

The men stood to gain £20,000, having targeted the Transit van because they knew it would have valid insurance. Their ill-conceived and disgraceful scheme caused harm not only to Ms Gill. Probably because of 'rubber-necking', there was a pile-up on the opposite carriageway. It left another person seriously injured.

Just Sentences
Bielawski, 24 and Kowalczyk, 32 were both jailed for a total of 10 years and three months for conspiracy to commit fraud, causing death by dangerous driving and conspiracy to pervert the cause of justice. Skowron, 25 who was to be paid an undisclosed fee for taking part in the scam, was jailed for 10 years. Okrutny, 23 who was to be paid £300, was not present at the crashes but was jailed for 12 months.

Mr Justice Sweeney was right to pass stringent sentences on the men, in what he noted was "the first such enterprise to result in a death to come before the courts".

Every right-thinking person would understand and most would welcome the sentences, and applaud the investigative work of the police.

I hope we can rid society of this evil. This case demonstrates that fraudulent activity exists, just as  the ensuing  tragedy shows just how terrible the full consequences can be. But I also hope that those who maintain that we inhabit a world in which spurious claim follows spurious claim will take stock and pause for thought.

Time for a Common Sense look at 'Compensation Culture'
Back in 2005, Tony Blair gave a speech in which he called for "common sense culture, not compensation culture". In a sound-bite quickly picked up by the media, Blair said: "Public bodies, in fear of litigation, act in highly risk-averse and peculiar ways. We have had a local authority removing hanging baskets for fear that they might fall on someone's head, even though no such accident had occurred in the 18 years they had been hanging there."

Blair helped set in train a backlash against a fundamental tenet of tort law: that the claimant should, if he or she has proved negligence and causation, and if the resultant damage is not too remote, be placed in the position he or she would have been in had the accident or injury not occurred. Ever since, the media has delighted in stories of absurd claims supposedly brought by solicitors acting unethically and claimants on the make.

The truth is otherwise. The vast majority of claimants are honest  and their solicitors continue to adhere to the basic principles of tort law: if someone has been injured, they take up the cudgels on that person's behalf and seek redress, which as a matter of law is always intended to restore the position and no more .

It is right that our democracy allows this to happen. It is a sign that we are civilized, and that we care. Those who may need to bring claims arising from the collateral damage in the Gill case should not fear obstruction by insurers or vilification by third parties who insist they're making the most of their misfortune. They should be emboldened in their conviction that they are entitled to right the wrongs inflicted on them.

The fact is that the men behind the appalling events that led to Baljinder Gill's case are those who truly represent Britain's 'compensation culture'. Common sense condemns them - and gives thanks for a developed judicial system that allows victims to bring claims, when to do so is right.

Wednesday, 13 February 2013

A Poor Decision by Churchill

Last week Churchill, the insurance giant, was in the news - and not because it had announced a new series of benign ads featuring a cuddly dog and a well-known actor.

Instead, Churchill made the headlines because it has decided to appeal against a judgment by the high court.

Bethany Probert, now 16, suffered traumatic brain damage and a number of debilitating injuries when she was hit by a car one afternoon in December 2009. The young girl, who was walking home from riding stables, was hit by a driver who was travelling at 50mph along a country lane - too fast, according to the court.

The result of the accident was that Bethany was left with limited walking ability, depression and a lack of concentration or spatial awareness. She requires specialist equipment, a support worker and an open plan, single-storey home - in other words, ongoing care for the rest of her life.

Her mother would have taken some small solace from the court's judgment that Bethany was in no way guilty of contributory negligence. At least, she would have thought, there will be compensation to look after her daughter.

But not if Churchill has its way. The insurer was last week granted leave to appeal against the judgment (which would have seen Bethany paid up to £5m compensation), in what is being seen a test case to determine the extent to which children can be held responsible for their injuries in road accidents.

Churchill maintains that Bethany should have wearing a high visibility jacket as she walked along the road. In the words of a Churchill spokesperson: "While we accept that our insured was liable in part for the accident, we are appealing [against] the decision that he was entirely to blame."

Churchill's appeal can only be greeted with great dismay. Each case is, of course, dependent on its own facts, but the idea that children should be compelled to wear high-visibility jackets on country lanes, lest they are partly at fault for accidents, is ridiculous. I wish Bethany, her family and their solicitors (Richard Langton of Messrs Slater & Gordon) well in their battle against Churchill.

Thursday, 7 February 2013

Institutionalized Blindness

Amid the understandable uproar about standards of care at Stafford Hospital - where abuse and neglect contributed to hundreds of deaths between 2005 and 2008 - there was, at least, a genuine expression of regret from on high.

Too often, when an institution fails, its leaders bury their heads in the sand, but not Mike Farrar, the CEO of the NHS Confederation. Speaking on Newsnight earlier this week, a haggard-looking Farrar seemed to speak from the heart when he said: "As someone who came into the health service to do good, today is a day I genuinely feel shame."

Appalling Conduct
The harrowing catalogue of failings at Stafford Hospital is presently the subject of a fifth public inquiry. Like the fourth inquiry, this one was chaired by Robert Francis QC. More than 160 witnesses appeared at the hearings, and one million pages of evidence have been sifted through. The findings of the inquiry are due imminently. Tragically, it is a fair bet to conclude that even though this time the focus is on the commissioning, supervision and regulation of the trust from 2005 to 2009, "appalling" conduct will once again be found.

In the face of this, Farrar did not hide. He told Newsnight that "The culture of [Stafford Hospital] was not geared up to put patients' needs right at the heart of it; there was almost an institutionalised blindness to what mattered."

He added: "The risk, I think, today, is that we look to external things like better regulation or more inspection, to try to solve what effectively is a problem that can really be only solved by having a culture in every hospital where every member of staff is geared up to try and provide the best possible care for patients."

Mea Culpa
Farrar's mea culpa may not cut much ice with Stafford Hospital's mistreated patients and their families, but it is nevertheless to be applauded. Here, in marked contrast to the behaviour of politicians, senior journalists and bankers embroiled in recent scandals, is a man prepared to say sorry. And in his use of the phrase "institutionalized blindness", Farrar also sheds light on a phenomenon which regrettably spans many areas of modern life.

Take, for example, the problem of asbestos in schools. This seems to be routinely ignored, despite well-publicised instances of teachers contracting cancer and the simple fact that, of all places, schools are not predictable environments. When applied to a school, where children run, skip, shout and jostle as only children do (rightly so), the Control of Asbestos Regulations are surely negligent to state, as they do, that "asbestos is only dangerous when disturbed. If it is safely managed and contained, it doesn't present a health hazard."

The Corporate Line
But if this is a potentially terrifying example of institutionalized blindness, it extends to the corporate arena, too. As alleged this week, Marks & Spencer knew full well of asbestos risks 10 years before the company was fined £1m for breaches to guidelines for asbestos removal in its Reading branch.

William Wallace, who was at that time working as a health and safety manager, told the BBC that he wrote to the then chairman of the company, Sir Richard Greenbury, highlighting a series of breaches at M&S's Marble Arch store, recorded in logs between shifts. "You could not have guaranteed the safety of anybody, the workers, the staff, the customers: you could not have given a 100% guarantee that those people were safe", said Wallace.

M&S's response to these allegations is dismaying. Steve Rowe, an M&S board member, said: "On the face of it these allegations sound worrying, but our team at the time 15 years ago thoroughly investigated them on the day." He added that M&S was unable to find any "case whatsoever to say any member of staff or any member of the public was put at risk."

Turning a Blind Eye
This declaration is at odds with the findings of the court in the Reading case. In September 2011, M&S was convicted of two charges under the Health and Safety at Work Act 1974 in relation to the work at the Reading store. Fining the company a total of £1m, Judge Christopher Harvey Clark QC criticised M&S for the "systemic" failure of its management. In response to asbestos safety complaints, said the judge, M&S chose to "turn a blind eye" to what was happening because the asbestos work was "already costing the company too much".

In other words, profit came before staff welfare - but not according to Rowe, who told the BBC: "Marks & Spencer never, ever puts profit before safety. There wasn't a blind eye. Our investigations were full and thorough ... Implementation of the policy wasn't good at Reading. We are very sorry about that. We regret it. So we are disappointed by the judge's comments."

At the time of the Reading judgment, M&S stated it was "disappointed" by the ruling. Now, a year and a half later and in the face of further serious allegations, M&S seems once again to be "disappointed".

It would doubtless reassure M&S's staff, contractors and customers to learn that the company could find it in its corporate heart to open its eyes - and feel more than mere disappointment.