Wednesday, 10 July 2013

It's time to adopt the Australian example for asbestos management

Last week I wrote about the opportunities the UK civil litigation landscape presented for Australian law firms. Today I'm again referencing the Antipodes. This time, though, rather than the focus being from Australia to Britain, it’s the other way round.

When it comes to asbestos, we could look to Australia and learn an awful lot.

The Aussies have got it right

Here, the government seems to have a blind spot with regard to asbestos, especially asbestos in schools. Time and again evidence is presented to make the case for the wholesale removal of asbestos in schools, and yet nothing happens. In Australia, a very different and laudable approach has been adopted.

On 3 June the Australian Federal Parliament passed legislation for the Asbestos Safety and Eradication Bill. As the estimable Asbestos in Schools website has it, "This is precisely the fundamental strategic thinking that is urgently required in Britain. It underlines the Australian Government’s commitment to solve their asbestos problem once and for all." Moreover, the Bill "sets a benchmark for our Government when they conduct the review of asbestos policy in schools."

In Australia, then, a national agency will be set up to investigate the problem of asbestos in schools. Far from thinking that asbestos in schools isn't a problem, in Australia the inherently fluid and dynamic environment in schools is accepted as being exactly the kind of place in which asbestos fibres can be easily disturbed – with potentially deadly results. The national agency will then go about developing and implementing a strategic plan to eliminate asbestos and asbestos-related diseases.

What needs to happen in Britain

Last Wednesday I attended a meeting convened by Asbestos in Schools at Portcullis House in Westminster. It was followed by the All Parliamentary Party Group Asbestos Annual Seminar, which was also held at Portcullis House. Regrettably I was unable to attend the second seminar, but as ever the speakers at the Asbestos in Schools meeting were articulate and persuasive. They included the tireless Michael Lees and NewLaw solicitor Cenric Clement-Evans, both of whose arguments I whole-heartily endorse. In summary, they are:

  1. Children are more vulnerable to exposure to asbestos than adults; the younger the child, the greater the risk. This is because children's lungs are immature and therefore more susceptible to injury. The government's own advisory Committee on Carcinogenicity (COC) published a statement to this effect on 7 June. It stated clearly that the younger the child, the greater the risk.
  2. The government's present review of policies regarding asbestos in schools is not impartial - and seems set to do nothing to change the status quo. The Health and Safety Executive, far from taking on board the profound dangers posed to children by asbestos in schools, underplays the threat. Its determination to have the review conducted internally is flawed, and likely to whitewash obvious problems.
  3. The bold and principled stance taken in Australia should be adopted here. We need an objective, external review of the problem - a formal 'asbestos audit', as it were. Transparency and openness are key but beyond that it is vital that the government wakes up and confronts the profound danger posed to children by asbestos. There is more on this at this link

Flaws in the Mesothelioma Bill

Meantime, our parlous attitude to the problem of asbestos is highlighted by the disturbing story of Lorraine Berry. Lorraine was diagnosed with mesothelioma, caused by inhaling asbestos dust, in April 2012, aged just 48. On top of having to come to terms with the fact that she will die prematurely, Lorraine has come up against a brick wall in trying to obtain proper redress for the fact that, while at work, she was not protected from asbestos fibres.

Lorraine's former employer has ceased trading. Although employer's liability insurance was compulsory from 1972, attempts to find any insurance cover have failed. It is anticipated that more than 300 mesothelioma sufferers a year miss out on justice because insurance documents for their employer have disappeared; to remedy this, we have the Mesothelioma Bill, announced in the Queen's Speech in April. This purports to solve the issue of a lack of insurance, enabling claims nevertheless to be brought.

There are, however, unaddressed issues. The Bill only applies to those diagnosed after 25 July 2012. This arbitrary cut off date means that Lorraine is not eligible because she was diagnosed three months out of time.

In my view the government should take a leaf out of the Australian book. Whether young, adult or elderly, it cannot be right that a civilised society continues to acquiesce in the harm caused by asbestos and to inhibit those affected from obtaining rightful compensation.