The outcome of recent mesothelioma trials confirm that the courts and government are failing innocent people who develop the fatal lung cancer mesothelioma after exposure to asbestos dust below occupational hygiene limits.
In May of this year, McGregor v Gneco (FC) Limited was another example of where the ‘burden on employers’, based on standards of asbestos exposure that have long since been discredited, was put before justice.
The facts of the case relate to retailer John Lewis and the major renovation of a store in 1976. The work involved the removal of asbestos from the building. Employees and customers were protected from asbestos dust by shielding. Despite the precautions the shoe department repeatedly cleared ‘white dust’ from displays and a store room.
It was accepted at trial that asbestos was removed from the store. No asbestos monitoring took place so the levels of asbestos in the air were unknown. The judge found that shielding was an acceptable precaution and ‘not clearly bad’.
Experts agreed that it was ‘unlikely’ that asbestos levels to shop staff exceeded the government’s TDN13 limits at the time, which were set after the Asbestos Regulations 1968 by HM Factory Inspectorate to give guidance to employers. The limits still allowed employers to expose their workers to significant amounts of asbestos.
Why were these limits set when in 1965 a Sunday Times article, headlined ‘Scientists track down a killer dust disease’, was published and highlighted low occupational exposure was a major concern. There is little doubt that the article would have been widely read by members of the HM Factory Inspectorate and employers. Today it is accepted that limits set by TDN13 were wrong but why at the time, when there was plenty of concern about ‘any’ level of asbestos dust, was a ‘permitted’ level of asbestos dust set?
The HM Factory Inspectorate relied on information from the Asbestosis Research Council (ARC) to set the TDN13 ‘permitted’ limits. The ARC’s members included British Belting and Asbestos, Cape Industries and Turner and Newall. Those companies contributed £7 million to its funding and in his paper ‘Science or Public Relations?: The Inside Story of the Asbestosis Research Council, 1957-1990’, historian, Geoffrey Tweedale, points out that the ARC was run by industrialists and not by scientists.
Is it justice that the courts rely on ‘permitted’ levels of asbestos recommended to the HM Factory Inspectorate by a body significantly funded and influenced by interested parties from within the asbestos industry?
Lower-level exposure cases will only increase in number. Dr Robin Rudd, a leading medical expert on asbestos disease, has stated that mesothelioma ‘can occur after low level asbestos exposure and there is no threshold dose of asbestos below which there is no risk’.
Where does the McGregor judgement leave the growing number of innocent victims who develop mesothelioma as a result of exposure to asbestos? What happens to the teachers and children exposed in school buildings? Or the office worker who walked through the shop floor, where asbestos was being cut, to get to his desk?
The ‘permitted’ limits set by TDN13 and the McGregor judgement will be held aloft by defendants. It is not enough to be diagnosed with mesothelioma and to identify a time and a place when the exposure took place. It is necessary to demonstrate that asbestos dust above the occupational hygiene level was inhaled.
We may not be able to count on the courts because TDN13 appears to give judges nowhere to go. In the case of McGregor, Justice Patterson concluded: “Whilst I have enormous sympathy for the claimant, who clearly contracted mesothelioma as a result of asbestos exposure at work, it is with regret, but without any hesitation, that I find her claim against the defendant must fail.”
So, we wait for government to admit that mistakes were made when an acceptable limit for asbestos exposure was set and those limits were recommended by a body with members who had a vested interest in the asbestos industry.
We now need legislation or a change in the law so that all mesothelioma victims and their families who have been affected by exposure to the deadly dust are compensated.
But the worry is that the Health and Safety Executive (HSE) in 2014 is still advising in its latest awareness campaign that there is a permitted level of asbestos exposure. The HSE has been criticised for its new mobile app created to help builders and people doing DIY when there is a danger that they are working with asbestos. The app suggests that it would take at least two hours for asbestos to become dangerous… Will the information contained within this app also be used in the future to deny innocent people the help they need?