Commentators have speculated that the UK may soon see a significant increase in asbestos-related lawsuits. Although sometimes exaggerated in tone, such warnings are grounded in fact. Recent medical statistics and legal and social developments suggest that concerns about rising asbestos claim rates and the importation of US-style aggressive litigation to present those claims may well be legitimate. The spectre of American litigation tactics poses risks to businesses which historically had only slight contact with asbestos, such as product or equipment manufacturers. These 'remote' users (indeed, 'customers') of asbestos are well-advised to position themselves now to answer future claims should they materialise.
Asbestos is a generic name for several naturally-occurring fibrous minerals used extensively in industrial applications through the twentieth century. The UK began importing asbestos in the 1800s, but asbestos use only grew rapidly in the post-World War II reconstruction, peaking in the mid-1960s and remaining at a high level until the early 1980s.1 Exposure to asbestos is potentially linked to five primary medical conditions ranging in severity from the typically non-impairing lung scarring known as pleural plaques (which is, at least for the moment, not a compensatable injury under UK law)2 to the typically fatal mesothelioma, a cancer some say is caused only by asbestos exposure. Asbestos-related diseases are reported to cause over 3,500 deaths per year in the UK.3
A recent study collected data on the number of yearly asbestos-related claims made in the UK and concluded that insurance claims for asbestos-related illnesses have been rising since the 1960s.4 Claims for mesothelioma, in particular, have increased steadily since the 1970s.5
Recent UK medical statistics as well as legal and social developments predict this trend will continue. The conclusion that the number of yearly UK mesothelioma deaths has yet to peak has been a constant in seemingly all major studies addressing the issue.6 A recent study concluded mesothelioma deaths will continue to rise, eventually peaking between 1,950 and 2,450 deaths per year between 2011 and 2015.7
Since 2000, key rulings have made a number of the legal elements easier to prove.8 The fact that the House of Lords recently saw a need to limit the effect of one of these decisions suggests just how revolutionary, and claimant-favourable, they are.9 The UK's increasing acceptance of group litigation and litigation financing arrangements, such as conditional fees and after-the-event insurance, have similarly laid the groundwork for an increase in personal injury claims generally and asbestos claims specifically. First, these mechanisms potentially allow claimants to reduce, or eliminate, the costs of litigation. Second, class suits (already used in the asbestos context) can generate substantial media attention, raising the profile of the alleged problems giving rise to the case.
In business and legal communities, there is an increasing perception that the US, with its massive asbestos litigation framework built with billions of verdict and settlement dollars, is exporting asbestos lawyers and litigation tactics to the UK. Since the early 1990s, when one observer concluded that British lawyers disapproved of tactics used by US lawyers in asbestos litigation,10 the landscape has dramatically changed. Now, observers see UK litigation becoming increasingly americanised.11 Given the US experience with asbestos litigation, this is not a development which bodes well for potential UK defendants.
The rising tide of asbestos claims must 'go' somewhere. To date, the parties involved in UK asbestos litigation have resembled the parties involved in US asbestos litigation of the 1970s and early 1980s. During this first flood of litigation, claimants were typically employees who had handled large quantities of asbestos during their careers, and defendants were typically companies that supplied raw asbestos or used it as a major component of a product capable of releasing asbestos fibres. A new tide of US asbestos litigation, with new defendants, began just before 2000. Today, few US claimants have directly worked with asbestos. Rather, they claim incidental exposure on a site or through a co-worker's handling of a product. Defendants are often businesses which incidentally used asbestos in facilities or manufacturing processes or in small amounts in encapsulated products like plastics, resins, pastes, or liquids.
There appears to be little reason why the defendant shift witnessed in the US could not occur in the UK. The reality is that companies facing massive numbers of claims become unattractive targets as they are drained of capital. The insolvency of Turner & Newall Ltd, the major UK asbestos company, shows that this is already happening. In the US, the defendant shift was an effective way to substitute fresh sources of funds for exhausted sources.
For UK companies, a response to the possibility of rising claim rates and a defendant shift should begin with a re-evaluation of potential liability which poses the right question. The right question is not whether a company ever extensively used asbestos. It is whether they had any interaction, however slight, with asbestos. Whatever the findings of this initial re-evaluation, companies should consider involving lawyers experienced in asbestos and insurance litigation to guide the further steps needed to prepare for this new potential threat.
1 Health & Safety Executive, Mesothelioma Mortality in Great Britain: Estimating the Future Burden (2003)
2 Rothwell v Chemical & Insulating Co. Ltd, [2006] EWCA.27 CA
3 Health & Safety Executive, Asbestos (Jan 10, 2006) www.hse.gov.uk/asbestos/disease.htm
4 Asbestos Working Party, Actuarial Profession, UK Asbestos - the Definitive Guide, 6.1-6.2 (2004)
5 UK Asbestos - the Definitive Guide, supra note 4, at 6.3
6 UK Asbestos - the Definitive Guide, supra note 4, at 5-5.9; J T Hodgson, et al, The Expected Burden of Mesothelioma Mortality in Great Britain from 2002 to 2050, British Journal of Cancer (2005) 92, 587-93
7 Hodgson, supra note 6, at 591
8 Eg Fairchild v Glenhaven Funeral Services Ltd, [2002] UKHL 22 (HL)
9 Barker v Corus (UK) plc, [2006] UKHL 20 (HL)
11 Thomas E Durkin, quoted in Laurie Kazan-Allen, Asbestos Compensation in Europe, International Ban Asbestos Secretariat, May 30, 2000
Terry Budd and Chris Michael Temple are partners in the Pittsburgh office and Jane Harte-Lovelace is a partner in the London office of international law firm Kirkpatrick & Lockhart Nicholson Graham LLP, www.klng.com
MANAGEMENT IN PRACTICE
The Health and Safety Executive (HSE) asbestos website ( www.hse.gov.uk/asbestos/experience.htm ) provides access to best practice case studies like this:
Sainsbury's - Asbestos Management Procedures
General policy
Sainsbury's manage their asbestos by following the steps laid out below.
1. All sites undergo a Type 2/Type 3 asbestos survey to identify if asbestos is present on the property. All asbestos documents are stored electronically on Sainsbury's website.
2. If asbestos is present a scope of works is produced to remove or contain this asbestos.
3. An asbestos contractor is appointed to undertake the works identified for asbestos removal and/or containment, and from this the CAD drawings are updated reflecting the current site for asbestos. Annual checks are made on each property to confirm that the asbestos has not deteriorated, been damaged or removed during that year and the register for that site is updated.
Asbestos Store Locator
4. For all trading sites an 'asbestos store locator' is produced, which is a matrix identifying types of asbestos and what form it is in tallied up to its location on that site. This store locator is used as a management tool by the site when facilities maintenance (FM) contractors are working. It is a quick grid reference for the site manager to refer to, knowing the area that the engineer is to be working in, to confirm if asbestos is present or not. The contractor will then know what procedures to follow, as all have been trained in working with asbestos in this type of environment.
5. Following works on site, any further remediation work is also updated, via the asbestos consultant, so that the data held is accurate and up-to-date.
6. This includes all construction activities - the contractors access the current data on the Sainsbury's website, update it once works are complete, and re-load the new information onto the website, so that there is only one version of the asbestos data for that site at any one time.
Training
7. When a trading site is undergoing asbestos remediation works the training that is provided to the store staff is conducted by the contractor/store trainer at the beginning of the project, by running through the asbestos presentation. This covers what asbestos is; where it is commonly found, the fears and facts surrounding asbestos, and how the actual project will be managed. The delivery of this information is strictly controlled, in that each slide has its own notes and the trainer is asked not to deviate from the presentation to minimise the fear factor.
Construction projects
8. Specific procedures are followed for construction projects on trading sites. Sainsbury's requirements for a standardised approach to asbestos removal is up to the construction contractors to manage within their responsibility for managing a safe site, and they liaise with Sainsbury's throughout the management of the project to ensure it complies with expectations, causes minimal disruption to store trading, and falls in line with the asbestos Approved Codes of Practice.
9. All FM contractors employed on a contractual basis by Sainsbury's are provided with regular updates on asbestos, what it is, how to identify it, and how to work around it. When they visit a site, they are all instructed to sign in and meet with the site manager. They are than asked what works they are undertaking that day. If they are accessing areas potentially containing asbestos, they are referred to the asbestos store locator, which confirms where asbestos is present. The contractors then follow specific procedures on how to deal with it.
