Asbestos Abroad – An International Overview
Laurie Kazan-Allen
Presented at: Mealey’s International Asbestos Conference
Chicago, USA, September 2003
There has been a growing realization that national asbestos developments impact
internationally. A legal victory by French asbestos victims caused panic amongst
British insurers. 1 The landmark decision by the French Supreme Court (February,2002), 2 combined with the escalation of U.S. asbestos claims and the House of Lords
decision in the Fairchild case (May, 2002) led German insurers to “consider
recommending an asbestos exclusion.” On June 27, 2003, foreign nationals secured
compensation for asbestos-related diseases from the British defendant Cape plc,
formerly the Cape Asbestos Co. Ltd; in the London High Court, bank drafts totalling£10.7 million ($17.28 million) were handed to English solicitors representing injured
South Africans who worked at or lived near Cape’s asbestos operations. Although thiswas not the first time lawyers had succeeded in bringing a legal action in England on
behalf of foreign claimants against a UK parent company, the Cape case achieved aparticularly high profile. According to Solicitor Richard Meeran, who pioneered theaction:“Central to the Cape case was the principle that multinational companies
undertaking hazardous operations overseas should be held legally accountable
for resultant injuries. The largest multinationals are wealthier than manynations, yet unlike states they are not subject to international law. Thissettlement is an example not just of Cape being held to account by thesevictims, but also a salutary warning to any multinationals which apply ‘double
standards’ in developing countries. They must now face up to their
responsibilities or bear the financial and other consequences.”
International Asbestos Production and Consumption
From the beginning of the 20th century until the outbreak of World War II, world
production of asbestos rose by 2000%. Output continued to grow steadily, peaking in
1975 at 5 million tons. Despite a slight downturn, annual production remained at over4 million tons until 1991. In 2000, approximately 2 million tons of chrysotile weremined:
Chrysotile Production and Export in 2000 (tonnes) 3
Country

Produced

Exported

RussiaChina
CanadaBrazilKazakhstan

752,000
350,000
320,000
209,332
178,400

332,417
11,814
315,326
63,134
174,000

While Kazakhstan was the 5th biggest chrysotile producer, it was the 3rd biggest
exporter.

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Asbestos is a growth industry in Kazakhstan. In 1999 and 2001, the Kustanayasbest
Asbestos Mining and Concentration Plant in Almaty, Kazakhstan extracted, processedand sold 109,000 tons and 200,000 tons of asbestos, respectively. This year, thecompany is aiming to increase annual output to 225,000 tons. According to apresentation by John Gilbert to the Latin American Asbestos Meeting (October,2001), in Kazakhstan there is:
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no asbestos legislation;
widespread use (John observed a queue to purchase asbestos products in an
open-air market in Almaty);
no public awareness of the health risks;
fully operational asbestos factories and mines: the largest factory producing
asbestos roofing material in the Former Soviet Union is located in the
Semipalatinsk Republic of Kazakhstan
extensive contamination of antiquated but still operational installations withdamaged friable asbestos products.

The conditions depicted in the photographs which John showed in Buenos Aires were
horrific. Examples of the uncontrolled use of asbestos included:
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open storage silos full of chrysotile in the Semipalatinsk plant;
an open skip of asbestos waste in a factory setting;an asbestos grinding machine covered with dust;
thousands of tons of finished asbestos cement roofing material in an open
warehouse;
thousands of tons of asbestos waste dumped within the city limits.

As industrialized nations reduced their use of asbestos, producers have increasingly
targeted consumers in the developing world. According to the U.S. Geological
Survey:“Countries in Asia, South America, and the former Soviet Union remain thelargest users of asbestos. More specifically, Brazil, China, India, Japan,
Russia, and Thailand are the only countries that consumed more than 60,000
tons of asbestos in 2000. These six countries accounted for more than 80% of(the) world’s apparent consumption in 2000… Consumption has increased inIndia, Indonesia, and Thailand during the past couple of years while that ofJapan has declined. Several countries have maintained low levels of
consumption and a few of these small consumers have increased consumption
in recent years.” 4
Of the countries named in the paragraph above, only Brazil (1990) and the RussianFederation (2000) have endorsed ILO (International Labor Organization) Convention
No. 162, concerning safety in the use of asbestos, and its accompanying
Recommendation 172; 5 these ILO instruments underline the necessity of national
asbestos regulations to minimize occupational exposure:“According to ILO Convention No. 162, the employer assumes full
responsibility for the establishment and implementation of practical measures2

for the prevention and control of the exposure of workers to asbestos and fortheir protection against health hazards due to asbestos.” 6
Despite the fact that Brazil is a signatory to ILO Convention 162, “the majority ofBrazilian employers do not fulfil their responsibilities for protecting workers fromoccupational asbestos exposure.” During twenty years of workplace inspections,
Senior Labor Inspector Fernanda Giannasi routinely finds hazardous conditions:“The controls specified by ILO Convention 162 are frequently absent,
especially in smaller companies. Even when these firms are aware of the risks,
they continue to treat asbestos as just another raw material; no safety measuresor protective equipment are used. Employers prefer to pay fines which arecheaper than adequate controls. The highest fine ever imposed for
infringement of safety and health regulations is US$3,000. It is very cheap tokill and injure Brazilian workers. Another serious problem in Brazil is
asbestos waste; as it is expensive to dispose of this waste appropriately, many
companies dump it in secluded spots such as abandoned warehouses andderelict buildings.”
Rates of Exposure: How Safe is “Controlled Use?”
Western Europe
Despite a rash of asbestos codes of practice, guidance manuals and statutory
instruments, occupational and environmental exposures continue in the UK. The“surprise” discovery of asbestos products or waste materials by contractors often
tempts them to take shortcuts. Prosecutions have resulted from: failing to adequately
supervise asbestos removal operations; lack of management records; illegally storingand disposing of asbestos-containing waste. 7
Although the use of asbestos is banned in France, as in many other industrializedcountries, dangerous exposures still take place. While conditions have improved forworkers in big companies, at sites where asbestos is being removed, the situation iscompletely out of control. According to Dr. Annie Thebaud-Mony:“In France, asbestos removal is a lucrative industry and involves the use ofmany sub-contractors. At the first level, there is usually a prevention plan but
by the time the job has been sub-contracted out two or three times, allprecautions are abandoned. Much of the risk is being incurred by immigrant
workers from Southern Europe, Turkey, the Magreb or Southeast Asia. Thus,
the French asbestos epidemic is being transferred to the less well-off and mostvulnerable sectors of the working population who remain uninformed of theirrights.”The Developing WorldIn general, the use of asbestos throughout the developing world has been andremains unregulated; where health and safety laws exist, compliance is negligible. In
India, the ubiquitous use of asbestos presents a serious hazard to workers and the
public:3

“the present annual consumption of asbestos is about 100,000 metric tons, one
fifth of which is mined in India... There are 13 large-scale and 673 small-scaleasbestos units in the country. The annual sale of the Indian asbestos industry is
about U.S. $500 million. It is estimated that some 6000 workers directly
exposed to asbestos and another 100,000 workers are employed by theindustry.” 8
Although there are standards set for occupational exposure in India, they are notobserved:“A study of asbestos in the milling process found airborne concentrations ofasbestos fibers higher than the Indian standard for chrysotile asbestos of 2
f/cm3. The highest fiber count observed was 33 times greater than theprescribed limits... The Central Pollution Control Board under Union Ministryof Environment and Forests monitored eight major asbestos products
manufacturing units in India. Six of them were not complying with theemission standards, for the remaining two, compliance or non-compliancecould not be ascertained. In most cases there were no monitoring platforms;
bag houses and stacks were not properly maintained, and operations wereintermittent.”
Unfortunately, the Government of India continues to turn a blind eye towards thehazards of asbestos:“Despite high exposures and widespread use of asbestos in India, occupational
health and safety measures are not found in place. There are no reported
morbidity and mortality figures compiled by the Ministry of Labour.” 9
At meetings in Brussels (June, 2001) and Buenos Aires (October, 2001),
representatives from Eastern Europe and Latin America identified common problems:
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a lack of national asbestos legislation; where legislation exists, little or no
enforcement;a failure of national policies based on the principle of “controlled use;”a total absence of regulation at demolition sites and amongst small andmedium-sized companies;
dangerously low levels of public and professional awareness of the hazards ofasbestos;a gross under-reporting of asbestos-related diseases;
sub-contracting of asbestos work to unskilled and unsupervised workers;
lack of asbestos audits resulting in on-going hazards to people who work orlive in asbestos-contaminated buildings;
widespread use of asbestos-containing materials in construction.

During presentations, speakers reported specific hazards:•

new laws to minimise exposure to asbestos were flouted in Poland; according
to inspections carried out by labor inspectors at sites employing 45,000
people, 497 were directly exposed to asbestos during repair or removal work;4

a further 1,244 people had been exposed to asbestos fibers released during
these dangerous activities.
•

In the Slovak Republic, uncontrolled occupational exposure is most common
amongst electricians and building trade workers, especially those involved indemolition and reconstruction of buildings. There is no information about the
numbers of workers being exposed in these circumstances. Environmental
exposure to asbestos is “practically uncontrolled.”•

In Latvia, the Department of Labor, responsible for controlling the use ofasbestos, has no authority to regulate its import. Despite an asbestos ban whichcame into effect on January 1, 2001, 1380 tons of asbestos-cement products
and products containing asbestos were imported during January and February,
2001.

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In Costa Rica, asbestos-cement products are widely used in construction andasbestos is used in brake linings for motorcycles and cars. A database is keptof companies which import asbestos products but this registry is not overseen
by any government department. There is no training of workers, no awarenessof the hazards of working with asbestos, no protective clothing or productlabeling.

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In Ecuador, the use of asbestos-cement products by the construction industry
for pipes and roofing materials is widespread. Construction workers have noknowledge of the risks, no training and no protection. Although ILO
convention 162 was ratified in 1990, there is no enforcement of its provisions.
There is no registry of asbestos-related cases.

Identification of Asbestos Defendants
For decades, a handful of North American and European multinationals controlled
the asbestos industry; fiber produced in their mines was processed and distributed allover the world. A brief examination of UK asbestos multinationals Turner & Newall,
Ltd. (T&N) and Cape Asbestos Co. Ltd., and Eternit International, a Swiss enterprise,
reveals a typical modus operandi. In 1974:“Turner & Newall were exposed as one of several companies that paid
indigenous workers below the poverty level and operated wage
discrimination.” 10
T&N’s workers in Africa were exposed to levels of asbestos contamination not
tolerated in the UK. In 1976, Dr. Hilton C. Lewinsohn, T&N’s Chief Medical Officer,
visited the company’s factories in Durban, Natal, South Africa. There was:“an obvious lack of safety consciousness… and the general housekeeping wasof such a poor standard that it would have to be considered as constituting a
hazard in some instances.”
In the Durban factory of Turners Asbestos Products, workers and supervisors:

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“had obviously not been instructed in the rudimentary elements of working ina safe and dustless manner. At tea-breaks, African workers simply sat on the
shop-floor and consumed their food among the dust. Of 600 workers X-rayed,
82 possibly had asbestosis – in Lewinsohn’s view, an ‘epidemic.’”
T&N’s Havelock Mine in Swaziland employed 500 workers underground and 300 in
the mill. Dust levels at the mine were up to 25 times as high as those permitted in
Britain at that time. Dr. Lewinsohn was appalled by the conditions in the mill:“I was in two minds as to whether I should enter the grading mill without theprotection of a positive pressure respirator. Going through the mill to a storage
shed and then through the shed was frightening. The operative sitting in a
glass box and operating the scoop which feeds fibre to the conveyor wascovered in fibre.”
Within two years of Lewinsohn’s visit, T&N commissioned a number of surveys at
Havelock. According to Historian Jock McCulloch:“The first survey of 271 workers at Havelock found 23 per cent of employees
had asbestosis, a debilitating fibrosis of the lung, while the incidence among
mill workers was 54 per cent. In addition, 17 per cent of workers had chronic
bronchitis and other chest disorders, including pneumonia and tuberculosis.
Those results need to be put into context. In 1978 the rate of asbestosis at
T&N’s Quebec mines was 5 per cent. A follow up study at Havelock found
two cases of asbestosis in miners’ wives. Presumably the women, who had nooccupational exposure, contracted the disease from the dust pouring out of themill and from the massive tailings or waste dumps which surrounded themine.” 11
In 1995, T&N sold their Zimbabwe operations to a local company: Africa
Resources. According to an observer in Zimbabwe, there have been no occupationalsafety improvements at the Havelock mine since the mid 1980s. The sale of overseas
asbestos operations to local interests is a typical “exit” strategy for asbestos
multinationals. No compensation is paid to former workers; no attempt is made to
deal with decades of asbestos waste. The local companies, generally backed bypowerful and influential businessmen, are not susceptible to the same internationalpressure as the multinationals whose shareholders and directors can be influenced byadverse publicity.
None of the former workers from the South African asbestos
operations have obtained compensation for their asbestos illnesses from T&N; due tothe financial status of T&N and that of Federal Mogul, its parent company, it isunlikely they will.
From its incorporation in Britain in 1893, Cape plc (formerly the Cape Asbestos Co.
Ltd., Cape Industries Ltd. and Cape Industries plc) played a leading role in the British
asbestos industry. The company had factories in Barking, Hebden Bridge, Uxbridge,
Manchester, Glasgow, Newcastle, Liverpool, Belfast and the Isle of Wight andsignificant overseas interests. In 1915, a report by the Government Mining Engineerof South Africa noted:

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“The history of the asbestos industry in the Cape has been, until quite recently,
practically that of the Cape Asbestos Company, and that corporation still
controls the great bulk of the production... (Cape) is also much the largest
European manufacturer of blue asbestos goods.”
Until 1979, when it sold its South African mining operations, Cape was one of thatcountry’s biggest producers; Gefco, a subsidiary of Gencor, a wealthy South Africanmining company with holdings in gold mines, was the other. In 1981, Gefco took overasbestos mines previously owned by Cape, closing the Pomfret crocidolite mine in1986 and the Penge amosite mine in 1990. 12 Until 2003, neither Cape nor Gefco had
compensated South Africans injured through asbestos exposure.
The Swiss company Eternit International, now Anova, had global asbestos-cement
interests, amongst which was the Everite company in South Africa. During the timethat Eternit was the main shareholder in Everite, it is alleged that miners and local
residents were exposed to high levels of asbestos; the mining towns remaincontaminated by waste from Everite’s operations. South African lawyer Richard
Spoor maintains:“There was a tacit agreement between the authorities and the industry to avoid
any measures susceptible (sic) to improve the workers’ health.” 13
In Spring 2003, Spoor travelled to Switzerland for discussions with Anova. Spoorsaid: “We want to talk, not make threats.” Hans-Rudolf Merz, Anovo’s Chairman,said:“We are prepared to talk, but legally I don’t see how Anova can be held
responsible since Eternit gave up any control it had 20 years ago.”
Clearly the implications of the settlement extricated by 7,500 injured workers andresidents from Cape plc were not lost on Mr. Merz who told a Swiss journalist of hisfears:“If there are proven cases of illnesses due to asbestos, I don’t see how we
could avoid our responsibility…(a global settlement) would open a Pandora’s
box and we would be submerged by demands from around the world.”
According to the article written by this journalist, legal actions against Eternit are
now proceeding in Greece, Italy, Brazil and Nicaragua. As the Group had subsidiaries
in 20 countries, who knows where the next writ will come from? Eternit victims in
Latin America who, until now, have been barred from bringing claims because of lackof legal representation, may find a new avenue open to them. An internet initiative has
been launched by defiendeteonline.com which aims to provide access to justice for
injured citizens in Latin America:“We offer administrative and economic support to the victims so they canhave the best lawyers to appeal to the courts in each country. We are a profit
organization so we can continue to defend people in the region.” 147

This new service might well find potential clients amongst former Eternit workers
in Mexico where the commercial use of asbestos began in the 1930s. Techno Eterno
Eureka, S.A., a subsidiary of the Swiss Eternit Group, opened the first asbestoscement factory in Mexico in 1932. Eternit’s investment in the country increased withfactories set up by subsidiaries: Eureka del Norte, S.A. de C.V. in Nuevo Leon in1956 and Eureka de Occidente, S.A. de C.V. in Jalisco in 1960. It would be surprising
if none of the 793 people who died from malignant mesothelioma of the pleura
between 1979 and 2000 were former Eternit workers, though“None of these deaths was recognised as occupational disease, according torecords of Social Security.” 15
There would appear to be a plethora of unrepresented claimants in Mexico.
Different Legal Systems, Different Results
Within the Member States of the European Union (EU), there is a diversity ofschemes and protocols for compensating victims with asbestos-related diseases. While
the EU favors harmonization within the single market, no attempt has been made to
introduce an EU-wide compensation scheme. An amendment to EU Directive
83/477/EEC on the protection of workers from the risks related to exposure toasbestos at work was proposed in March, 2002 to the Committee on Employment andSocial Affairs of the European Parliament. Although this Committee approved theamendment, it was not incorporated into the final directive. 16 The rejected amendment
stated:“Adequate compensation shall be available to all victims of asbestos-relateddisease, including those exposed to asbestos in non-occupational contexts.” 17
In the following sections, we will briefly examine contrasting EU compensation
schemes such as: asbestos personal injury litigation in the UK, the German public-law
occupational disease insurance scheme and the mixed system in Holland whereby
victims can choose to sue or mediate.
The United Kingdom
In the UK, personal injury litigation is the prime private legal remedy for securing
compensation for industrial disease; the most usual legal action for asbestos
compensation is taken by an injured worker against a former employer. According to
official statistics, more than 5,000 people died from asbestos-related diseases in 2002;
the fact that there are only 1,500 asbestos personal injury claims brought every year
leads one to conclude that the majority of claimants do not litigate.
UK asbestos settlements are influenced by the following:•••

the nature of the plaintiff’s disease; mesothelioma warrants a much larger
payout than pleural plaques;
the plaintiff’s age; the younger the victim, the more working years lost andconsequently the greater the amount of compensation sought;
the nature of the plaintiff’s employment; a company director will receive alarger settlement than a manual worker;
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the resources and ability of the plaintiff’s legal representation. A union-fundedcase handled by a specialist asbestos solicitor has a greater chance of receivinga large sum than a legal-aid case brought by a high street solicitor;
the condition of the plaintiff: if a claimant is still alive, compensation is likely
to be less!

Recent decisions in mesothelioma cases include the following:
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Anthony Farmer’s family was awarded a landmark £4.37 million ($7.06
million) by the Leeds High Court in 2003; the defendants were his former
employers; the record amount of damages acknowledged Mr. Farmer’s
meteoric rise from butcher’s boy to power-station worker then to gifted
entrepreneur; Mr. Farmer, who died at 47, was co-owner of Tyre Technics, theworld’s biggest tyre retread firm; in 1998, this company was sold for £30
million ($48.5 million);
the widow of Joseph Martin, who died in 1998 aged 51, received
compensation of £285,000 ($460,252) from Manchester City Council, hisformer employer, in April 2003;
the estate of the late Mr. H, who was 52, received £50,000 ($80,746); he had
no dependents;
the widow of Mr. A, who was 56 years when he died, received damages of£200,000 ($322,951);
Sylvia Barker, widow of Vernon Barker, was awarded £152,000 ($245,443)
for his death aged 57; the Judge reduced the damages by 20% because of“contributory negligence;” 18
Mr. T’s widow was awarded £175,000 ($282,562) for his death at 62;
Mr. O, 66 years old, received £125,000 ($201,830);
Mrs. S, a 73-year old living claimant, received £100,000 ($161,464);
Mr. F, a 76-year old claimant, received £86,000 ($138,845).

Since the House of Lords reversed “the perverse and absurd” High Court ruling of
Mr. Justice Curtis in the Fairchild case, 19 UK insurers have embarked on a highprofile campaign to off-load their asbestos liabilities. Their strategy has succeeded in
grabbing the Government’s attention; urgent reviews of the UK liability insurance
market and Employers’ Liability Compulsory Insurance regime have been ordered.
Germany
In Germany, compensation for occupational disease does not come directly fromformer employers. In return for contributions from all German companies, public-law
occupational accident insurers cover corporate liabilities. 20 There are 35 insurers
covering various industries and regions; amongst which are 7 for the constructionindustry and 5 for the metal-working industry. There are also 38 insurers for the
public sector and 11 for the agricultural sector. Although the governing bodies of all
the insurers consist of equal numbers of representatives of employers and employees,
all the costs are covered by the employers. If a German worker qualifies forcompensation, he receives his money from the insurance agency covering the specificindustrial sector in which he worked. For example, an asbestosis claimant who
worked in a brake factory would be paid by the occupational insurance funds of thechemical industry sector (Berufsgenossenschaft der Chemischen Industrie). 21 There9has been an increase in the number of asbestosis and pleural plaque cases recognizedin Germany in recent years. In 1994 this category was 4th in the list of recognizedoccupational diseases; in 1996 it was 3rd and in 1998-2001 it was 2nd, after deafness
cases.
According to German Government statistics, in 2000 and 2001 there were 957 and931 asbestos-related deaths, respectively. Data provided by insurers on the number of
newly acknowledged cases of occupational asbestos-related cancers paint a bleakerpicture:New Acknowledged Cases of Occupational Asbestos-related Cancers
in Germany
DiseaseCancer of the lung or larynx
Mesothelioma
Total

Year: 2000

Year: 2001

667
627

735
665

1,294

1,400

Scientists predict that between 2002 and 2020, 20,000 more Germans will die fromasbestos-related diseases. These numbers have started ringing alarm bells in theGerman insurance industry even though, so far, not one German industrial company
has been ordered to compensate injured victims. It is of interest to report that under
German law, injured employees are prevented from bringing compensation claims
against employers through their compulsory membership in a Berufsgenossenschaft.
In the case of gross negligence, it is the insurer and not the employee which can sue
the company.
According to a report by Eurogip: Occupational Diseases in Europe: A
Comparative Survey Conducted in 13 countries, (September, 2000):“In Germany, the doctor sends the declaration to the competent BG(Berufsgenossenschaften Scheme) and/or to the Labour Inspectorate. These
two organizations inform one another mutually of the declarations theyreceive. In theory, the victim’s employer is also required to declare thedisease. Moreover, the victim and his/her legal beneficiaries, and also thesocial insurance organisms (principally health insurance funds, but also
employment agencies and old age pension funds), can make a declaration. In
practice, the doctors initiate most of the declarations, the social insuranceorganisms ca. (circa) 20%, the victims ca. 10% and the employers ca. 3%.”
Legally, an occupational disease claim must be made by a German doctor
immediately. Unfortunately, according to Henning Wriedt, advice worker at theHamburg Occupational Health & Safety Advice Centre, this does not always happen;
Wriedt asks: “who will find out if the doctor does not file such a claim?”
The insurance organization can consult the Labor Inspectorate during the processingof a claim; however, the final decision remains the responsibility of the insuranceorganization. Although Berufsgenossenschaft personnel prepare the case and make a
recommendation, the case is decided by a two-person committee comprised of one
employers’ and one employees’ representative. Usually the preliminary

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recommendation is upheld; on the few occasions when no agreement can be reachedby the committee members, the bi-partite governing board of the
Berufsgenossenschaft decides. According to Mr. Wriedt:“If the claim is rejected, the claimant can appeal. For an appeal to be
successful, both committee members have to vote in favour of the claimant. If
the appeal is rejected, the claimant can litigate. If the claim is acknowledgedby the local or state court, the Berufsgenossenschaft can appeal; if the claim
succeeds in the federal court, it cannot. The process is complicated and can betime-consuming; there are cases which have taken more than ten years for the
courts to resolve. Normally, the decisions of the Berufsgenossenschaft,including the appeal, are reached within two years. If, however, the appeal isbacked up by relevant arguments, it might take longer, since the
Berufsgenossenschaft usually tries to refute the evidence. I have been involvedin a case, in which the appeal was acknowledged 8 years after the claim was
filed – but that really was an exception.”Controversies which can lead to court cases after an appeal for an asbestos-related
occupational disease is lost include disputes over: the degree of disability caused byasbestosis; the validity of a lung cancer case when the disease is not accompanied byasbestosis, asbestos fiber in lung tissue or proof of high levels of occupational
asbestos exposure. While there is no specific time limit for the examination of claims,
there is an expectation that they will be processed rapidly. Reports from Germany
suggest that this system works reasonably well if there is enough evidence and if theclaimant has mesothelioma, asbestosis or cancer of the lung, the bronchi or the larynx.
Respondents to the Eurogip survey were asked for information on what benefits
were available to a hypothetical worker with an asbestos-related disease:“A man aged 50 is affected by an asbestosis complicated by a lung cancer.
Twenty years ago, he worked for five years in a firm which produced car
brakes incorporating asbestos; he is also a former smoker. His current grosswage is 2,500 euros/month (30,000 euros/year/ $34,417). He has to take leavefrom his job to undergo surgery (a lung ablation), followed by major
therapeutic treatment (chemotherapy). After eight months away from work, heis incapable of resuming his job.
He dies a few months later leaving behind him a widow, four children from afirst marriage (aged 23, 20, 18, 17, all students), and two children from thesecond marriage (aged 4 and 1).”In Germany, no account is taken of the fact that the claimant was a smoker. During
his 8-month sick leave, he is entitled to:“full salary maintained for 6 weeks then net wage minus ca. 12% social
security contributions (but not more than 80% of the gross wage).”
After his death, the widow will receive a proportion of her husband’s
Berufsgenossenschaft pension; surviving children will also receive regular payments
until the completion of their education up to an age limit of 27.

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The Netherlands
With as many as 15,000 pleural mesothelioma deaths expected in the Netherlandsby 2028, 22 compensation for asbestos diseases is an important issue in the
Netherlands. In the 1990s, the number of asbestos personal injury cases increased
dramatically; over that period, two Dutch specialists handled more than one thousandasbestos cases. According to these lawyers, Dutch employers and insurancecompanies chose to settle the majority of asbestos claims with only 10-15%
proceeding to court. The availability to victims and their legal representatives of more
and better information led to a significant rise in the size of pain and suffering awards($50,000-$80,000).
While civil claims are an option for Dutch mesothelioma plaintiffs, the legal
process, as elsewhere, is not known for its speedy resolution of cases. In an attempt tostreamline the compensation process, the Institute for Asbestos Victims (IAV) was set
up on January 26, 2000. Asbestos victims entitled to apply to the IAV are limited tomesothelioma patients with traceable employers/insurers whose exposure occurred
within the thirty-year limitation period; to bring a claim before the IAV, individuals
must renounce the right to bring a civil action. If, however, the mediation fails,
victims can instigate legal proceedings. Through mediation with former employers,
the IAV aims to resolve claims within four months. Unfortunately, during the twoyear period commencing 27 January, 2000, the mediation process took 8-9 months. 23
Between 27 January 2000 and 7 May, 2003:•••

1,238 applications were received by the IAV; 83% were dealt with;
234 claimants received damages of $50,000 or more;
336 applicants received damages of $16,000.

From January 1, 2003, the IAV has been making advance lump sum payments of$16,000 (€15,882) within a few weeks of mesothelioma claims being received. Thereis no obligation for recipients to repay this money even if more compensation isforthcoming at a later date. Although the Government will try to recoup its
expenditures from negligent employers, the claimant will be paid regardless. The
scheme will apply to people who:•••

have been diagnosed with mesothelioma;
can show they were occupationally exposed to asbestos (e.g. were not exposed
to asbestos environmentally) and who they were employed by;worked in a job which is recognized as one in which occupational exposure toasbestos occurred.

The IAV is incapable of dealing with all Holland’s asbestos victims as its rules bar
asbestosis, lung cancer and the 30% of mesothelioma patients whose exposure took
place more than thirty years ago. Mesothelioma victims disqualified from making an
IAV claim, can apply to the Government Asbestos Institute (GAI), a tripartite bodywhich administers a national compensation scheme. There is a significant discrepancy
between the levels of compensation available from the two sources, with average
settlements of $45-$50,000 being awarded by the IAV and $17,700 by the GAI. By
comparison, compensation from a civil case could be in the region of $68,000.
Neither the IAV nor the GAI will compensate asbestosis or lung cancer victims. The

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Dutch Asbestos Victims’ Group is pressing for the extension of the national
compensation schemes to these victims.
Concluding Remarks
On January 30, 2003, it was announced that the U.S. multinational Honeywell
International Inc. intended to “sell” its global Bendix operations, with the exception ofcertain U.S.-based assets, and all asbestos liabilities to the Federal Mogul Corporation(FM). The letter of intent specifies that the Bendix companies which will be sold by
Honeywell include those:“in France, Germany, Italy, the Czech Republic, Spain, Turkey, theNetherlands, Portugal, China, Brazil and the United Kingdom andHoneywell’s joint venture interests (the “Asian Joint Venture Interests”) in
FMP Group (Australia) Pty. Ltd. (formerly Bendix Mintex Pty. Ltd.) FMP
Group Pty. Ltd. (formerly Bendix Mintex Pacific Pty. Ltd.), FMP Automotive(Malaysia) Sdn. Bhd. (formerly Don Brake (Malaysia) Sdn. Bhd.), FMP(Thailand) Ltd. (formerly Bendix (Thailand) Ltd.), FMP Distribution Co. Ltd.
and their respective subsidiaries (the “Asian Joint Ventures”).”
It appears that if this deal proceeds, non-U.S. claims for asbestos injuries will nolonger be possible against Bendix or Honeywell. This new scheme will mean that all
foreign claims will be brought against a paralyzed company, Federal Mogul, insteadof a viable company, Honeywell or Bendix. Although it is believed that insurance
policies purchased by Bendix will be transferred to FM, the experience in the UK
since T&N went into administration leads many to suspect that these policies may notprovide the insurance cover needed (Appendix A). What has become increasingly
clear to asbestos defendants is the need to find global solutions to their asbestos
problems. With so much at stake, multinational corporations and their insurers are
exploring every option to minimize their liabilities. While stakeholders in somejurisdictions are adopting constructive means to resolve asbestos-related problems,
others are using scare tactics to frighten national governments into allowing them tooff-load asbestos liabilities. In the climate of fear and panic which is being created,
there is a real danger that the right of workers to be compensated for asbestos injuries
will cease to exist. Global action by asbestos victims is needed to:
•
•
•
•
•
•
•

expose the “double standards” of multinationals which compensate injured
workers, family members and local residents in some countries and not inothers;reveal the repercussions of “exit” strategies adopted by multinationals toescape their liabilities;
monitor the evolving “avoidance” tactics of asbestos defendants;
assess the global impact on the environment of one hundred years of asbestos
use;devise cost-effective methods of minimizing environmental exposure toasbestos and decontaminating our communities;
protect future generations from the ravages of asbestos by implementing a
global ban on future use.

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To achieve this final goal of an asbestos-free future, it is crucial to expose theduplicity of industrial nations which profit from the export of a product deemed too
hazardous to use at home. Canadian asbestos stakeholders continue to lead the global
pro-chrysotile lobby telling foreign customers how it can be used safely under“controlled conditions.” In recent years, Canada exported more than 95% of all theasbestos it produced; unless Japanese and Mexican lungs are biologically different
from Canadian ones, and this has yet to be proved, this “double standard” isunacceptable. To expose the hypocrisy of Canada’s position, campaigners areorganizing a major event in Ottawa entitled: Canadian Asbestos: A Global Concern.
The September, 2003 conference will, hopefully, kick-start the Canadian debate on
this very touchy subject. As in all the best media events, a companion publication will
be on hand; it is entitled: The Asbestos War and can be obtained from Abel
Publication Services: www.ijoeh.com

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Appendix A
Article from the British Asbestos Newsletter

T&N: Incremental Progress?
Since UK legal actions against T&N Ltd. have been frozen by the administration order ofOctober 1, 2001, not one claimant has been paid (newsletter issues 45,46,48). Calls on the
Government to set up an interim compensation scheme have fallen on deaf ears; a request to the
US Creditors’ Committee of Federal Mogul, T&N’s parent company, to make ‘hardship payments’to UK victims has been rejected. Teams of legal and financial consultants on both sides of theAtlantic continue to milk the cash cow; unconfirmed estimates put the administrative cost of theFederal Mogul-T&N debacle at $54 million plus. With little visible progress, it is obvious that a
speedy resolution of this complex corporate crisis is unlikely. It is difficult to see why anyone,other than dying victims, would wish to resolve this situation quickly. What about insurers? Well,
yes there were insurance policies which covered T&N’s workforce; unfortunately, T&N’s insurers
are not inclined to pay compensation for asbestos-related diseases. Why not? The insurers claimthat coverage in the policies issued to T&N did not extend to asbestos-related diseases; in addition
there was, so they say, an “understanding” that T&N itself, not its insurers, would deal withasbestos claims. In return for premiums received, the insurers would, however, issue a Certificate
of Insurance which complied with the terms of the Employers’ Liability (EL) Act, thereby
enabling T&N, formerly the UK’s largest asbestos group, to continue trading. Desperate to escapeliability for hundreds perhaps thousands of claims, the insurers stridently maintain that theinsolvency of T&N changes nothing vis-à-vis the insurance cover available: no T&N, no asbestos
compensation - end of story.
Vehemently denying insurers’ restrictive interpretations of T&N’s Employers’ Liability Policies,
the UK administrators of T&N, Kroll Corporate Advisory & Restructuring Group, took legal
action to enforce cover. During hearings at the High Court on January 27-31 and February 3, 4, 1719, 2003, T&N’s barristers explained that until the availability of cover is established, leave tocommence or continue proceedings by asbestos plaintiffs against T&N was being denied by theadministrators under section 11 of the Insolvency Act 1986:“Where such insurance exists, then the burden of defending and meeting the claim will beborne by the insurer, and the continuation of the claim would not be inconsistent withachieving the purposes for which the administration order was made. By reason of the Third
Party (Rights Against Insurers) Act 1930, any claimant who was able to establish a claim
against T&N would be entitled to recover from (sic) any available liability insurance
directly from the relevant insurer. In the absence of such insurance, however, the granting ofleave to proceed against T&N would, the administrators say, cut directly across the purposeof the administration order.”If the validity of the EL policies could be established, the administrators would lift the stay onproceedings, so that asbestos claims could proceed against the insurers.
The May 9, 2003 judgment of Mr. Justice Lawrence Collins is detailed and wide ranging. In 156
pages of text, Collins discusses concepts such as approved policies, pneumoconiosis exclusions,asbestos conditions, deeming clauses and the existence of “a factual matrix… (and) a shared andcommunicated assumption.” Justice Collins reminds us that the Employers’ Liability (Compulsory
Insurance) Act 1969 states:
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“Except as otherwise provided in this Act, every employer carrying on any business inGreat Britain shall insure, and maintain insurance, under one or more approved policies
with an authorised insurer or insurers against liability for bodily injury or disease sustainedby his employees, and arising out of and in the course of their employment in Great Britain
in that business, but except in so far as regulations otherwise provide not including injury or
disease suffered outside Great Britain.”As “an ‘approved policy’ for the purposes of the 1969 Act means (section 1(3)(a)) a policy of
insurance which is not subject to any conditions or exceptions prohibited by regulations” and as an“employer has to be fully insured,” the fact that EL policies issued to T&N by the Royal Insurance
Company Ltd. (1969-1977) and the Brian Smith Syndicate at Lloyd’s of London (1977-1995)
seemingly excluded categories of asbestos-related illness was unacceptable: during the relevant
period of cover, “the Royal cover… (was) the sole source of T&N’s compliance with the 1969
Act... for T&N to comply with the 1969 Act the policy had to provide full cover.”Justice Collins cited evidence given by Royal employees Mr. Leslie Owen, Client Development
and Relationship Manager at the Manchester office until 1975, and Mr. Hanmer, Head of the
Liability Department 1970-72, Liability Underwriter 1972-72, Liability Underwriting Manager
from 1973 at the Liverpool head office:“It hardly needed to be said, but Mr Owen accepted that he knew that the employer had tobe fully insured, and… would have realised that even an excess under a policy, a small
excess of £50, would not be permitted under the Act. Mr Hanmer also accepted that no-one
underwriting EL business could have failed to have been aware that the insured was not
permitted to have a pneumoconiosis exclusion…
“that answer (which was also put forward by Mr Hamner) is uncommercial, unrealistic, andinfluenced by the legal arguments which the Royal is now deploying...”Using terms such as “fronting cover,” “a sham,” “a clean policy,” “a behind-the-scenes agreement”
and “ultimate responsibility,” the Court did not accept that “authorised” insurance companies
would willingly enter into illegal arrangements. Proceeding on this basis, therefore, the asbestos
exclusions in these EL policies were invalid:“I am satisfied that as a matter of construction the Asbestos Condition (in the Lloyd’s
policy) is just that, and not an exclusion… If it had been intended to be an exclusion, there
was no reason why it should have been included as a series of undertakings given to theSyndicate and that one of those undertakings involved T&N undertaking to reimburse theSyndicate for the stated aggregate sum.”
The pro-claimants’ decision by Justice Collins will increase the likelihood of compensation forasbestos claims from former T&N workers with post-1969 exposure. The administrators believethat these claims constitute 41% of the 614 current claims brought by UK employees; future
claimants will also benefit from this judgment. An additional 200 non-employee claims are
currently outstanding; these are for product liability, neighbourhood and bystander exposures.
Even though legal actions for these injuries are not covered by EL policies, the plaintiffs “remain
creditors of T&N alongside other creditors and the payment by insurers of claims for the period
1969 to 1995 will make more funds available to meet other uninsured claims.” The outcome of thiscase could have broader implications for insurers. As the wording of the discredited “asbestos

16exclusion” was standard throughout the industry in the 1970s, other exclusions could be voided.
According to Simon Freakley, Global Head of Kroll and Joint Administrator of T&N: “I suspect
this will be a defining point for other companies whose employees are pressing forcompensation… Clearly the decision today finds that the terminology does not exclude asbestos
related diseases and all insurers may find themselves liable for any other asbestos-related claims
against Employers’ Liability Insurance policies.”
Both insurers are now appealing the Collins decision. The appeals will run in parallel with theproceedings on “alleged misrepresentation and non disclosure by T&N” which constitutes thesecond stage of this action; a one-day Case Management Conference for the avoidance case istimetabled for mid-July, 2003. Until all these matters are decided, insurers will continue torepudiate calls for compensation. Simon Freakley is highly critical of the insurers’ behaviour
accusing them of attempting “to avoid their obligations with legal prevarication that considerably
delayed the hearing of this action.” The reaction of Susan Wilde, the widow of a T&N worker, tothe judgment was muted: “My husband died a cruel and painful death,” she said. “I’m very
relieved that the courts have delivered some sort of justice, but angry that we’ve had to wait solong for this day.” It is alleged that Mr. Wilde was exposed to asbestos during his 1967-1970
employment with T&N; he died of mesothelioma in August, 2002.
British Asbestos Newsletter, Summer 2003, Issue 51; website: http://www.lkas.demon.co.uk©Jerome Consultants

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References and Notes
1

Roberts D. Companies Fear Asbestos Claims Crisis. Financial Times, September 9, 2002.
According to Jean-Philippe Thierry, Chairman of Assurances Generales de France, the February 28,
2002 ruling of the French Supreme Court could cost French insurers US$6.68 billion over twenty
years.
3
Buckingham DA and Virta RL. Asbestos 2001 Annual Review. U.S.G.S Mineral Industry Surveys.
2002.
4
Virta RL. Worldwide Asbestos Supply and Consumption Trends from 1900 to 2000. U.S.G.S. Survey.
2003.
5International Labor Organization; web page:
http://webfusion.ilo.org/public/db/standards/normes/appl/index.cfm?lang=EN
6
Fedotov I. Technical Briefing Note: ILO International Instruments Concerning Safety in the Use ofAsbestos. October 16, 2002.
7
Kazan-Allen L. British Asbestos Newsletter. 2000;38 & 2001;44; http://www.lkaz.demon.co.uk
8
Joshi TK. Asbestos-related Morbidity in India Int J Occup Environ Health. 2003;l.9,3.
9
See reports: European Asbestos Seminar and The Latin American Asbestos Meeting on the IBAS
website: http://www.ibas.btinternet.co.uk
10
Tweedale G. Magic Mineral to Killer Dust - Turner & Newall and the Asbestos Hazard. Oxford
University Press, 2000:224.
11
McCulloch J. Asbestos Mining and Occupational Disease in Southern Rhodesia/Zimbabwe, 1915 to1998. History Workshop Journal. Autumn, 2003;56.
12
Meeran R. Cape PLC: South African Mineworkers’ Quest for Justice. Int J Occup Environ Health.
Jul/Sep, 2003;9,3:218-229.
13
Bormann AG, Hirsch V. Swiss Firm Faces Huge Asbestos Suit., April 19, 2003; web page:
http://www.swissinfo.org/sen/Swissinfo.html?siteSect=105&sid=1771458 [accessed April 21, 2003].
14
Email from Osvaldo Quiroga, 14 July, 2003.
15
Aguilar-Madrid G. Globalization and the Transfer of Hazardous Industry: Asbestos in Mexico, 19792000. Int J Occup Environ Health. Jul/Sep, 2003;9,3:272-279.
16
Directive 2003/18/EC of the European Parliament and of the Council of 27 March 2003. Official
Journal of the European Union. 2003;15.4,L97/48.
17
Damiao EM. Report on the proposal for a directive of the European Parliament and of the Council
amending Council Directive 83/477/EEC on the protection of workers from the risks related to
exposure to asbestos at work. 22 March, 2002:39.
18
The Judge reasoned that Mr. Barker had himself been in breach of the asbestos regulations during thetime he was self-employed.
19
Kazan-Allen L. Who Are the Victims? British Asbestos Newsletter. 2003;50;
http://www.lkaz.demon.co.uk
20
Kazan-Allen L. German Insurer Sounds Asbestos Warnings. January 17, 2003; IBAS website:
http://www.ibas.btinternet.co.uk
21
According to one German lawyer, workers in Italy, Turkey, Greece or elsewhere who succumb toasbestos-related diseases due to occupational asbestos exposure in Germany can bring claims under the
Berufsgenossenschaften scheme.
22
Segura O, Burdorf A, Looman C, Update of Predictions of Mortality from Pleural Mesothelioma in
the Netherlands. Occup Environ Med. 2003;60:50-55.
23
Information supplied by Yvonne Waterman.
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