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Clydeside Action on Asbestos are bitterly disappointed at the outcome of the vote concerning the Court Reform Scotland Bill. MSP’s voted by 81 votes to 31 to defeat proposed amendments which sought to ensure that all asbestos-related injury cases continue to be heard at the Court of Session. (click here for more information on the background to the reforms).
MSP’s rationale in support of amendment to the Bill:
The illnesses—many of which have been caused by occupational exposure to asbestos fibre, often many years ago—include mesothelioma, lung cancer, asbestosis and pleural plaques. The victims who suffer from those conditions are a legacy of Scotland’s industrial history and they deserve the Parliament’s full support.
“I expect the Government to argue that the complexity of asbestos-related conditions will ensure that cases are remitted to the Court of Session and are not considered under simple procedure. I do not doubt that arguments will be made about the difficulties of legislating for one group of personal injuries”.
However, the Parliament has already legislated for this group of personal injury sufferers by passing the legislation that the Government introduced in 2009. What has changed? Even if, because of the complexity of asbestos-related cases, it is highly unlikely that such cases would be considered under simple procedure or heard outwith the Court of Session, why not make it clear in the bill that the exclusive competence will not apply to asbestos-related cases and that they will not be considered under simple procedure?
What is the harm in providing that reassurance to sufferers of such industrial disease and their families and to surviving relatives? Amendment 61 would disapply the sheriff court’s exclusive competence from personal injuries that were caused by exposure to asbestos.
I welcome Clydeside Action on Asbestos to the public gallery and pay tribute to its great campaign.
“Of course, asbestos-related illness does not apply just in Clydeside and I have written to the Cabinet Secretary for Justice about one of my constituents, who is affected by asbestos in that particular way”.
The answer that members want—the answer that Clydeside Action on Asbestos wants—is in the answer to three questions that were put very succinctly and effectively by Elaine Murray. First, what is the harm in doing what Elaine Murray proposes in her amendments? Secondly, what is the answer to the question about exceptional circumstances? We already treat asbestos as an exceptional circumstance and the legislation that we passed in 2009 bears testimony to that. Thirdly, if the cabinet secretary still does not accept Elaine Murray’s amendments, can he at least tell us what he has done to fulfil the commitment that he made at the Justice Committee to ease the test for remit from the sheriff court to the Court of Session?
“I support the amendments in Elaine Murray’s name and I hope that, at the last minute, the cabinet secretary will have a change of mind”.
Dr Murray said she was disappointed that an amendment which sought to ensure that all asbestos-related injury cases continue to be heard at the Court of Session had been rejected. Now those asbestos-related cases deemed to have a value of less than £100,000 (this will be the majority of asbestos-related claims) will not automatically be dealt with by the Court of Session.
CAA are very concerned that the proposed changes will now see very complex asbestos cases moved from Scotland’s highest civil court, the Court of Session, to a new type of personal injury court. The Court of Session is highly experienced at dealing with asbestos cases and all this experience may be lost.
Specialist Solicitors Advocates, who currently represent asbestos victims at the Court of Session, will find it far more difficult to work in the newly created personal injury court. This of course is good news for the insurance industry who use their huge financial resources to do all they can to prevent asbestos victims and their families claiming damages.
Campaigners from the Clydeside Action on Asbestos charity, which supports those suffering from conditions like mesothelioma, left the public gallery when MSPs voted down the Labour amendment STV News Online: 7.10.2014
CAA members leave the public gallery when amendment is rejected
MSP’s rationale for voting against the proposed amendment?
Lord Gill, Scotland’s most senior judge, recommended that while reform to the civil court system was needed, the most complicated and important cases must remain at the Court of Session.
It is vital both that the civil justice system provides access to justice at a reasonable cost, and that the resources of the system are allocated fairly. That is not to say that the monetary value (if there is one) of the matters at stake should be the sole determining factor as to how much resource should be expended on a case. A number of different factors may be relevant. The need for a judicial precedent to clarify the law and/or enable the resolution of a number of other cases, especially in areas such as delict and contract where there is still significant scope for judge-made law, may justify the investment of significant resources in a case of low monetary value.
Other factors, such as the value society places on protecting the interests of children or vulnerable adults, or on enforcing high standards of health and safety in the workplace, will also be relevant considerations in the decision as to what is a proportionate amount of legal and judicial resource to devote to a case.
Scottish Civil Courts Review: A Consultation Paper. Chapter 1 Page 4. 1.13
CAA welcomed the principle of proportionality in so much as it was seen that the monetary value of a particular case should not be the sole determining factor in deciding how much resource should be expended on a case. Other factors such as enforcing standards of health and safety in the workplace are not only relevant but fundamental considerations in determining the amount of legal and judicial resource to devote to a case. In this respect we welcomed the Review’s statement that its recommendations would be predicated upon the principle that proportionality does not mean ‘justice on the cheap’
Asbestos cases easily met the criteria laid out by Lord Gill and so CAA believed that they should have been exempted from the reforms. However, 81 MSP’S felt differently.
What was their rationale?
Margaret Mitchell MSP (Conservative):
………….and I think that it would be wrong to single out asbestos cases. We should not distinguish between those cases and other cases in the personal injury category, which are wide ranging.
Christine Grahame, Justice Committee (Convener) MSP (SNP):
I will quickly say something about asbestosis cases. Members should not misunderstand the fact that I, among others, was not prepared to make them a special case in a special court. I was extremely sympathetic but, when we are making laws, we must consider the principle that is being applied. That principle must be applied across as far as we can see. Worthy though those cases were, I was concerned that, if we made a special case for them and something else came along that also ought to be in a special category, we would have to create that. Where would we end? We get into all kinds of difficulties of judgement.
Therefore, I regret it but, working on principle, it is important that we put cases on the same basis. Indeed, many asbestosis cases will be remitted to the Court of Session if complexity provides for that. 17:24
It is difficult to understand the comments from Christine Graham, Margaret Mitchell and others in light of Lord Gill’s recommendations at the outset of the current reforms. Why weren’t the Justice Secretary and 81 MSP’S convinced of the arguments laid out regarding asbestos cases? Why did SNP MSP’s decide to abandon the cross party support and consensus that asbestos issues have been afforded in the past and vote with the Conservative, L.D’S & Geeen party to defeat the amendment?
Why is it wrong to ‘single’ out asbestos cases? …. ‘I was not prepared to make them a special case in a special court’? ….’if we made a special case for them and something else came along that also ought to be in a special category, we would have to create that. ‘Where would we end’? Unfortunately, we know with the asbestos issue, where it will end. It will end in the deaths of tens of thousands of ordinary Scots men and women. It will end with the death of millions throughout the world. ‘Not a special case’?
Asbestos cases are different. Asbestos cases are not the same as other forms of personal injury. Asbestos disease kills 5,000 men and women every year in the UK. It kills tens of thousands globally each year. It will kill millions more. It kills people of all social class and people of all occupations. It pervades the schools our children are taught in. It pervades the buildings we work in. It pervades the hospitals we rely on. It’s in the majority of social housing built before 2000. ‘Not a special case’?
Asbestos cases are extremely complicated and involve health & safety issues which have wider public interest. That is why the Scottish Parliament has introduced legislation in the past acknowledging this fact. What other personal injury could lay claim to requiring such extensive legislation from the UK & Scottish Parliament in order to address the immense complexity that we see in asbestos-related cases? What other form of personal injury exercises the mind of the insurance industry as much as the asbestos issue does? What other ‘issue will come along’, as Christine Grahame fears, that could possibly compare to the global catastrophe and epidemic of asbestos disease, with the resulting deaths counted in their millions? ‘Not a special case’?
Some of the legislation recently passed by the Scottish and UK parliament:
- Damages Scotland Act 1993 (pre Scottish Parliament)
- Rights of Relatives (Damages) (Mesothelioma) Act 2007
- Damages (Asbestos Related Conditions) (Scotland) Act 2009
- Damages (Scotland) Act 2011
- and currently: The Recovery of Medical Costs for Asbestos Diseases (Scotland) Bill
There are also major pieces of legislation and compensation schemes created UK wide recognising the asbestos issue needs to be dealt with differently.
- Pneumoconiosis etc. (Workers’ Compensation) Act 1979
- Social Security (Recovery of Benefits) Act 1997
- Diffuse Mesothelioma Scheme 2008
- Control of Asbestos Regulations 2012
- Mesothelioma Act 2014
There are also a multitude of asbestos health & safety regulations which successive UK governments have introduced in order to deal with the asbestos issue.
The Asbestos issue: Not a special case?
Asbestos issues affect us all. Asbestos is present in the workplace in schools, homes and in the environment.
- Clydebank/West Dunbartonshire: The highest incidence of mesothelioma deaths in the United Kingdom and one of the highest in the world. (Mesothelioma in Great Britain 2014)
- Estimated 500 deaths per year in Scotland from asbestos related diseases mesothelioma and lung cancer. Research suggests there are probably about as many asbestos-related lung cancer deaths each year as there are mesothelioma deaths. This implies there are currently around 2 000 deaths each year in Great Britain due to asbestos-related lung cancer.
- There are more mesothelioma deaths here than in any other country on the planet
- Asbestosis is now one of the most deadly occupational diseases, and by any standards this constitutes a major tragedy of epidemic proportions.
- In 2011 in the UK there were 429 deaths where asbestosis is likely to have contributed as a cause compared with 109 in 1978.
- In 2012 an estimated 686 cases of non-malignant pleural disease mainly caused by asbestos were reported by chest physicians in the UK
- Asbestos-related diseases kill more people than road accidents in the UK each year, and the number is still growing. BBC Online http://www.bbc.co.uk/news/health-18456555
- The presence of Asbestos Containing Materials (ACMs) in schools has led to calls for special attention to protect children
- Why won’t the insurance industry offer commercial public liability insurance to some schools?
- Around 1.8 million of trades people are still at risk from exposure to asbestos (HSE Online)
- Exposure to asbestos is associated with the disease mesothelioma, lung, larynx and stomach cancers and there are around 4000 deaths each year (HSE Online)
- …… a total of 5 million to 10 million deaths from asbestos-related cancers by 2030. https://www.clydesideactiononasbestos.org.uk/statistics/global-epidemic-dangers-in-the-dust
- The World Health Organization (WHO) estimate that 125 million people encounter asbestos in the workplace, and the International Labour Organization (ILO) estimates that 100,000 workers die each year from asbestos-related diseases.
For men, in the UK, the geographical areas with the highest mesothelioma death rates were West Dunbartonshire (SMR 537, 95% CI; 468 to 614, 216 deaths),Barrow-in-Furness (SMR 540, 95% CI 465 to 623, 186 deaths), and Plymouth (SMR 341, 95% CI 308 to 378, 373 deaths).
For women, the geographical areas with the highest mesothelioma death rates were Barking & Dagenham (SMR 501, 95% CI 382 to 644, 60 deaths), Sunderland (SMR 470, 95% CI 381 to 573, 97 deaths) and West Dunbartonshire (SMR 398, 95% CI 267 to 572, 29deaths).
A standardised mortality ratio is used to identify ‘blackspots’, where a figure of 100 would be the expected number of deaths, given the age of the population
Male deaths are concentrated around ports and dockyards. Asbestos was used as insulation in ships and workers were exposed to it during fitting out and shipbreaking activities. The county district with the highest SMR is the shipbuilding area of Clydebank, which had an SMR ten times higher than the average for Great Britain. Other port and dockyard areas within Strathclyde (Dumbarton, Bearsden and Milngavie, Glasgow city, Renfrew and Inverclyde) and Dunfermline also had high SMRs. The overall SMR for Scotland was higher than the national average mainly due to these shipbuilding areas.
…….according to one cumulative estimate something in the region of 25,000 Scots will have died through exposure to asbestos by 2025. Asbestosis is now one of the most deadly occupational diseases, and by any standards this constitutes a major tragedy of epidemic proportions. Lethal Work: A History of the Asbestos Tragedy in Scotland: Ronald Johnston (Author) ) Arthur J. McIvor (Author)Professor Arthur McIvor. Professor in Social History. Director of the Scottish Oral History Centre Department of History University of Strathclyde.
Britain, it turns out, is today at the peak of a mesothelioma epidemic. There are more mesothelioma deaths here than in any other country on the planet. With an annual toll of about 2,500, more than twice as many people die of the disease as die in accidents in motor vehicles. Asbestos: the killer that still surrounds us. by Harry de Quetteville
Although the import, supply and use of all forms of asbestos has been banned for a long time, a high number (around 1.8 million) of trades people are still at risk from exposure to asbestos. Many buildings, plant and equipment built before the year 2000 may still contain asbestos-containing materials that could be disturbed by trades people carrying out work.
Exposure to asbestos is associated with the disease mesothelioma, lung, larynx and stomach cancers and there are around 4000 deaths each year. Many of these deaths are due to exposures in industries and activities that no longer exist, although, a quarter of all deaths are amongst trades people with exposures relating to the disturbance of in situ asbestos containing materials. http://www.hse.gov.uk/aboutus/occupational-disease/cancer/asbestos.htm
Our courts must be ready to deal with this ever increasing complexity of asbestos litigation; health and safety law, liability, causation, date of knowledge etc. CAA believe this is best achieved by ensuring that the most experienced advocates and judges are available to those involved in asbestos related litigation. We believe this is currently available in the Court of Session and accordingly we believe that all asbestos related claims be dealt with at this level. CAA are bitterly disappointed that the Scottish Parliament did not recognise this. We believe that the opportunity for the Scottish Parliament to make a statement that it takes all asbestos related cases seriously has been lost. There is no other man-made global epidemic and tragedy like the tragedy of asbestos related disease. If the asbestos issue is not a ‘special case’, What is?
I fully acknowledge that asbestos cases can be complex. However, on whether they should all be able to be raised in the Court of Session, regardless of value, I agree with Sheriff Principal Taylor, who said:
“a complex asbestosis case will probably be remitted to the Court of Session. However, even if it were to remain in the sheriff court, it would almost certainly merit sanction for counsel.”—[Official Report, Justice Committee, 22 April 2014; c 4527.]
That is true of the sheriff court, the new personal injury court and the sheriff appeal court.
The Government ‘believes’ that all cases that merit counsel will continue to benefit from it and that a complex asbestosis case will ‘probably’ be remitted to the Court of Session. However, the Government or Parliament cannot guarentee this unless legislation is passed to enshrine it in law.
John Brown, from West Calder, who worked in Clydeside yards, said:
The threshold will affect 90% of our claimants, who will be sent to the sheriff Court. It’s ridiculous. MacAskill should resign.
Ron Marsh, from Stonehaven, was exposed to asbestos when he worked in the Cowlairs industrial area of Glasgow decades ago.
Being diagnosed with an asbestos-related illness is devastating. My message for our justice secretary is very simple.
Mr MacAskill, please do not allow court reform to hand a gift to the insurance industry, who behave in a shameful way towards asbestos victims and their loved ones.
Asbestos sufferers expect you and your Government to be on their side
Susan Stephen. “Really disappointing. It’s hard enough for these families”.x
Elaine Ogilvie. “This is disgraceful! Thanks to Clydeside Action on Asbestos for this. Good to see you on Facebook and highlighting this devastating disease”.
Nicola Gardiner. “Great to see the page being used. 100% behind you but I’m sure you’s already know that. Keep up the awareness.”
Marilyn Fraser: “ cannot believe the way these people who have already suffered so much have been treated and the way they were addressed in the Scottish parliament.”
Phyllis Craig MBE, Chair of CAA said:
“It is appalling what has happened. People are so angry. This means the insurers win but the people with asbestosis lose”.
CAA will never give up the fight for justice for the victims of asbestos. We will continue campaigning. We would like to thank all those members of CAA who attended yesterday (7.10.2014). We are extremely proud of all our members and all those who continue the fight for justice.
Daily Record: Terminally ill grandad tackles MSPs over refusal to offer more support to asbestos victims
Charlie Bridgewater, member of CAA and mesothelioma sufferer, has given an interview to the Daily Record/Sunday Mail on his feelings following MSP’s voting down the proposed amendment to the Court Reform Bill which would have protected sufferers from higher legal costs. Click here to read the article in full
The Justice Secretary Kenny MacAskill’s response to the concerns raised by CAA members?
Kenny McAskill. Twitter: 7 October 2014.
Delighted? We can assure the Justice Secretary: CAA members are far from being delighted.
The debate in full: Afternoon Plenary – Scottish Parliament: 7th October 2014
Last updated 6 November 2014: 16.55pm