Compensation, Not Justice A discussion paper on asbestos abuse read to the Scottish Parliament by James Kelman.

'I never sit down with an idea' … James Kelman in GlasgowA little on the wider struggle against asbestos abuse: my experience of the industry itself began fifty years ago at the age of 19. I worked as a mixer for Turner & Co., Manchester, producing asbestos by-products. Every hour I emptied barrels of raw asbestos fibre into a mixing machine, added cement and water. After each mix I scooped out the residue by hand. A young guy. Who cares about breathing masks and gloves, and over a period of months millions of raw fibre were in the air I breathed.

No Pleural Plaques show on my lungs as far as I know. We discover their existence when our lungs are x-rayed. Mine have not been x-rayed for years. In themselves Pleural Plaques do not damage our capacity to breathe, as far as we know, and are not a precursor to asbestos-related diseases, as far as we know. But psychologically, and to that extent physically, their existence does produce an effect in us. Their existence confirms not only that we were exposed to the risk of asbestos poisoning, but that our bodies have been invaded. The poisonous fibres are within us. This makes us more liable to develop an asbestos related disease than those who dont have any Pleural Plaques. This is borne out by insurance companies offering to pay out a sum of money in advance of any asbestos related disease being contracted.

Calcified pleural plaques of a 73-year old Caucasian male

If Pleural Plaques are found in my lungs it will produce a level of anxiety in me that I cannot predict. I suspect that each day I’ll be looking at my family, my kids, my grandkids. Each day I’ll be seeking out signs and symptoms of asbestos-related diseases and illnesses. What we are talking about is mortality; our own mortality. We no longer take it for granted. That is taken from us, and from our family. This is the reality of Pleural Plaques. Anybody who argues that it has no bearing on our health and physical well-being, either hasn’t thought about it, or else is making it up, for their own ends.

People engage in this wider struggle through personal or family attachment but can also be moved to support through solidarity, by a hatred of injustice. In the early stages of involvement we discover some basic facts that lead us to wonder what on earth is happening! Why are the most obvious and glaring wrongs being treated not as wrongs at all but as a kind of complicated collection of logical and linguistic errors, and system malfunctions, that don’t seem to bear any relation to “real life”. An example of this might be the word ‘justice’ itself. We can’t even take that for granted. Do I actually mean ‘justice’ or do I mean ‘social justice’ or do I mean ‘natural justice’?

The truth is we don’t find justice in compensation claims. Compensation is what it is: compensation. Those who suffer asbestos-related diseases will have their own ideas on justice. For them there is no cure. No return to health. Those who don’t understand the struggle talk about justice but justice cannot happen. The reality is that people are being compensated because there IS no justice. It is too late. Their health has been taken and cannot be returned. They have to cope with a further horror. Their health, and in far too many cases their very lives, have been taken through criminal negligence and those responsible are not being be held to account.

Yet people fight on. It is a heartbreaking struggle that for most is obscured in myths, mystery and secrets; disguised and concealed in jargon, where we get lost in a shadowy world of medical and legal definitions. A woman I know is engaged right at this moment in a posthumous claim following the death of her husband. He died of mesothelioma; at least he was diagnosed with mesothelioma. This diagnosis was made “in life”. Do people know what that means? It amounts to a clinical diagnosis, as I understand it, the medical practitioners arrive at their diagnoses through examining the patient at their bedside; by observation, the effects of treatment; the patient’s medical history and work history. The man was diagnosed with mesothelioma by the medical practitioners who attended him inside and outside hospital.

Here is a range of conditions, diseases, harms and symptoms the man suffered “in life”, which made the diagnosis possible: Bronchopneumonia, Asbestos-Pleural Disease, pleural effusion with trapped lung; chest pains, breathlessness and shortage of breath; atrial fibrillation, asbestos pleurisy, weight-loss, fatigue, unable to walk any distance, hypertension; extensive calcified pleural plaques consistent with a past work history of asbestos exposure. He was a non-smoker; no history of asthma or COPD [chronic obstructive pulmonary disease]. He worked as a riveter in a Glasgow shipyard fifty years ago.

People with any knowledge of mesothelioma will not be surprised by such a diagnosis. It seems unquestionable. Post mortem findings revealed something like 87,000 asbestos fibres in an ounce of his body tissue. However, the diagnosis was challenged by the phsyician who did the medical Report of Cause of Death. He found that the evidence was “not compelling at autopsy”. Therefore Mesothelioma is excluded from the death certificate which has severe repercussions for the woman’s posthumous claim.

One question a family asks in a case like this is why would they want to challenge the diagnosis in the first place. Does it mean the other medical experts were wrong? No. Next question: given the range of conditions, diseases, harms and symptoms the man suffered surely the diagnosis of mesothelioma was justified? Yes, “in life”, not in death; the evidence at autopsy is “not compelling”. But what does “compelling” mean? I think it amounts to “an overwhelming force of evidence”, such that the diagnosis is beyond dispute by medical experts like him. Surely in Civil Law we don’t require that kind of proof. Surely that weight of proof is for Criminal Law? Yes, I thought so…

This case is not exceptional. Those who suffer the disease do not get a chance to cope with the trauma. Those nearest and dearest don’t get the chance to grieve naturally. They are all too caught up in the legal twists and turns. Time after time after time they want to forget all about it. Some throw in the towel. Some don’t. They find the necessary energy and courage to continue the fight, supported by family and close friends.

Many who profit by the iniquities of this system prefer it when they give up the struggle. Others profit the longer the case is dragged out. The more obstacles and barriers the system erects the better. The last thing required are rules and principles grounded in justice – even worse: Laws!

The crucial point is that ordinary common sense views on the law and ideas of justice do not apply. People new to the struggle begin in the belief that the law operates as the means to an end, and the end is justice. If truth is revealed justice must follow! This naivety damages their case.

The more cynical will argue that each and every financial settlement in asbestos-abuse litigation is a “no-crime” settlement. Why? Because criminal charges are never brought against the perpetrators. Years ago campaigners sought to bring certain cases to court. It was thought that by highlighting these the public would come to see the nature of the crimes; thus the campaign for justice would move forward by leaps and bounds rather than slow shuffles and baby steps. A famous case occurred twenty years ago at the Court of Session, Parliament Square. Pat McCrystal’s campaign. People here will remember. Some were involved!

Pat was terminally ill, diagnosed mesothelioma and should have died months earlier. He kept going, assisted by friends, supporters, a proper cancer diet, and the fire in his belly for justice. He was a shipright to trade and taught apprentices. He felt guilty that he had brought young men to an early death. He wanted the full guilt of his employers exposed in public and some kind of court ruling that might aid the struggle, maybe by setting in motion a criminal prosecution. He rejected each increased settlement, stressed to his solicitor that the money was immaterial. Finally Pat was made an offer he couldn’t refuse; his legal representation would withdraw if he did not accept the full and final financial settlement. That would have left him high and dry, with nowhere to turn. He had no choice but to accept that final offer.

A well-known lawyer of the day had been withering about the campaign, and made the comment: if you want justice go to Parliament. However, that final offer they made to Pat McCrystal included disclosure of liability and that was important. And in regard to going to Parliament. Here we are…! although nowadays it’s a different Parliament…

Many find that it saves time and stress to assume that Civil Law in regard to industrial disease is designed to safeguard the guilty. By acting on that assumption they feel it is more straightforward to fight their way through a legal and medical minefield that seems designed to squeeze the last ounce of breath from their bodies. In Scotland the situation is much stronger than in the rest of the UK. There have been “four pieces of progressive asbestos legislation passed since 2006” by the Scottish Government. These are major steps. So too this latest proposal put forward by the Research Group at Stirling University which will be of tremendous support to those seeking to cope with the realization that effects of the deadly fibre have been found within them. The information provided in this proposal and in the Minister’s response to it will assist practically in the wider struggle. The recommendations set out here show practically and economically further ways forward that the Scottish Government can take in support of these tens of thousands of people whose lives have been traumatised and jeopardized through no fault of their own. If fine points require to be tuned then others far more qualified than myself will address the ways this can be applied.

Even old anti-parliamentarian skeptics like myself are gratified to see this level of support from the Scottish Government. No matter what those opposed to national self determination may want to accept, the reality of the early condition of Pleural Plaques is acknowledged in Holyrood. In England Wales the British Government withdrew this form of acknowledgment, and compensation a while back.

— James Kelman