Comment and discussion
The asbestos expert interview
An interview with Bob Clark, [retired] Consulting Engineer, specialising in asbestos claims
[March 2009].
How many reports have you written and over how many years?
I was a HSE/Factory Inspector from 1975 – 1990. Thereafter in private practice, I have written on average about 120 reports a year until 2008. Of the 120, about 10 a year could not go forward. Of course, by time I am instructed, solicitors have already sifted out the more obviously difficult claims that cannot go forward including those where the employer has closed down and an insurer cannot be found.
Did HM Government do enough?
Merewether got it right in 1930 as to heavy dust exposure, for example, in asbestos factories where crude asbestos was processed and converted into asbestos goods. Thereafter, I take 1965 as the definitive "trigger" date when industry and other interested parties ought to have known about smaller amounts of dust causing mesothelioma. As a judge reportedly said, although this may be apocryphal, “The Sunday Times’ article, "Scientists track down killer dust", was read at directors’ breakfast tables.” It is clear that, during the 1940s and 1950s, full disclosure of the hazardous nature of asbestos was deliberately withheld from Government by the asbestos industry and that the asbestos industry was lobbying hard in their own financial interests. The net result was that attempts to introduce new legislative controls were held back. For example, the introduction of the revised Shipbuilding Regulations was held back from early 1950s until March 1961.
Photo from internet
Do you believe in the "one fibre" theory?
It seems to me that some individuals are more susceptible than others and develop mesothelioma after sustaining seemingly very low exposures to asbestos fibres. I can recall preparing a report in connection with a claim that concerned the domestic exposure of two boys who both contracted mesothelioma as a result of inhaling asbestos fibres that originated from their father's contaminated woolly jumper that he wore at work. Conversely, I find it astonishing that a few laggers, who must have sustained massive asbestos exposures over years, do not contract mesothelioma. There is no doubt that the risk of developing mesothelioma increases as the inhaled dose increases but why some individuals appear to be at a greater risk is a matter for the medical experts to consider.
Measurement of dust in the workplace has been very difficult and techniques developed slowly over the years. Until the membrane filter method was universally adopted in the 1960s, the UK and the USA used different techniques and adopted hygiene standards that could not be readily compared.
Do you blame HM Governments for not doing enough to save lives?
The blame lies squarely with the asbestos industry who failed to provide proper and full information to the Government. We all learnt a great deal from the T&N documents which emerged into the public domain following the Chase-Manhattan litigation in the USA. But even now, as I understand it, because of the vast amount of documents in the T & N archives, there has still not been a full examination of all the documents. Before this disclosure, documents, which had been signed by senior executives, were routinely served stating there were no relevant documents to be disclosed. But, when their archive was searched by the US lawyers, this proved to be manifestly untrue. I recall a legal executive having to try to explain this situation to the Court and saying in effect "what can I say" and having to admit that there were no excuses for failing to provide this information to the Claimants’ lawyers and the Court.
It should be remembered that the Government found itself in a paradoxical position with HMFI and HSE advocating the introduction of strict control measures concerning the use of asbestos-based materials and a ban on the use of crocidolite-based materials with a view to reducing risk to health while other Government departments were still insisting that asbestos should be used for fire prevention purposes in new buildings. Whilst with hindsight, it appears that the Government moved too slowly, whether or not there is ultimate culpability still needs to be fully investigated.
What is your view of the Sicily prosecutions and directors of Eternit being jailed?
Ultimately, even those in the asbestos industry will get their comeuppance. It is reported that, in the past, senior executives in the asbestos industry have developed and died from mesothelioma as a result of their occupational exposures to asbestos fibres.
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The expert counsel interview
Roger Hiorns, 9 Gough Square chambers, London (2 2 2011)
From your experience when representing asbestos claimants what would you consider to be the thorny issues today?
The thorny issues of the day appear to be: firstly, what dose of exposure to asbestos is required to make a "material increase in the risk" of developing mesothelioma?; secondly, what does a claimant have to prove to satisfy a court that his lung cancer was caused by asbestos exposure?; and, thirdly, which insurer should pay an asbestos claim. Everyone seems to agree that the decision by the Court of Appeal in the "trigger issue" litigation left the law in a very unsatisfactory state.
What are your views on low dose claims before 1965?
Low dose claims before 1965 are fraught with difficulty unless there was a statutory duty which applied. Common law duties before 1965 will not assist a claimant in a low dose claim because employers would not be taken to have foreseen injury from low dose exposure. Unfortunately, most low dose claims before 1965 will not succeed.
Do you consider that the Mesothelioma Fast Track proceedure has been a success and do you believe it could be improved.
Everyone involved in asbestos litigation agrees that the mesothelioma fast track scheme has been an unparalleled success. The vast majority of mesothelioma victims now obtain compensation in their lifetime and this gives justice a good name. The only criticism there might be of the present system is that Masters could and should impose even tighter timescales on defendants in respect of disclosure of documents and service of witness statements.
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See also "Personal Injury Claims" section of this website for case reports/histories
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A brief chronology of the Porton Down litigation -"volunteers" and chemical warfare agent experiments 1940s - 1980s
"If we tell them that the experiments should be lethal there would inevitably be a sharp fall off in numbers, and probably a degree of embarrassing publicity. On the other hand, if no more warning of the danger is given than at present, we may be quite rightly accused of deliberate misinterpretation in the future".
Memorandum civil servant [1959].
1994. [March] G. Carter researcher and official historian for Porton Down's "Loose Minute" 30th March 1994 refers to a Treasury Solicitor letter dated May 1953 relating to Ronald Maddison's death. Disclosed for inquest in 2004.
1994. [November]. First letter of claim for Michael Roche to Director of Porton Down also requesting disclosure.
1995. [April] Press conference and Press Release by Derek Fatchett MP (Labour Shadow Minister Defence) - calling for inquiry along lines of Clinton radiation experiments and long-term health study of veterans. See Press Release “Human experiments at Porton Down”.
1995. [August] Section 10 certificate issued by Minister of State DSS (re Michael Roche) claim barred state MoD by reason of Section 10 Crown Proceedings Act.
1996. House of Commons parliamentary debate "Michael Paynter "a Porton Down "observer".
http://www.publications.parliament.uk/pa/cm199596/cmhansrd/vo961016/debtext/61016-14.htm
1997 First meeting solicitors with MoD to attempt settlement for veteran claims. Claims denied inter alia Section 10 applies.
1997 [12 2] Letter MoD Dr J Reid Minister of State for the Armed Forces to M Roche. Refuses long-term health review for veterans upon "grounds of cost and impractical".
http://www.theyworkforyou.com/debate/?id=1998-03-17a.1196.5
1998 House of Commons debate – Hansard - "Gordon Bell" - Chris Mullen MP
http://www.publications.parliament.uk/pa/cm199798/cmhansrd/vo980317/debtext/80317-31.htm
1999 [24 8) Llias Craik sister of Ronald Maddison instructs solicitors. Letter of claim and request for disclosure to DERA Porton Down.
1999 Letters from MoD/DERA Porton Down in response to letter of claim for Llias Craik sister of Ronald Maddison - “Prior to May 1987 service personnel or their dependents in cases of death were prevented from pursuing claims for compensation from the MoD by Section 10 of the Crown Proceedings Act 1947…".
Ken Earl first chairman of PDVSG (actor in "Flying Squad" in his earlier years).
1999 “Operation Antler” Wiltshire Police investigation commences
1999 [15 10] Letter MoD - “...[t]urning to the question of compensation I am afraid that there is nothing that I can add to the advice previously provided to you by DERA in their letter 21 September. The position is that as Mr Maddison’s service in HM Forces was prior to the repeal of Section 10 of the Crown Proceedings Act 1947 the MoD is prevented from offering your client any compensation…”.
2000 “Gassed” - Rob Evans [Guardian] published.
http://www.amazon.co.uk/Gassed-Behind-Scenes-Porton-Down/dp/1842320718
2000 BBC documentary “A Death at Porton Down”.
2000 Porton Down Veterans Support Group [PDVSG] established.
2000 [October] Dr Moonie MoD Minister announces MAP and MRC studies into long-term health of Porton Down volunteers.
2000 Alan Care "Poisoned by their own people”. The Independent.
http://www.independent.co.uk/news/uk/crime/poisoned-by-their-own-people-634147.html
2000 [April] Porton Down Human Guinea Pigs – Gassed without consent" Alan Care (APIL Focus and "NESA news")
2000 Further meeting with MoD to attempt to settle claims.
2000 [November] Department of Health announcement of Medical Assessment Programme at St Thomas’s Hospital, London
2001 MoD announces Prof Sir Ian Kennedy to write ethics study for MoD “Historical Survey of Porton Down experiments”.
http://www.mod.uk/DefenceInternet/AboutDefence/WhatWeDo/HealthandSafety/PortonDownVolunteers/
Ronald Maddison in 1953
2002 [28 7] HM Coroner David Masters makes application to High Court and Attorney General for fiat for a new inquest into death of Ronald Maddison.
2002 [November] Lord Chief Justice Woolf orders new inquest.
http://www.guardian.co.uk/uk/2002/nov/18/military
2003 [7.7] CPS decision notified to veterans not to prosecute 66 “development“ cases as having been submitted by Operation Antler.
http://news.bbc.co.uk/1/hi/england/wiltshire/5071770.stm
2004 ( March) "Clinical findings in 111 ex-Porton Down volunteers" Lee et al. Porton Down Volunteers' Medical Assessment Programme (PDVMAP). "Conclusion: On a clinical basis, no evidence was found to support the hypothesis that participation in Porton Down trials produced any long-term adverse health effects or unusual patterns of disease compared to those of the general population of the same age".
http://www.ncbi.nlm.nih.gov/pubmed/15149006
2004 [5th May] Ronald Maddison inquest commences in Trowbridge, Wiltshire before a jury.
http://www.guardian.co.uk/uk/2004/may/05/military
2004. During the inquest a 1953 letter from the Treasury Solicitor to Ministry of Supply [forerunner of MoD] is disclosed stating: ‘…The sentence ‘Tests are carefully planned to avoid the slightest chance of danger’ has proved misleading. Indeed it is difficult to see how it was ever possible to say truthfully that tests with lethal gases did not contain ‘the slightest chance of danger’….”. A second letter 15/8/1953 states that Section 10 does not apply to the Maddison experiment. “..When the case was referred to me previously I did consider the relevance of Section 10 of the Crown Proceedings Act 1947 but I came to the conclusion that it had no application. On the information before me I am still of that opinion…”
2004. Maddison inquest told about secret and officially denied MI6 LSD experiments at Porton Down in 1950s.
2004 [1.9] Professor Sir Ian Kennedy gives evidence at inquest. [Extracts from the Court transcript]: Kennedy – "We are not in the realm of holy writ, as you are trying to point out here. I doubt there is much in the literature on that, but I would say, yes, there may have been some then who would argue the point. I think the argument was bad then and I think the argument remains bad now. That is not to say there is no room for legitimate disagreement...the uncertainties were so great, that before proceeding to further research they should have been appropriately tested, analysed, with a view to controlling them, otherwise one is in the territory of an uncontrollable danger, and ethically, one should not be in that territory in terms of exposing volunteers to it. It is wrong to do so…"
2004 Veterans Agency (“War Pension”) appeal allowed for Michael Paynter and award for General Malaise (Chronic Fatigue Syndrome) and eczema. Michael Paynter had attended London Smog experiments at Porton Down. Archive document: November 1954. "14th meeting of the ACSRTD (Biology Committee) minutes – (b) Smog research. THE CHAIRMAN considered it refreshing that the committee could turn to a purely civilian problem…asked Professor Christie then to sum up the position as Chairman of the Medical Research Council’s Committee on smog. MR PATTLE said that the work being undertaken at Porton at the request of the Medical Research Council…”.
2004 [15 November] inquest jury return verdict that Ronald Maddison was "unlawfully killed" (54 days of evidence).
http://news.bbc.co.uk/player/nol/newsid_4010000/newsid_4014100/4014195.stm?bw=bb&mp=wm&asb=1&news=1&ms3=22&ms_javascript=true&bbcws=2
Photo. Reconstruction 1953
2004 [20 12] MoD Minister Ivor Caplin statement to House of Commons and MoD agree to pay Maddison family compensation and apologise but will also judicially review the jury inquest verdict.
2004 "After the inquest. Porton Down revisited" Alan Care .APIL Focus
2005 [January]. "Exposed" article from The Lawyer by Jon Robbins.
http://www.thelawyer.com/exposed/113575.article
2005 [January] Hansard House of Commons ("Douglas Shave") debate
http://www.publications.parliament.uk/pa/cm200405/cmhansrd/vo050110/debtext/50110-33.htm
2005 [27.1] MoD waive Section 10 defence as letter from Treasury Solicitor from 1953 had "surfaced".
2005 [22.2] Second Adjournment debate House of Commons "Porton Down" . MPs cross party call for Public Inquiry. See Hansard. Anne Widdecome MP Maidstone (for Ken Earl) - “This is an appalling story of an arrogant state and innocent young men. A story of a State that believed it was acceptable to experiment on its own citizens without giving the proper information…a story of innocence and trust…There are times when government should say ‘wrong was done’ even if the matter was in the past...".
http://www.kent.ac.uk/porton-down-project/DEBATEHOUSEOFCOMMONS2222005.pdf
2005 [18.3] Further meeting with solicitors for family and veterans and MoD to try and settle claims.
2005 [19 4] MoD given permission to bring judicial review of inquest verdict by Mr Justice Andrew Collins. High Court. R (on the application of MoD) v Wiltshire and Swindon Coroner (Craik and others, interested parties) All England Law Reports 2005 Vol 4. pages 40-51. [2005 EWHC 889 (Admin)].
http://news.bbc.co.uk/1/hi/england/wiltshire/4459217.stm
2005 [October] BBC documentary "Cold War Dirty Science".
2006 [13 2] MoD v HMC Judicial Review hearing. MoD accept that Ronald Maddison was unlawfully killed by reason of gross negligence in the conduct and planning of this particular experiment. The MoD withdraw their Judicial Review challenge and the jury Inquisition is amended.
http://news.bbc.co.uk/1/hi/england/4709526.stm
2006 [February] First three of five MoD/MI6/SIS "mind control" Porton Down LSD claims settled.
http://www.guardian.co.uk/uk/2006/feb/24/military.past
2006 [May] MoD settle Ronald Maddison claim for £100,000.00.
VIDEO: BBC - http://news.bbc.co.uk/player/nol/newsid_5010000/newsid_5018400/5018468.stm?bw=bb&mp=wm&news=1&bbcws=1
2006 [June] MoD publish "Historical Survey of the Porton Down volunteer programme" which includes Prof. Sir Ian Kennedy's chapter on ethics.
2007 [December] Formal mediation MoD and veterans resulting in the settlement of claims for £3 million and an apology to be given in the House of Commons.
Hansard:
Porton Down Veterans
The Parliamentary Under-Secretary of State for Defence (Derek Twigg): The Ministry of Defence has for some months been in discussions with solicitors representing a group of Porton Down veterans regarding compensation claims arising out of their participation in the programme of trials undertaken at the Chemical Defence Establishment during the cold war. I am pleased to report that an amicable settlement has now been reached with respect to these claims. This settlement is without admission of liability by the Ministry of Defence and involves the payment of a global sum of £3 million in full and final settlement of all claims made by the group.
The Government have in the past made clear the debt owed by the nation to those who took part in the trials at Porton Down designed to ensure that the United Kingdom had the defensive and deterrent capabilities to counter the real and horrific threat that chemical weapons would be used against our armed forces or civilian population, as they had against others; the security of the country rested on these trials and the contribution of those who took part in them.
The trials were in many cases conducted under considerable pressures of time as new threats emerged. The Government accept that there were aspects of the trials where there may have been shortcomings and where, in particular, the life or health of participants may have been put at risk. The Government sincerely apologise to those who may have been affected.
http://www.publications.parliament.uk/pa/cm200708/cmhansrd/cm080131/wmstext/80131m0001.htm
Guardian report:
http://www.guardian.co.uk/politics/2008/jan/31/politicalnews.uk1
2007 "The Porton Down settlement and the legacy of Ronald Maddison: Cold War human experiments 1940-1980" Alan Care. APIL Focus.
2007. "Medical Ethics and Human Experiments at Porton Down: Inforned consent in Britain's Biological and Chemical Warfare Experiments". [Professor] Ulf Schmidt, School of History, University of Kent. Chapter in "History and Theory of Human Experimentation - The Declaration of Helsinki and Modern Medical Ethics".
http://www.kent.ac.uk/history/research/Research-Projects/schmidtres.html
2008 (November] - 2009 [February] London, Wellcome Collection exhibition "War + Medicine" includes display of the 1953 Treasury Solicitor's letter.
http://www.wellcome.ac.uk/News/Media-office/Press-releases/2008/WTX050437.htm
2008/09 MoD Annual Report including Porton Down litigation. Also MoD reports 2007/8 and 2009/10.
http://www.mod.uk/DefenceInternet/AboutDefence/CorporatePublications/AnnualReports/MODAnnualReport0809/
2009 (March) Oxford University publish "Long-term effects of the Human Volunteer Programme at Porton Down" and their results of studies ongoing since October 2000. ".. A detailed paper on exposures at Porton Down was also published recently in Annals of Occupational Hygiene...Co-investigator Dr Lucy Carpenter ... ‘We have found a small increase in overall death rates in the Porton Down veterans when compared with other veterans but no increase in overall cancer rates. Many of the Porton Down veterans have concerns about the effect that taking part in experimental tests will have had on their health. We hope the results of this independent study may help to answer some of their questions...". For full press release see -
http://www.ox.ac.uk/media/news_stories/2009/090325.html
Post 2009 Professor Ulf Schmidt, University of Kent, History Department continues with the "Porton Down project" http://www.kent.ac.uk/history/research/Research-Projects/schmidtres.html
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