Government responsibility for the already known carcinogen, Asbestos

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Eugene Hodges
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1 Government responsibility for the already known carcinogen, Asbestos June 4, 2015 ICOH2015 Special Session Asbestos Problems in Asia Sugio FURUYA Japan Occupational Safety and Hearth Resource Center (JOSHRC) 1

2 On October 9th, 2014, the Japanese Supreme Court ruled the government illegally failed to act for protecting workers from asbestos exposure in the past. This is the first time in Japan. 2

3 Asbestos Textile Plants in SENNAN area, Osaka Mecca of asbestos industry in Japan for 100 years since There were more than 200 small asbestos textile plants in this area in the past. > Some transferred to Korea and other Asian countries. The last plant was closed in

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5 SENNAN Asbestos Litigation SENNAN s asbestos disaster had been almost ignored by history. In Japan we had a big asbestos scandal, so called the KUBOTA Shock, in the summer of 2005 triggered by a scoop revealing an another asbestos disaster among the workers of and the residents near a former asbestos cement plant of the KUBOTA Corporation in Amagasaki city, Hyogo Prefecture. The KUBOTA Shock made Japanese public aware of the reality of asbestos disaster and awaked the SENNNAN society from 100 years of slumber. Some plaintiffs succeeded to get compensation from former employers. But it was not enough and for the majority it was impossible to seek full compensation from former employers. Instead they brought the Japanese Government into court. The 1st group was filed on May 26th, 2006 and the 2nd group was on September 24th, The plaintiffs were occupational and environmental asbestos victims of asbestos textile industry in SENNAN and their families. 5

6 Article 1 (1) of 1947 State Redress Act When a public officer who exercises the public authority of the State or of a public entity has, in the course of his/her duties, unlawfully inflicted damage on another person intentionally or negligently, the State or public entity shall assume the responsibility to compensate therefor. a=03&kn[]=%e3%81%93&x=11&y=19&ky=&page=48 6

7 Failure to Exercise Authority on Local Exhaust Ventilation System The Minister of Labour should have exercised its authority deputed under 1947 Labour Standard Act to amend/enact ordinance and should have obliged employers to install a local exhaust ventilation system at their asbestos plant with penalty at latest on May 26, 1958 It is significantly not rational in the light of purport, purpose of 1947 Labour Standard Act or nature of the authority and judged as illegal in the application of the State Redress Act that the Minister had failed to exercise its authority until April 28, 1971 when the Ministry introduced 1971 Ordinance on Prevention of Hazards Due to Specified Chemical Substances to do so. 7

8 Standardized Compensation Amount The plaintiffs required a standardized payment for pain and suffering in addition to workers compensation benefits and/or social welfare benefits the plaintiffs have received and will receive in the future, and the Courts accepted this approach and set up the standardized amount per victim as the bellow; 1. Grade 2 asbestosis without complication 1.1 M JPY 2. Grade 2 asbestosis with complication 1.4 M JPY 3. Grade 3 asbestosis without complication 1.6 M JPY 4. Grade 3 asbestosis with complication 1.9 M JPY 5. Grade 4 asbestosis, lung cancer, mesothelioma or diffuse pleural thickening 2.3 M JPY 6. Death due to grade 2/3 asbestosis without complication 2.4 M JPY 7. Death due to other asbestosis with complication, lung cancer, mesothelioma or diffuse pleural thickening 2.6 M JPY 8

9 Liable Fraction of Gove responsibility As the government responsibility due to the failure to exercise regulatory authority under Article 1 (1) of 1947 State Redress Act is independent of employer s responsibility for its worker, the state has a responsibility to pay all compensation. However as the regulatory authority of the Ministry of Labour is, by its nature, exercised to impose a duty on employers and achieved when employers fulfill it, even if the Minister of Labour had exercised its regulatory authority the plaintiffs damages could not be totally avoided. So it is appropriate to consider that the state has a responsibility to pay up to 50% of the compensation amount. 9

10 Courts Decisions May 19, 2010 August 25, 2011 March 28, 2012 December 25, 2013 October 9, 2014 Decision District Court (1st group) High Court (1st group) District Court (2nd group) High Court (2nd group) Supreme Court Government responsibility Yes (1960-) Yes (71-) Liable Fraction Environmental Victims 100% No No No No No Yes (1960-) Yes (1958-) Yes (1958-) No 33.3% - Yes (72-95) 50% - No 50% - Yes means the decision admitted the government responsibility. 10

11 Results Total (both of 1st and 2nd groups) Disease Government responsibility Admitted Rejected Total Mesothelioma 2 2 Lung Cancer Asbestosis Diffuse Pleural Thickening Environmental (Asbestosis, DPT) Total Reasons of the rejections; 3 cases: out of liable period 2 cases: statute of limitation 2 cases: environmental 11

12 Minister apologized to Plaintiffs 12

13 Gov s settlement policy for similar case If a worker had engaged in a work exposed to asbestos at an asbestos plant, to which a local exhaust ventilation system should have been installed, during May 26, 1958 and April 28, 1971, He/she suffered from asbestos-related disease due to the above, and He/she or his/her bereaved family brought his/her case into court (in the latter case, bereaved family to do so within 20 years after his/her death), The government will pay compensation (up to 50% of total compensation amount). 13

14 Types of asbestos exposed work (asbestos products manufacturing work only) How many similar cases? A B C D Operation was started before Osaka or unknown among A among B Workplaces involving the left works Kishiwad a LSIO area among D Asbestos textile Asbestos cement Asbestos insulation Asbestos friction Other asbestos product Asbestos woven Multiple answers are allowed for the above. Total asbestos product Compensated ARDs 1,340 1,

15 Unveilling Ceremony SENNAN Asbestos Monument April 19,

16 Other Example: France Judgment by the Counseil d Etat (French Supreme Administrative Court) on March 3, 2004 Assemblée du contentieux sur le rapport de la 2ème sous-section, Séance du 20 février 2004 Lecture du 3 mars asbestos victims obtained compensation 2 of them had worked for asbestos plants and another 2 had worked in factories where asbestos products were used. The judgment held that the omission of the state to take preventive measures to reduce asbestos risks constituted a fault. Despite the hazardous nature of asbestos had been known since mid-1950s, sufficient follow-up by the labour inspectorate had not been carried out. The measures taken after 1977 had not shown to be adequate. No study had been undertaken before 1995 in order to determine the exact dangers of asbestos exposure. 16

17 Other Example: Montana, USA Judgment by the Supreme Court of the State of Montana, USA, on December 14, Plaintiffs are asbestos victims among former vermiculite mine (owned by the W.R. Grace and contaminated with asbestos), their families and residents near the mine. The plaintiffs originally sued the Grace which successfully avoided its responsibility by filing for protection under Chapter 11 of the federal bankruptcy laws. Then they sued the State. The judgment held that the State had a statutory duty to protect the safety and health of the plaintiffs by warning them of known dangers associated with their workplaces and remanded to the District Court. The State of Montana sought a settlement and the montana District Court in Helena approved $43 million settlement for 1,128 plaintiffs on September,

18 Other Example: ECHR/Malta Judgment by the Chamber of the European Court of Human Rights on July 24, The applicants are former employees of a ship repair yard run by the Malta Government and their families. They brought constitutional redress proceedings and sought compensation. However their applications were ultimately dismissed by the Constitutional Court in Malta. The judgment held that the Malta Government had failed to satisfy their positive obligation under the European Convention, to legislate or take other practical measures to ensure that the applicants were adequately protected and informed of asbestos risk to their health and lives. At least from the early 1970s, the Government has been aware or should be aware that the ship-yard workers could suffer from consequences resulting from the exposure to asbestos, yet they had taken no positive steps to counter that risk until

19 Conclusion There maybe more precedents in the world and will have more cases in the future. Also their decisions and implications may vary more and more. In Japan, as introduced, the first Supreme Court judgment was for a case of asbestos product manufacturing plant and a measure of local exhaust ventilation system. But there has been three district courts judgements holding the government responsibility for cases of asbestos-related diseases among construction workers and a measure of protective mask, etc. Any way all governments should review and reconsider their actions against asbestos from such viewpoint too. 19

Grassroots Asbestos Campaign in Asia. Sanjiv Pandita Asian Ban Asbestos Network Geneva, 2015 1

Grassroots Asbestos Campaign in Asia Sanjiv Pandita Asian Ban Asbestos Network Geneva, 2015 1 Asbestos- A global Concern Workers and communities in west continue to suffer due to past exposure. In developing