Asbestos and Other Airborne Liability - September 2005

Thursday, September 1, 2005

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On 26 April 1986 workers at the Chernobyl Nuclear Power Plant, Ukraine, USSR, shut down the safety and cooling systems to test an emergency turbine shutdown scenario. This inadvertently caused the reactor of the plant to overheat, resulting in an explosion which tore the roof off the plant's reactor 4. This sent a huge radioactive cloud into the atmosphere, which drifted over much of Europe, dumping large amounts of radioactive nuclides into the Ukraine and most European countries.

It has been described as the worst nuclear power accident in history.

31 people died from radiation poisoning, with an unknown number of deaths that may be caused by long-term radiation sickness.

180,000 people were evacuated from towns close to the reactor site.

7 million people were living in the affected area. 1.5 million received high doses of radiation, including 160,000 children up to the age of 7.

There has been a significant increase in the incidence of childhood thyroid diseases including childhood cancer. It has reached epidemic proportions.

30% of children between 0 and 4 at the time of the nuclear disaster will contract cancer of the thyroid, leukaemia and other cancer sicknesses, during their lifetime.

At least 3 million children required physical treatment due to the Chernobyl accident. It will not be until 2016, at the earliest, that the full number of those likely to develop serious medical conditions will be known.

National authorities estimate that the overall economic cost of the accident will reach US$260 billion over 30 years from 1986 to 2016.

Radiation poisoning causes severe damage to the immune system and affects the body's ability to fight cancer cells.

The level of radiation released was nearly 200 times that of the combined releases from the atomic bombs at Hiroshima and Nagasaki in 1945.

A high rate of babies have been born with congenital malformations.

There has been a growth in cases of nervous system diseases, mental disorders, congenital diseases, rare forms of genetic abnormalities among babies and heart disease.

The air is now safe, outside the Exclusion Zone, but 21% of the soil in Belaruse remains dangerously contaminated. Ploughing of farmland soil, summer forest fires and surface soil lifted up by the wind cause movement of radioactive dust in the air. The food and water supplies are continuously contaminated by air and rainfall. Lakes and ponds are contaminated as well as the fish and agricultural areas.

The Chernobyl accident did not produce any type of legal challenge aimed at the Soviet Union for the disaster.

The Federation Council of Russia ratified the Vienna Convention on civil liability for nuclear damage.

Russia, which is the legal successor of the Soviet Union, maintains that it should not have to compensate for the damage inflicted by the explosion at the Chernobyl Nuclear Power Plant, because the disaster occurred before the ratification and it was on the territory of another State.

The Convention, signed by Russia in Vienna in May 1996, is one of the basic international legal documents regulating the liability regime and the procedure for paying compensation for harm caused by incidents at civilian nuclear facilities. 26 countries have signed the Convention.

The Convention provides for the payment of compensation for nuclear damage by a court decision.

If there is a lack of insurance assets to pay for nuclear liability claims, the payment shall be guaranteed by the State, with the maximum sum not exceeding $60 million. Therefore the State can limit its liability.

More than 200 cancer patients in France have commenced legal actions against the State, because in the days following the accident, Paris did not publish measures or warnings concerning contaminated milk and other foods contaminated through the soil. Also the Independent Commission for Research & Information found that contamination levels were higher than Government estimates.

An innovative case was brought in Hungary by the Environmental Management & Law Association on behalf of the widow of a truck driver. The victim's employer, a Hungarian company, was found liable to pay damages because the employee was sent to the Chernobyl fallout area only two months after the explosion, but he had not been provided with any protective gear or any warning as to the potential dangers. The Budapest City Court found in 1998 that there was a causal connection between the truck driver's job and his death from radiation escaping from the Chernobyl Nuclear Reactor.

The catastrophe was caused by human error, but the consequences were horribly compounded by official denial and secrecy. The inadequacy of the attempts to properly address the problems through some form of compensation was a major issue. It had an unforeseen influence on national consciousness and was one of the root causes of the moral collapse of the Soviet Union.


Legionnaire's disease is spread by legionella bacteria and can be fatal.

The legionella bacteria can contaminate and grow in air conditioning units and people working in or living near buildings can contract legionnaire's disease (sick building syndrome).

Outbreaks of the disease have been linked to shopping centres and office buildings.

Legionnaire's Disease is a type of pneumonia (an acute infection of the lungs). It causes flu like symptoms such as headaches, fever, chills, muscle aches and a dry cough causing shortness of breath. It sometimes causes diarrhoea, mental confusion and kidney failure.

Legionella bacteria are widespread in the environment and are commonly found in natural water courses and soils. The bacteria can contaminate and grow in other water systems, e.g. air conditioning cooling towers, evaporative condensors and hot and cold water services. The bacteria can also be found in potting mix, humidifiers, spa and whirlpool baths, showers and ornamental fountains.

People can catch the disease by breathing in very fine droplets (aerosols) of contaminated water that contain the bacteria. Workers in the building and people living in the area are at risk.

The disease cannot be passed from one person to another, nor caught by drinking legionella contaminated water.

People most at risk are:

  • those over 50
  • smokers
  • heavy drinkers
  • people suffering from chronic respiratory or kidney disease
  • people with impaired immune systems
  • diabetics
  • men more than women.

Building owners have building and health regulations imposed by the State Government. They are required to ensure that all cooling tower systems are registered and that a risk management plan is in place. This obligation may be satisfied through commercial lease arrangements with tenants/business owners/operators. A risk management plan requires the management of stagnant water, nutrient growth, poor water quality, deficiencies in the cooling tower and location of and public access to a cooling tower system.

Also there are regulations setting out the responsibilities of the people who own, manage and control cooling tower systems.

Employers, who are tenants in buildings, have occupational health and safety obligations to provide a safe place of work to employees and others who enter their premises. They can be liable for a criminal prosecution for breaching the statutory obligations, which can result in a fine or imprisonment.

Employers should have the following:

  • Proof that all cooling towers are registered.
  • A risk management plan.
  • A list of all cooling towers on site.
  • Records of the total bacterial counts from all cooling towers every month.
  • Regular inspection and maintenance records.
  • Reports of full cleaning done at least yearly.

On 4 May 2000 a class action was commenced in the Supreme Court of Victoria on behalf of 144 persons who were injured as a result of exposure to the legionella bacteria while attending the Melbourne Aquarium between 8 and 27 April 2000. 4 victims died directly from the disease. Another twelve died from conditions allegedly related to the disease.

Proceedings were brought against the Melbourne Aquarium, the construction company, architect, mechanical engineers, an air conditioning company and the water treatment company, in relation to the maintenance, cleaning, testing and/or repair of the cooling towers and/or the pumps serving the cooling towers at the Aquarium. The air conditioning system was changed after the incident.

The trial was listed for hearing on 2 February 2004 but settled. The settlement is subject to the following:

  • Damages being assessed for each plaintiff.
  • Causation being satisfied for each plaintiff.
  • Each plaintiff being a group member of the class action.
  • Each plaintiff proving they had the disease.
  • The plaintiffs proving they were within 150 metres of the external walls of the Aquarium between 8 and 27 April 2000.

The defendants have agreed that the disease was from the cooling towers on the Aquarium premises. Also concessions were made by the Defendants about breach of duty of care.


Mobile phone towers emit radio frequency radiation which is associated with a range of health problems.

By giving approval for the construction of a mobile phone tower, property owners or Councils may be risking litigation in the event that radio frequency radiation is later proven to cause health problems.

Despite Government and industry claiming that the radiation from mobile phone towers is not a health risk, there is evidence that it is.

Radio frequency radiation has been associated with a range of health problems including:

  • Brain tumours.
  • Lymphomas.
  • Memory/learning problems.
  • Memory/concentration problems.
  • Changes to brain patterns.
  • Genetic/cellular effects.

Studies have found that adverse effects occur at very low levels such as emitted by phone towers including:

  • Changes to cell proliferation.
  • Chemical mutation in the blood.
  • Breaches of the blood brain barrier, which can lead to diseases such as Alzheimer's.
  • Changes of brain patterns.

There is evidence to suggest that the effects of radio frequency radiation are cumulative.

The Government has received billions of dollars from carrier licences and sale of spectrum and therefore has strong interests in the proliferation of this technology.

In Australia, there have been no studies on the effects of radiation from mobile phone towers and no effort to monitor the health of people living near them.

There is inadequate Federal legislation about the siting of mobile phone towers. Therefore many Local Councils have introduced policies to provide some protection to the public to avoid sensitive areas.

In 1997 the NSW Minister for Education stated in Parliament that the Department of Education objects to the installation of mobile phone towers within a radius of 500 metres from schools. The Minister said

"This objection is based on a policy of prudent avoidance".

There is no direct proof yet that low intensity radiation can have an adverse biological effect. But proper tests have to be conducted over many years.

In North Sydney, a triangle of TV masts, shortwave radio masts and radar installations, showed a significant statistical increase in cancer cases.

Mobile phones operate from a Thermal Heating Standpoint, well within the Guidelines set out by the International Commission on Non-Ionising Radiation Protection and the National Protection Board in the United Kingdom.

The Guidelines are based on Thermal Heating Factors.

Vodaphone, the British mobile phone suppliers, have been sued by US brain tumour victims, claiming compensatory damages and punitive damages. The plaintiffs allege that the brain tumours were caused by the use of mobile phones and the phone companies knew about the risk but failed to give any warning.

The people who may be liable in legal actions are:

  • Mobile phone network operators who own and erect the masts for the antennae and dishes.
  • The landowner who leases or sells the land to enable the masts and base stations to be erected by the network operator in exchange for an annual rent or sometimes a sale price.
  • The Authority that gives approval for the landowner to have a mast erected.
  • Insurers of all such people and bodies.


On 11 September, we had the four year anniversary of the terrorist attack on the WTC and other targets.

There were 20,000 people in the buildings at the time. The buildings can hold up to 50,000 people. Two-thirds managed to get out before the collapse.

There was a lack of safety in the way in which the WTC was built because mainly steel was used which made it vulnerable to fires. Concrete, which dominates the Empire State Building, withstands fire far better than steel does. In 1945 a B52 bomber, which became lost in heavy fog, crashed into the 79 th floor of the Empire State Building. The structure of the building easily survived the impact and the resultant fire.

The original design and construction of the WTC included fireproofing of the steel using spray-on asbestos. Asbestos adds resilience and insulation against fire to the structure. The North Tower was constructed between 1968 and 1972. When the building had reached the 64 th floor in 1971, the Environmental Protection Agency (EPA) banned the use of asbestos in spray fireproofing as a result of a report released by Dr Irving Selikoff declaring that high concentrations of asbestos cause cancer. Herbert Levine, the inventor of the asbestos spray being used in the North Tower, predicted "if a fire breaks out above the 64 th floor (of the North Tower), that building will fall down". The asbestos insulation was designed to protect the building from collapse for four hours, which would have saved many hundreds or thousands of trapped occupants.

Even though more than four years have passed since the collapse of the WTC, the dust has not yet settled.

Thousands who worked and lived in the disaster area have reported health problems.

The potential long term effects of the environmental contaminants from Ground Zero are unknown. It has been estimated that as many as 400,000 people will have potential lingering latent health effects. These people were exposed to a combination of airborne toxins including pulverised concrete, fibrous glass, asbestos and other potentially carcinogenic particulate matter. Diseases resulting from the attack may not fully present themselves for years to come.

There is evidence that contamination may still be lingering in the City's environment.

Those affected are fire-fighters, other rescuers and workers at the site, people living in the area or working in the vicinity.

Almost all of the fire-fighters who responded to the WTC attack complained of respiratory-related problems and hundreds were eventually forced to retire from the Department.

A far larger proportion of the population have suffered mental health problems, the most common being Post Traumatic Stress Disorder.

The attack may eventually result in more workers compensation and disability-related liability than any other single event in history. The initial insurance estimate of $50 billion in losses could potentially double or even triple, as a result of future claims. The Government and the insurance industry are actively working to try and limit the scope of the class of victims entitled to benefits.

In the initial emergency response, accusations have been made that the Environmental Protection Agency and local authorities showed little concern for respiratory safety. No Government agency stepped forward to implement a coordinated safety program.

Thousands labouring at Ground Zero received neither respiratory protective masks nor warnings about airborne hazards.

Workers and volunteers suffered from severe coughing, gastrointestinal reflux and sinus irritation, that became known as the "World Trade Centre cough". Scientists say the main source of the symptoms was the catastrophic plume of smoke that covered lower Manhattan and neighbouring Brooklyn with hazardous pollution. The force of the collapse decimated 1.2 million tons of concrete, office equipment and other materials, including hundreds of tons of asbestos.

Many contaminants scattered in the air could cause short term and chronic damage or even cancer, e.g. glass particles from 22,000 sheets of glass, lead and toxic chemicals.

74% of the workers and volunteers reported upper respiratory problems.

Buildings and vehicles in the area were covered in dust, which were found to contain shards of glass and asbestos.

The New York Workers Compensation Board reports that claims were made by 8,148 for injury and exposure claims related to 9/11.

Many workers have claimed on private health funds instead of workers compensation, which has resulted in additional expenses being borne by individual workers, their families, private medical insurance and taxpayers.

By 9 November 2001, 11,383 commercial claims and 7,476 personal claims related to the WTC attack had been logged by the New York State Insurance Department, at a notified value of US$8.4 billion. This represents a small sample of the eventual claims total. Some estimates expect that the long tail of claims could run on for 10-20 years.

Losses are now expected across more than 22 different categories of insurance business. These range from property loss to the buildings damaged in the attack, to the compensation payments due under workers compensation and other accidental death and dismemberment policies.

A more realistic estimate is that losses will eventually reach just over US$50 billion.

The WTC loss demonstrates that a previously minor coverage has become a major loss potential. It constitutes virtually a new class of risk.

Many insurers are now reviewing their business to review their terms and conditions, rating and covers, urban accumulation management, reinsurance purchasing and other portfolio management processes.

The insurance industry has focused its catastrophic management activities on natural hazards. The WTC attack was a man made catastrophe, which suggests there is a need for the industry to broaden its view beyond natural hazards. Man made disasters like the Exxon Valdez, Bhopal and Chernobyl could have cost the industry billions under different circumstances.

It is important for insurers and reinsurers to better understand the possibility of property, casualty and liability losses that may result from a single event.


Non-smokers have found tobacco smoke annoying for centuries.

In 1604, King James I of England described smoking as a "custom loathsome to the eye, hateful to the nose, harmful to the brain, damaging to the lungs, and in the black stinking fume thereof, nearest resembling the horrible Stigian smoke of the pit that is bottomless".

Some aspects of the King's colourful opinion have been supported by scientific evidence. Publications in the 1980s and 1990s have confirmed the link between ETS exposure and ill health.

Second hand smoke has been estimated to be responsible for 3,000 lung cancer deaths among US non-smokers each year, and up to 300,000 cases of lower respiratory tract infections in children up to 18 months of age.

ETS is a combination of side stream smoke and main stream smoke. Side stream smoke is emitted into the atmosphere from burning cigarettes, pipes and cigars. Main stream smoke is inhaled by the smoker then exhaled. ETS (second hand tobacco smoke) is inhaled involuntarily by non-smokers. This is called passive smoking.

The earliest studies concerned passive smoking and children and the effects on the foetus of smoking in pregnancy. The evidence showed that passive smoking causes respiratory illness and lung cancer.

Cigarette smoke contains over 60 carcinogens.

The accumulation of evidence on the harmful effects of ETS has influenced the community to be less tolerant and to expect smoking restrictions, such as the one introduced in pubs and clubs in NSW.

In the late 1980s, smoking bans were introduced to the workplace. Surveys showed strong public support for this move.

On 2 February 1991 Justice Morling in the Federal Court of Australia handed down a landmark decision in Australian Federation of Consumer Organisations v Tobacco Institute of Australia in which the judge held that advertisements by the tobacco industry disputing the harmful effects of passive smoking were misleading and deceptive conduct in contravention of Section 52 of the Trade Practices Act 1974 (Cth).

The tobacco industry has been concerned for some time about a reduction in cigarette consumption because of the passive smoking issue.

As a result of documents revealed in US litigation, it is now known that over the last 25 years, the tobacco industry has engaged in a highly developed and sophisticated strategy designed to protect its commercial interests from attacks in respect of direct smoking and the emerging passive smoking issue.

Legal Cases on Passive Smoking :

Carroll v Melbourne Metropolitan Transit Authority (1988): Sean Carroll was a bus driver employed by the Melbourne Transit Authority. He was exposed for many years to ETS from passengers and co-workers. He developed lung cancer.

Carroll had to prove, on the balance of probabilities, that the disease was caused by exposure to ETS at the workplace and that it was reasonably foreseeable. Also that the employer had breached its duty of care (i.e. being negligent) in exposing him to a risk of injury without warning or providing protection.

The State Insurance Office settled for $65,000, clearly believing that Carroll was likely to succeed.

Scholem v NSW Department of Health (1991): this was a world first jury verdict, in the District Court at Sydney, on an employer's negligence in regard to passive smoking.

Liesel Scholem counselled mental health patients. She was exposed to passive smoke, which exacerbated her asthma and caused emphysema (chronic obstructive lung disease). A jury found in her favour, both on common law negligence and breach of statutory duty. She was awarded $85,000.

Sharp v Port Kembla RSL Club (2001): Mrs Sharp was a bar attendant exposed to ETS. She contracted laryngeal cancer. She was awarded $446,048. This was the first Supreme Court common law damages action about passive smoking.

In the US:

  • Health care cost recovery cases have been brought by Governmental and non-Governmental instrumentalities seeking reimbursement for health care costs allegedly caused by cigarette smoking.


  • Asbestos manufacturers have been seeking contribution or reimbursement for amounts spent in connection with the payment of asbestos claims that were allegedly caused in whole or in part by cigarette smoking (see Mowbray ).



  • 2,663 cases have been brought by flight attendants seeking damages for injuries allegedly caused by exposure to ETS.

The tobacco industry has vast resources. It hires expensive lawyers who raise every conceivable issue in litigation. This adds to the expense and length of trials and is a very good deterrent for many litigants. For the tobacco industry there is a lot at stake.

The situation is different in the US because of the availability of large sums for punitive damages, contingency fees for lawyers and an absence of the loser pays the other party's costs, makes litigation more attractive. Also the US Government has brought its own action against the tobacco industry, which has made it a more equal contest.

In Australia, the first class action against cigarette companies was brought by Myriam Cauvin against Philip Morris & Ors. On 24 September 2004 the NSW Supreme Court rejected a class action by Cauvin on behalf of others. The Court held that she was entitled however to pursue the claim on her own. Health leaders have criticised the Federal Government for not backing the case in the public interest, in contrast to the strong action by the US Government against tobacco companies.


In Australia more chrysotile (white) than amphibole (blue and brown) asbestos was mined until 1939. Mining commenced in Wittenoom, WA, in 1937. Crocidolite (blue) dominated production until its closure in 1966. In NSW, large tonnages of chrysotile were produced in the Barraba at Baryugil Mines until 1983. The main sources of asbestos were chrysotile from Canada and crocidolite and amosite from South Africa. Consumption peaked in about 1975 at 70,000 tonnes/year.

Australia also imported many asbestos-based products, e.g. asbestos cement articles, cord, millboard, asbestos friction materials and gaskets.

After World War II to 1954, 70,000 asbestos cement houses were built in NSW alone (52% of all houses built). Until the 1960s, 25% of all new houses in Australia were clad with asbestos cement.

Statistics for mesothelioma victims indicate the following proportions for various classifications:

  • Engineers - 25%
  • Asbestos factory - 23%
  • Builders - 17%
  • Dockers - 12%
  • Laggers - 5%
  • Ex-Wittenoom - 5%
  • Friction productions - 4%
  • Power stations - 2%
  • Miscellaneous - 5%

Asbestos-related diseases include:

  • Mesothelioma
  • Asbestosis
  • Lung cancer
  • Pleural plaques
  • Pleural effusion
  • Benign pleural thickening.

Asbestos comes in the form of tiny fibres rather than round dust particles. Asbestos was used to protect against heat, electricity and chemical attack. It was relatively cheap and light and also very resilient. These characteristics made it a very popular product.

When the tiny fibres of asbestos are released into the atmosphere, the particles can be inhaled into the lungs. All types of asbestos are carcinogenic when airborne. Asbestos has been released into the atmosphere by the following activities:

  • Spraying asbestos onto steel beams as a fire retardant.
  • Applying or removing asbestos lagging on hot water and steam pipes.
  • Cutting asbestos fibro sheets with power tools.

Malignant mesothelioma is a malignant tumour which arises from the pleural surface of the lungs. The average latency period from first exposure to asbestos is 33 years, but is commonly between 20-50 years. The average prognosis from the onset of the disease is 12 months. There is no known effective treatment.

Even low doses of exposure to asbestos can cause mesothelioma. There was a professor who was exposed for 5-10 minutes only in 1961 when watching asbestos insulation being sprayed onto steel beams at a University. Experts accepted that the disease had been caused by this brief exposure.

In the UK, between 2002 and 2050, it is estimated that there will be 65,000 deaths from mesothelioma. Between 2000-2001, there was a 13% increase in the number of mesothelioma deaths.

In the US, in excess of $50 billion has been paid in settlements and judgments by manufacturers, asbestos producers and their insurers. More than 60 companies have filed for bankruptcy as a result of asbestos-related claims.

There are currently in excess of 400,000 asbestos-related claims pending before US and State courts. Experts in the US predict that asbestos claims will continue for at least another 25-50 years.

On the world scene, major insurers in the past few years have made significant increases in the reserves held for asbestos-related claims. In the US property/casualty insurance industry, it has been estimated that commercial insurers remain significantly under-funded by almost 40%.

The US insurance industry was anxious for the Government to intervene and pass a Bill in the US Congress to set up a Federal Trust Fund with $114 billion to help victims. The insurance industry supported the Bill to bring some certainty to the situation, enabling insurers and reinsurers to accurately project their ultimate liability and cash flow. The Bill however failed to get through Congress in 2004.

In Australia, asbestos claims have been forecast to peak in 10-20 years time. The national compensation bill for asbestos-related claims is presently forecast to reach $6 billion.

Actuaries, employers, manufacturers and insurers all have a problem in trying to accurately forecast the likely cost of future claims. The blow-out has been blamed on an increasing awareness among victims of the ability to make claims; an ability to determine when actual exposures occurred; and increasing awards of damages for pain and suffering and domestic assistance. It could also be impacted by the number and type of claims, legal developments, medical developments, and any further legislative intervention.

David Cooper
21 September 2005

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