Turner & Newall (“T & N”) is a name that has become synonymous with asbestos related disease claims. The company was founded in 1871 in Rochdale, Greater Manchester, and was one of the first to industrialise asbestos. It weaved asbestos cloth with power-driven machinery several years before the turn of the 19th century and opened an asbestos cement plant at Trafford Park shortly before World War I, before growing rapidly throughout the 1930s and 1940s.
The misery inflicted on its workforce, those who used their products and even those who lived in the areas surrounding their factories cannot be understated. What makes this company’s legacy so much worse is the years it denied and covered up any links between asbestos and the respiratory diseases that had been reported amongst its workers and the communities in which it operated. Even as early as 1937, a director of T & N wrote about his wish to absolve the company of any responsibility and
“avoid tiresome regulations and the introduction of dangerous occupational talk.”
It wasn’t until the dangers of asbestos exposure came into the public domain that T & N’s downfall was set in motion. It was crippled by the vast number of asbestos-related disease claims brought against it and eventually went into administration in October 2001. A Trust was set up to enable those who were exposed to asbestos dust and went on to contract an asbestos-related disease through the employment or activities of T & N (and the various companies that made up the group) to be compensated.
The T & N UK Asbestos Trust: making a claim
The “T & N UK Asbestos Trust” and the “EL Trust” are trusts administered by the T & N Asbestos Trustee Company Limited. Applications for compensations from these trusts are made by submitting a Proof of Claim form with supporting documentation. The Claimant need not instruct a solicitor to make the application on their behalf but is able to recover a maximum of £6,500 towards legal costs on top of any compensation award, if they choose to do so.
Applicants must indicate on the claim form whether they are claiming as a former employee of one of the relevant T & N companies or as a non-employee (e.g. through using a T & N product, living close to a T & N factory or washing the clothing of a T & N employee). They must also indicate the dates of exposure and, if known, the type of asbestos that they were exposed to and whether such exposure was heavy, moderate or light. The applicant must also provide medical evidence to confirm which asbestos-related disease they have been diagnosed with, namely pleural plaques, diffuse pleural thickening, asbestosis, lung cancer and/or mesothelioma and when they were given the diagnosis/es. Furthermore, they must confirm whether they have ever smoked and, if so, the type and frequency of smoking.
Claim options – expedited or individual review?
Of importance is how the Claimant elects for their application to be reviewed. Claimants under the Trust can ask that it proceeds by way of Expedited Review or by way of Individual Review. The former process is, as the name would suggest, quicker in that it allows the Claimant to recover a set amount according to the relevant disease, provided the medical and exposure criteria have been met.
On the other hand, the Claimant may choose to proceed by way of the Individual Review process, which entails the Trustees valuing the claim in a way akin to that adopted in valuing asbestos disease claims brought through the civil courts. It is necessary to outline losses of financial support and services suffered by any dependants, as well as any loss of earnings, costs of nursing care, probate costs and funeral expenses. The result is that the Claimant may be able to recover a higher level of award compared to the Expedited Review process, although there is a maximum award level, which differs according to the type of asbestos-related disease for which the Claimant is claiming. This route requires a lot of information and fact-gathering and so, understandably, is a slower process.
The option of whether to go down the Expedited Review process or the Individual Review process can sometimes be a difficult one. I recently acted for the family of a man who had died from asbestos-related lung cancer having worked for one of the T & N companies known as Ferrodo Limited. He worked for the company as a factory operative between 1959 and 1996. He left behind a widow who had complex care needs and a daughter who had given up work to be her mum’s full-time carer. Whilst the likelihood was that the claim would be worth more through the Individual Review process given the loss of services dependency claim (to reflect that the Deceased would have been the widow’s full-time carer but for his premature death), the family eventually opted for the Expedited Review process to access the compensation more speedily. The harsh economic reality of funding the widow’s ongoing care outweighed the prospect of a potentially higher pay out under the Trust scheme in this case.
It is also worth mentioning that the family in this case were aware of the risk that if they opted for the Individual Review route the Trustees may well value the claim at a level below that recoverable under the Expedited Review process, in which case they would be stuck with the Trustees’ valuation with no means of recourse.
The Trust’s shortfalls
The case also highlighted the shortfalls of the T & N Trust for Claimants claiming for an asbestos-related disease other than mesothelioma. Here, the claim was for fatal lung cancer and whilst the Claimant was able to recover under each of the individual trusts comprising the T & N Trust, it was only possible to do so under the EL Trust for exposure suffered between 1 October 1969 and 30 April 1995 (despite the Deceased having been employed between 1959 and 1996). This reflected the fact that T & N and its subsidiaries only had Employers’ Liability insurance for employees working in the UK during this period. Asbestos exposure suffered outside this period could therefore not be met with any compensation award and the value of the claim was reduced by a hefty 30% accordingly.
There was an additional deduction for what the T & N Trust refers to as the “Payment Percentage” for each of the Trust funds under which the Claimant could recover. This Payment Percentage relates to the amount of pence in the pound that the Trust pays out (i.e. 66p/£ under the EL Trust and 6p/£ under the Hercules Trust). This payment percentage applies to all claims regardless of the disease. Let’s not forget an additional deduction – in this case of 10% - to reflect the Deceased’s smoking history and therefore his “contributory negligence” to his contraction of lung cancer. What started out as a compensation payment of £152,000 for lung cancer under the Trust fund ended up as an award at just under £99,000.
Whilst lung cancer claims under the Trust are assessed in a way akin to how they are assessed in civil claims in terms of deductions where there is a smoking history and where no insurance can be traced for part of the period when asbestos exposure occurred, the Claimant faces an additional disadvantage under the Trust as far as the “Payment Percentage” is concerned. The combined effect of all these deductions is considerable and this is, of course, on a background of the T & N Pension Fund deficit caused by the company’s dissolution, which has meant that thousands of T & N employees have not been paid the full amount of their pension funds.
An imperfect solution
Nevertheless, the T & N Trust does mean that there is at least some means of recompense for those who have suffered because of T & N’s negligence. Claimants with an asbestos-related disease who wish to bring a civil claim have no such means where the company that allowed them to suffer asbestos exposure has since dissolved and no Employers’ Liability insurance can be traced for the period of employment in question (although mesothelioma sufferers may, of course, be eligible to claim under the government’s Diffuse Mesothelioma Payment Scheme in this situation).
No one would possibly argue that the T & N Trust is a perfect solution to the deadly legacy that the company has left behind and, indeed, there are likely to be further injustices as more Trust Claimants come forward in the years ahead.