Never say you don’t knowConsider it your room to grow..

Lydia CharlierEuropean Asbestos Forum

27 may 2015 beeradvocaten

The Dutch solution for mesothelioma victims

• Minister Asscher*:

– Nobody should undergo diseases, disablement or even death, caused by his work!

– We need to look closely and learn from asbestos cases!

– We need to listen to doctors, and victims!

* Minister of Social Affairs

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Most recent annual report on Dutch mesothelioma victims

• Short overview of the Dutch asbestos context• Piet’s case• The Dutch approach • The Australian (NSW) way • Again: Piet’s case• Recommendations: Room to grow

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• Import asbestos in Holland: a total of 1,4 billion kg’s*• Mainly in buildings, shipyards• Occupational health issue and public health issue:

domestic/environmental exposure• Import peak: 1975 • expected in 1998: 20.000 victims• 1978: first legislation, total ban: 1993• 1988: first litigation, 1998: Supreme Court• 1998: Convenant Asbest Slachtoffers**• 2000: Instituut Asbest Slachtoffers (IAS) * 1,4 miljoen ton: Asbest tot in de vezels van de samenleving, onderzoek in opdracht van Greenpeace Nederland,

contrast Advies, Amersfoort: www.xs4all.nl/~contrast/publicaties/asbesteindrapport.pdf.** Agreement between Government/employers/insurance companies/unions

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The Dutch asbestos context

• Born in Holland on 6 february 1938• 1957: asbestos worker at Hertel in Holland –

insulation industry • 1958 Australia – New South Wales • 1959: asbestos worker at James Hardie & Coy

Pty Ltd (NSW)• 1959 -1961: asbestos worker at Bell’s Asbestos

& Engineering Ltd (NSW) • 1963-1964: asbestos worker at Hertel

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Piet’s case

• Diagnosis november 2014: mesothelioma• Passed away:18 march 2015

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50 years later

• Claim in Holland?• Claim in NSW?

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Piet made some enquiries

IAS*: • Founded in 2000• Government/employers/insurance

companies/unions

• free of charge for victims• Highly qualified organisation• Instituut Asbest Slachtoffers• Institute form Asbestos Victims

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The Dutch approach

• Check of diagnosis – NMP*• Investigation of facts: employment contracts,

exposure, where, when, how, witness statements, liable parties

• Opinion on liability and Statute of Limitations• Report• “Mediation”• to be concluded within 6 months

• Nederlands Mesotheliomen Panel: Dutch Mesothelioma Panel beeradvocaten

What to expect

• advance payment on general damages (non pecuniary damages):– Pain and suffering– Loss of amenities– Loss of enjoyment of life– Loss of life expectancy

• € 19.417,00 - fixed: payable by SVB* within 2-3 months

• All mesothelioma victims (diagnosed, whether liable party or not) are eligible to be awarded this compensation

* Sociale Verzekeringsbank: Dutch Social Security beeradvocaten

Meanwhile: Regeling TAS

• Liability accepted by employer (47%): – General damages: fixed: € 56.464,00– Pecuniary damages: fixed: € 3.142,00*– Bereavement: fixed: € 3.142,00*– Total amount of € 62.748,00– No burden of proof– Additional damages: burden of proof

• Liability denied or no liable party (53%): TAS: € 19.417,00

• Case closed beeradvocaten

Compensation

• Insufficient individual proof of exposure (too long ago, no witnesses!)

• No specific database on exposure facts*• Time limits! 30 years+• Mediation by IAS: only non committed,

voluntary participation or payment on the employers side; no enforceable ruling

*only general database: “asbestkaart”, www.asbestkaart.nl

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Obstructions to obtain “full” compensation

• Very low compensation for general damages, even in Dutch terms… (25% of what may be expected for similar injury, different cause)

• Even more so in international terms!

• No compensation for individual loss of life expectancy: fixed compensation for all ages..

• Case law has adjusted tot Agreement: in legal procedures similar compensation

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Character of compensation

Results of IAS in the past 15 years

• Total requests: 6934: handled until 2014: 6541 cases • 20,3% of all handled requests (1333 cases) denied

• 80,7% (5601 cases) received compensation

• 47% (2213 cases) get fully compensated with fixed general damages (€ 56,464.00) and other damages ( fixed 6,284.00, total of € 62.748,00* *no burden of proof

• 53% (2478 cases) only received TAS: € 19.417,00

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The Australian way in NSW• 1989: Dust Diseases Tribunal (DDT)*• Active judge, available on all days and hours• The world is his territory• DDT data base of asbestos related facts, both medical

and historical, to be used in every case• Flexible burden of proof• Fast execution• Enforceable ruling on causation and liability within

weeks, even days • NO limitation period* * Dust Diseases Tribunal Act 1989 (NSW), s. 6; ** Section 12 A, Dust Tribunal Act 1998

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No difference between NSW and The Netherlands •Workers•Domestic exposure victims•Environmental exposure victims•Peak: 2020 – 2021•Number of diagnosed victims 2013: 575•Number of diagnosed victims 2013 NSW: 158•AMR (Australian Mesothelioma Registry):

– 61% occupational exposure– 33,1% other– 6% indefinite

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Claimants

No difference between NSW and the Netherlands

•employer, or employer’s workers compensation insurer•The occupier of the site where victim worked•The manufacturers of the asbestos products•The State Government or the Federal Government for exposure such as with government bodies •The spouse’s employer in the case of women exposed when washing their husband’s overalls•The parents employer in the case of children with bystander exposure•The mining companies who mined raw asbestos•Ship building companies

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liable parties

• General damages– Pain and suffering– Loss of enjoyment of life– Loss of life expectancy

• Pecuniary damages– Full compensation– Legal costs: compensation by liable party

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Damages

• General damages (smartengeld) :

Range: $ 250,000 - $500,000 (€ 175.138 - € 350.270)Loss of life expectancy: based on individual: $ 1000,00 per “lost”year

• Pecuniary damages: full compensation

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Compensation

• No compensation? NO! • “Safety net” for workers: • Worked in NSW but no recollection or proof:

– benefits from the NSW Dust Diseases Board

• No “safety net” for those who don’t recall any exposure outside occupational context at all. However: this is very rarely found!

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No liable party?

• In Holland:

– most likely time barred (1964 – early exposure) – Maximum compensation: € 19.417,00– To be refunded in case of compensation from

abroad or otherwise

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Facts: Piet’s case in Holland

• In NSW

– Request was filed at DDT on 9 january 2015– Compensation in line with NSW standards received

within 7 weeks

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Facts: Piet’s case in NSW

•The Dutch way was a good start•However: in 2015 the NSW differences in procedures and compensation should prompt us to think again•In view of globalization it is time form the Dutch system to mature•NSW sets the good example•There is plenty of room to grow

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In conclusion:

Recommendations to Minister Asscher:• Keep the Regeling TAS for those who cannot find a liable

person at all, in occupational, domestic of environmental exposure cases; but upgrade compensation

• Instead of mediation by IAS create an expert Dust Diseases Tribunal; create enforceable rulings to ensure compensation

• Let go of non committed mediation• Let go of unjust and unreasonable limitation period of 30 yrs • Create a database to be used in future cases • Sustain flexible proof deriving from this database• Create an individual compensation of life expectancy• Let go of current fixed compensation of general damages in

case of liable employer, upgrade compensation in line with international standards

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Recommendations: plenty of room to grow

Look closely, but do not only look

• Listen closely, but do not only listen

• Hear,

What victims have to say.

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Minister Asscher: