As a sixteen-year-old girl, Ms. Hesse worked for some time in the administration of a factory of insulating material in the 1950s. She was not allowed to come to the department where she processed asbestos. Yet she inhaled asbestos fibers, because the production workers walked around the building with their clothing. Sixty years later, Mrs Hesse gets mesothelioma.
As a sixteen-year-old girl, Ms. Hesse worked for some time in the administration of a factory of insulating material in the 1950s. She was not allowed to come to the department where she processed asbestos. Yet she inhaled asbestos fibers, because the production workers walked around the building with their clothing. Sixty years later, Mrs Hesse gets mesothelioma.
The story of Mrs Hesse has become more widely known. In the framework of the European presidency, this year a short film of her was made and shown at a congress on occupational cancer in Amsterdam. Ms Hesse died shortly after the recordings.
Everyone knows that it takes a long time before harmful effects of asbestos are noticeable. Yet it remains surprising that events of 60 years ago have such an impact in the present.
The story of Mrs Hesse is not unique. The IAS monitor is just updated and available on the website ias.nl . It can be read that the latency time (the time between the first contact with asbestos and the occurrence of the disease) has now increased to more than 50 years. In the year 2005 the average latency time was 48.5 years, in 2014 it increased to 53.1 years.
There are various explanations for the increase in latency time. Because the use of asbestos only increased from the fifties of the last century, a long period of time is needed to properly determine the latency time. A second explanation is that people are getting older, they used to die from something else before they could get mesothelioma. The third explanation has to do with the fact that in the last century crocidolite asbestos was used more often and was used in high concentrations. Thereafter, this asbestos type was banned and the exposure was lower. The disease may manifest itself less quickly in the later asbestos exposure.
A long latency period has advantages: if it takes longer for people to get sick, they have more healthy years of life. However, there is also an important disadvantage: because the damage is barred, victims can no longer hold their (former) employer liable.
In the Netherlands we have an absolute limitation period of thirty years for these events. This begins to run from the moment the event causing the damage takes place. This means that three-quarters of the people who now have mesothelioma are faced with the limitation period, because they have become ill at a time when the damage in legal sense has already expired.
The principle of limitation is based on the principle of legal certainty. At a certain point, a citizen or company must know for certain that certain events are no longer recoverable in the past. Reservations for possible future claims must also be released. On the other hand, it is only when a citizen knows that there is damage that he or she can recover from a liable party.
In fact, all parties involved in the Netherlands agree that the limitation period is an undesirable obstacle in the pursuit of rapid claims settlement for asbestos victims. Some large employers and a large insurer have already decided in recent years to voluntarily refrain from relying on prescription.
This does not alter the fact that prescription is still the most important reason for not achieving a successful mediation. The IAS case file survey shows that in the past three years, 41% of unsuccessful mediations with an employer or insurer have been subject to limitation.
Minister Asscher of Social Affairs and Employment also recently discussed the issue. He is 'strongly motivated' to solve the limitation problem, he writes in June in a letter to the Board of Trustees and Advise of the IAS. According to the Minister, social partners should make agreements about this. He proposes an amendment to the Covenant asbestos victims' covenant in which the parties state that voluntary waiving of prescription is waived. If such an adaptation of the agreement is not possible, he leaves it explicitly open to amend the law.
The ball is now with the social partners. They now pulse their supporters, a response from the Supervisory Board and Advice is expected in a few months.
Back to the example of Mrs Hesse. In her case, prescription was not a problem, because the insulation material factory was insured with an insurer that is already voluntarily renouncing the reliance on prescription. In this way she could receive full compensation in the event of life. This does not give her story a happy ending, but it does make it slightly less sour. That is also what the other asbestos victims want.
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