Australia: Escalation in Asbestos Litigation 

by Laurie Kazan-Allen



In January, 2001, Australian insurers were warned that asbestos-related compensation claims could skyrocket. Spokesmen from Trowbridge Consulting told delegates to the Eighth Australian Accident Compensation Seminar that such claims could have been underestimated by more than 150 per cent. The explosion in litigation was blamed on proactive plaintiffs’ firms, changes in legislation which mean that a damage claim survives the death of a plaintiff and lowering of the standard of causation for asbestos-related lung cancer. Precedent-setting payouts last year included a sum of $1.5 million (£550,000/US$765,500) to a Melbourne solicitor and an $800,000 (£292,000/US$410,000) award to a home renovator from Adelaide. The later client, Helene Edwards, is dying from mesothelioma which she contracted after installing asbestos sheeting produced by the James Hardie Company in her bathroom twenty-three years ago. Allan Hope, a fifty-one year old Melbourne builder, was offered a settlement of $500,000 (£182,500/US$255,500) in November, 2000 by James Hardie Industries. The day the settlement was accepted, the defendants cancelled the agreement as they said a radio interview by Mr. Hope had broken the confidentiality clause. After negotiations, another settlement was reached; the sum remained undisclosed. The size of these awards are exceptional as illustrated by the sums handed out for the following cases: a Sydney woman, who had washed her husband’s asbestos-covered work clothes, received $370,000 (£135,000/US$190,000) in March, 2001; the Dust Diseases Tribunal ordered James Hardie Company to pay another female victim of para-occupational exposure $400,000 (£146,000/US$204,400). In August, 2001, developments in Melbourne set an important precedent for asbestos cases. For the first time, defendants recognised the financial value of non-paid domestic work undertaken by husbands over retirement age. Government statistics report that on average men over 65 spend 19.5 hours per week on domestic services such as mowing lawns, home maintenance, driving, painting and gardening. Since the deaths of their husbands, many of the eleven female claimants "have seen their houses fall into disrepair because they cannot manage them alone, or because they are under financial strain having to pay others to do the work their husbands previously did," said plaintiffs’ lawyer Suzanne Sandford. The amounts of the compensation paid to the widows of the waterside workers were not disclosed by the Stevedoring Industry Finance Committee, James Hardie and CSR, the defendants in this action.

As can be seen by the multiple mentions of James Hardie Industries Ltd. (JHL) in the above paragraph, this defendant is frequently named in Australian asbestos litigation. In February, 2001, JHL announced the setting up of a foundation "to compensate sufferers of asbestos-related diseases with claims against two former James Hardie subsidiaries and fund medical research aimed at funding cures for these diseases." The new body, chaired by Sir Llewellyn Edwards, is named The Medical Research and Compensation Foundation. It is financed by assets of $293 million including investments and cash reserves which will, so the company claims, cover all current and future workers’ compensation claims for asbestos-related diseases. An additional $3 million has been earmarked for scientific and medical research. On March 23, 2001 protestors took to the streets in Sydney to express their outrage at the limitations of the scheme. John Robertson, the Assistant Secretary of the Labour Council, expressed the feelings of many when he said: "For years and years and years, James Hardie knew the effect of asbestos on workers, but they continued to deny its effects. What happens when the $293 million goes away?"

August 15, 2001



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