A Helping Hand for Asbestos Victims
Victims of asbestos-related cancer have, for a change, been on the receiving end of some good news in the United Kingdom and Australia. On October 1, 2008 the new Mesothelioma Scheme 2008 started to accept claims from anyone in the UK who has contracted mesothelioma regardless of the source of their exposure. According to the Department for Work and Pensions (DWP):
“The payment package will provide up-front financial support within six weeks to people who were previously not eligible, including those who were:
- exposed to asbestos from a relative (e.g. from their overalls);
- exposed to asbestos environmentally (e.g. lived near a factory using asbestos);
- self-employed; and
- those who can't trace their exposure to asbestos.
Currently only people who contract the disease from exposure to asbestos at work are eligible to claim a lump sum from the state.”1
On October 7, 2008, a law was introduced by the State of Victoria (Australia) which brought to an end a long-standing injustice. Previously, asbestos-injured workers were forced to play a type of Russian roulette in deciding when to bring legal claims for their conditions, as obtaining compensation for one asbestos-related condition precluded a further claim being brought. As was seen in the high-profile case of Bernie Banton, it is possible for someone suffering from asbestosis to contract the fatal asbestos cancer, mesothelioma.2 According to Workcover Minister Tim Holding, the Asbestos Diseases Compensation Bill, introduced on October 7, 2008, rights this wrong for sufferers and their relatives.
The courts in Western Australia (WA) are familiar with the complexities of asbestos litigation; the State has experienced a tidal wave of asbestos-related deaths due to its proximity to Australia's only crocidolite mine and its widespread use of asbestos-containing building products. Recently WA's Supreme Court upheld the right of a smoker to obtain compensation for asbestos-related lung cancer.3 The judgment handed down on September 26, 2008 upheld the 2006 ruling by Justice Eric Heenan which had awarded compensation of $600,000+ to the plaintiffs by a margin of 2:1 with Justices Steytler and McLure finding for and Chief Justice Martin finding against.4 Speaking on behalf of the Cotton family, Solicitor Tricia Wong said:
“It has been a long hard struggle for them and life has not got any easier since Paul died… What we are seeing here is a court applying long-standing principles of law to a situation where a working man, who was a smoker, had contracted lung cancer after also being exposed to significant levels of asbestos fibre in the course of his work.
The medical experts that were preferred by the court confirmed that the current state of medical science was that when both of these cancer causing agents are mixed in together, the risk of getting lung cancer is significantly increased. Sadly, in Mr. Cotton's case, that risk came home.
The issue for the court was whether the exposure to asbestos made a difference to him getting lung cancer. In this case it did make a difference and he paid the ultimate price in a circumstance where evidence was that Mr. Cotton's employers knew of this risk and failed to do anything about it.”
October 10, 2008
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1 DWP Press Release. Faster Payments for Mesothelioma Sufferers a Step Closer. October 1, 2008.
http://www.dwp.gov.uk/mediacentre/pressreleases/2008/oct/emp011-011008.asp
2 http://en.wikipedia.org/wiki/Bernie_Banton
3 Cowan S. Court upholds smoking payout. The Western Australian. September 28, 2008.
http://www.thewest.com.au/default.aspx?MenuID=77&ContentID=100043
4 http://www.austlii.edu.au/au/cases/wa/WASCA/2008/200.html
