Huge Asbestos Liabilities for Australian Government
A year ago, it was predicted that Australian asbestos claims could skyrocket; spokesmen from Trowbridge Consulting alleged that the number of potential plaintiffs had been grossly underestimated. In February, 2002, the same firm of actuarial consultants told the Stevedoring Industry Finance Committee (SIFC) that asbestos-related disease claims could cost the Australian Government more than A$440 million. This was, according to the accountants, the worst case scenario; total claims could be as low as A$110 million-A$220 million. It is likely that settlements will cost $10 million a year up to 2011 and reach $132 million a year later due to the latency period of asbestos diseases.
The SIFC, which inherited the responsibilities and liabilities of the Australian Stevedoring Industry Authority (ASIA), has been receiving compensation claims from waterside workers with asbestos diseases since 1989. A recent rash of cases stems from a landmark victory by the family of Brian Crimmins who, in 1998, was awarded A$833,622 after a series of court cases judged the ASIA to have breached its duty to protect workers from asbestos. Mr. Crimmins, who died of mesothelioma in 1998, had worked as a registered waterside worker in the Port of Melbourne between April, 1961 and November, 1965. As a stevedore, he unloaded hessian bags containing asbestos; bags would break and fibres would spill out creating "clouds of airborne asbestos dust. Dust accumulated on clothes, hair and arms… The plaintiff estimated that he worked approximately 20 days a year on asbestos cargoes. Neither the Authority nor any employer warned the plaintiff of the dangers of asbestos; nor was he provided with clothing or equipment to protect from the dangers…"
The High Court of Australia found that:
"Mr Crimmins was not only vulnerable to injury by reason of the hazardous nature of his employment but he was less able than employees in most other industries to protect his own interests. The casual nature of his employment precluded the development of any longstanding employer-employee relationship in which he might usefully seek to secure his own health and welfare. And his relative powerlessness in that regard was magnified by the Authority's directions as to when and where he was to work in circumstances in which he was at risk of having his registration as a waterside worker cancelled or suspended if he did not obey.
As already indicated, the Authority ought to have known from its inspectors of the frequency with which and the degree to which waterside workers at the Port of Melbourne were exposed to asbestos. Further, it knew that exposure to asbestos dust and fibres could be injurious to health. It was in a position to know what, if any steps, employers were taking to avoid the risks posed by asbestos. And more to the point, if employers were not taking adequate measures, the Authority was in a position to take various steps, short of making orders having the force of law, to control or minimise those risks.
Given the vulnerability of the late Mr Crimmins, the knowledge the Authority had or should have had, and its position to control or minimise the risks associated with the handling of asbestos, there was, in my view, a relationship between Mr Crimmins and the Authority giving rise to a duty of care on the part of the Authority to take those steps, short of making binding orders, which, in the circumstances, a reasonable authority with its powers and resources would have taken to avoid foreseeable risk of injury as a result of exposure to asbestos."
On 26 July, 2000, Ronald Gibson became the second waterside worker to win a case against the Federal Government in an asbestos case. Working as a stevedore at the Port of Sydney from 1956 to 1974, Mr. Gibson was exposed to asbestos contained in hessian bags. He was diagnosed with asbestosis in 1994. Two years later he launched a case against the SIFC and Patrick Operations Pty Ltd., his former employers. He was awarded the sum of A$100,000 after a long trial. An appeal was made and the original ruling was upheld. After the verdict, Gibson told reporters: "It’s good to see people made responsible for what they were responsible for. They had a total disregard for safety."
One hundred and fifty-nine other waterside workers who were exposed to asbestos during the unloading of ships in the 1950s and 1960s submitted claims to the Government last year according to the SIFC Annual Report 2000-2001. Compensation for these claimants is being delayed by legal technicalities according to plaintiffs’ solicitor Ken Fowlie. Federal Transport Minister John Anderson does not agree: "We are not trying to slow things down but it’s a pretty complex process and it takes a lot of time." According to government sources, the SIFC is vigorously pursuing potential co-defendants to maximise the funds reclaimed from negligent employers. Plaintiffs’ lawyers hope that the Government will eventually agree to compensate injured wharfies without putting them through the trauma of court actions.
March 20, 2002