Medical and Legal Developments in Australia
In Australia, recent efforts to address the country's asbestos tragedy have resulted in medical discoveries and innovative strategies. In 2006, the federal government provided funding to set up a virtual centre to coordinate the work of Australian researchers looking for novel therapies and procedures to treat and cure asbestos-related diseases such as the asbestos cancer, mesothelioma. Under the directorship of Professor Bruce Robinson, the National Centre for Asbestos-Related Diseases (NCARD) has become world renowned for its efforts and achievements. Towards the end of last year, NCARD researchers from the Sir Charles Gairdner Hospital announced an exciting medical breakthrough: mice with advanced mesothelioma tumors had been cured.1 Researchers Steve Broomfield and Andrew Currie reported the successful treatment of half the subjects with Aldara,2 a commercial skin cancer cream, in combination with anti-CD 40, a stimulant drug. Dr Currie said “This combination is so attractive because one of the drugs is already commercially available and the other is being tested in clinical trials.” Experts predict that by 2011-2013, the drug therapy could be available for use on human patients.
On January 20, 2009, the Bernie Banton Centre for Asbestos Diseases Research was officially opened by Prime Minister Kevin Rudd who paid tribute to the late Mr. Banton, “an extraordinary bloke,” who came to represent the face of Australia's asbestos sufferers. Rudd spoke of the Australian Government's ongoing commitment to:
“the national efforts to improve the diagnosis and treatment of asbestos-related diseases. From 2007 the Government has provided $6.2 million over three years to the National Research Centre for Asbestos Related Diseases, which links together 11 asbestos research centres around Australia.
Last month the Government announced $2.5 million from 2010 for the establishment of a Centre of Research Excellence into Asbestos-Related Disease. The Government has also announced the Bernie Banton Asbestos-Research Fellowship, to support an eminent researcher working in the area of mesothelioma or asbestos-related diseases.
To build on these initiatives I'm pleased to announce today that the Commonwealth will contribute $5 million to support the Bernie Banton Centre's final fit-out costs and to provide a dedicated research facility.”3
The two level, 2,700 square meter building is located at Sydney's Concord Hospital, the medical facility at which Mr. Banton was treated during his illness. Staff at the centre will “study pathways to diseases and relate them to prognosis and treatment, concentrate on prevention and ensure victims receive optimum treatment.”
Recognizing the significance of the day's event for Australia's asbestos sufferers, Sharan Burrow, President of the Australian Council of Trade Unions, called on the Government to launch a wide-ranging inquiry to identify ways to minimize future asbestos exposures and improve support services for the injured. Amongst the measures she recommended were: setting up a national asbestos removal program, establishing an Australian register of asbestos-contaminated infrastructure, fast-tracking compensation and legal remedies and adopting judicial measures to ensure that companies meet their obligations.
When Australia banned asbestos in 2003, a prolonged exemption for military use was allowed.4 Details of a “secret” risk assessment undertaken for the Navy were leaked earlier this month; they document a serious and ongoing risk to thousands of sailors from exposure to 250,000 parts containing asbestos currently held in naval stores.5 Dave Oliver, national secretary of the union that represents Defence Department workers and contractors, wants the derogation to be rescinded:
“Our members who are employed or contracted to the Defence Department are being exposed on a daily basis to this deadly fibre – five years after the national ban on asbestos was introduced in Australia. This is unacceptable.”
Defense Minister Joel Fitzgibbon was also alarmed by the asbestos risk and called for urgent action “notwithstanding the fact that it's likely to cost Defence a lot of money.”6
Important legal precedents have been set in recent months which include the resolution of the following cases:
- Antonio Lo Presti v Ford Australia
After a claimant's verdict was handed down by the West Australian Supreme Court in February 2008 in the first successful asbestos case for an Australian motor mechanic,7 the defendant, Ford Australia, appealed; in December 2008, the company dropped the appeal citing “commercial reasons.”
According to Solicitor Michael Magazanik, who represented 58-year-old Mr. Presti:
“The judgment underlines the fact that even though Ford Australia knew that asbestos was potentially deadly it failed miserably in its duty to warn mechanics like Mr. Lo Presti who were exposed to asbestos in a daily basis.
Ford's lawyers told the Court that no claim like this against a car manufacturer had ever succeeded anywhere in the world. However Mr. Lo Presti's success will give heart to other mechanics whose health has suffered after being negligently exposed to asbestos in brake pads.”8
- Janina Puttick (as executor of the estate of Russell Simon Puttick) v Tenon Limited (formerly called Fletcher Challenge Forests Limited).9
This judgment, handed down on November 12, 2008 by the Australian High Court,10 is a victory for the surviving family of a man whose asbestos death was caused by exposure experienced whilst making professional visits to factories in Belgium and Malaysia during employment for Tasman, the subsidiary of a New Zealand-owned firm.
In a unanimous decision, the 5 judges set aside Justice Harper's orders (2006) which stayed proceedings in Victoria on the grounds it was an inconvenient or inappropriate forum. The claimant's verdict found that “Geographical proximity, similarities between legal systems and legislation for the determination of some trans-Tasman litigation meant Victoria was potentially an appropriate forum.”
January 25, 2009
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1 O'Leary C. Perth study finds lung illness 'cure'. November 28, 2008.
http://www.thewest.com.au/default.aspx?MenuID=77&ContentID=110472
2 Aldara, applied to the skin, is normally used for the treatment of basal cell carcinomas; in these experiments it was injected into the mice mesothelioma tumors.
3 Kevin Rudd Address at the Opening of the Bernie Banton Centre, Sydney. January 20, 2009.
http://www.australia.to/index.php?option=com_content&view=article&id=3924:kevin-rudd-address-at-the-opening-of-the-bernie-banton-centre-sydney&catid=72:australian-news&Itemid=29
4 This derogation is due to expire at the end of 2010.
5 Doherty B. Pressure builds on Defence Force to remove deadly asbestos. January 9, 2009.
http://www.brisbanetimes.com.au/news/national/pressure-builds-on-defence-force-to-remove-deadly-asbestos/2009/01/08/1231004244137.html#
6 Fitzgibbon alarmed by Navy asbestos report. January 7, 2009.
http://www.abc.net.au/news/stories/2009/01/07/2460506.htm
7 Mr. Lo Presti, who worked for Ford in the 1970s and 1980s, was awarded A$ 840,000 (US$ 547,517) for the negligent exposure he received from asbestos contained in brakes.
8 Slater & Gordon Media Release. Landmark win on asbestos brake pads. February 9, 2008.
http://www.slatergordon.com.au/docs/MediaReleases/Landmark%20Win%20on%20Asbestos%20Brake%20Pads%2008-02-19.pdf
9 http://www.hcourt.gov.au/media/Puttick_v_Tenon.pdf
10 The Australian High Court is the final court of appeal in Australia and equates to the U.S. Supreme Court.
