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Precedent (Australian Lawyers Alliance) |
THE THIRD WAVE OF ASBESTOS VICTIMS
Australia was one of the highest users of asbestos in the world prior to the mid-1980s. Asbestos mines operated in New South Wales and Western Australia for many years. In addition, in the period from just prior to 1930 until 1983, about 1.5 million tonnes of asbestos were imported into Australia. This has led to Australia having the highest per capita incidence of mesothelioma (an incurable cancer of the lining of the lungs caused by exposure to asbestos) in the world. Despite contrary predictions, the incidence of mesothelioma continues to rise.
Asbestos-related diseases were traditionally linked to workers with direct contact, either through mining or working with asbestos in the manufacturing process. However, over the last 10 years a new demographic of mesothelioma sufferers has appeared in the population. Known as the ‘third wave’ of asbestos sufferers, these people are do-it-yourself (DIY) home renovators and their families.
Ten years ago, the predicted peak for the incidence of mesothelioma in Australia was 2010. Currently, the peak is not expected to be reached until at least 2017, if not later. The difficulty in determining the peak of mesothelioma claims is that vast amounts of asbestos remain in our community, most importantly in our homes. In 1971, John Reid, the then Chairman of James Hardie Asbestos Limited, told shareholders that two out of every three homes in Australia contained James Hardie asbestos cement fibro products.
The average life expectancy of a person diagnosed with mesothelioma is between 10 and 12 months. Mesothelioma has a latency period of between 20 to 50 years or more after exposure before symptoms appear. The poor prognosis for mesothelioma sufferers and the long latency period make litigation on behalf of asbestos sufferers challenging. This article addresses some of the additional challenges for practitioners seeking compensation for third wave mesothelioma sufferers, including deciding who to sue and establishing each element of negligence.
To date, claims have been brought against manufacturers of the asbestos cement building products or builders installing the asbestos cement building products. In most states in Australia, there was more than one manufacturer of asbestos cement building products. Where the asbestos remains in situ, it is normally not difficult to identify the manufacturer. However, it is increasingly more challenging to identify the manufacturer where asbestos sheets have been removed or demolished. In such cases, identification may rely upon the original building plans[1] (which sometimes contain a trade name, but mostly refer simply to fibro or asbestos cement sheets), the memory of the person installing the product or the identification of the hardware store where the materials were purchased.
In the future, as manufacturers become progressively more difficult to identify as asbestos is removed, it will be necessary to consider alternative defendants. Possibilities would include suing an architect who specified the use of asbestos products or possibly councils which approved building works using asbestos in the absence of any precautions. It may also be possible to sue landlords in relation to renovation or building work carried out by tenants which exposed them to asbestos dust and fibre, if it can be proved that the landlords knew or ought to have known of the presence of asbestos materials that would be disturbed during building or renovation work, and failed to advise tenants of the dangers.
First wave asbestos sufferers (the miners and those working in asbestos factories) and second wave sufferers (tradespeople, electricians, plumbers, dockyard workers, navy workers, builders, carpenters, mechanics and waterside workers) were exposed to large amounts of asbestos in industrial settings. By contrast, the third wave or ‘bystander wave’ is characterised by small exposures to asbestos outside of work, usually as a result of home renovations or washing the clothes of first and second wave sufferers. Many people have had a single exposure to asbestos; some were children at the time that building or renovation work involving asbestos was being carried out, and may have played with the offcuts of asbestos cement fibro building materials.
Whether or not a defendant owes a duty of care to a third wave sufferer will depend largely on the date when the building or renovation work was carried out, and the defendant’s requisite knowledge of the risk at the time of such building and renovation work.
In Seltsam Pty Limited v McNeill [2006] NSWCA 158, the New South Wales Court of Appeal overturned a decision of the Dust Diseases Tribunal that had found that Wunderlich Limited, a manufacturer, owed a duty of care to Father McNeill. Father McNeill alleged that he contracted mesothelioma as a result of exposure to asbestos in 1961, when he fixed corrugated asbestos cement sheeting manufactured by Wunderlich as a roof to a rumpus room in the backyard of the house of his sister and brother-in-law. He had worked on two or three Mondays, for two to three or sometimes four hours on each occasion, drilling holes in the sheets using a hand drill, cutting some sheets to size using fibro cutters and a saw, and cleaning up off-cuts.
The Court distinguished the duty of care owed to workers who handled asbestos cement sheets in industrial situations such as in factories or on construction sites and were likely to be exposed for hours in the course of working days over months or years, from the duty of care owed to home handymen and other low-intensity, casual end-users who were not exposed to asbestos in an industrial or other controlled situation, in the course of employment or for an extended period. While the Court held that a foreseeable risk of injury to workers has ‘long been clearly known’ ... ‘there was no ready translation from this body of knowledge to a conclusion about the reasonable foreseeability of risk of harm to a person in a class in which the respondent was a member’.[2]
The result in McNeill may have been different had the case been brought against Amaca Pty Limited (formerly James Hardie & Coy Pty Limited) or had the exposure occurred later in the 1960s. The disease mesothelioma and its association to asbestos had been established in the late 1950s. During the 1960s, knowledge increased as to the link between mesothelioma and small exposures to asbestos. By the mid-1960s, articles appeared in scientific journals linking mesothelioma to small exposures to asbestos such as washing clothes, building a rabbit hutch and living in the vicinity of an asbestos factory.
In contrast to the unsuccessful 2006 McNeill decision; two Western Australian cases filed against Amaca Pty Limited were successful in 2007 in establishing a duty of care to plaintiffs who carried out DIY home renovations that exposed them to asbestos, albeit in the 1980s: Amaca Pty Limited v Patricia Margaret Hannell as executor of the estate of David Richard Hannell [2007] WASCA 158 and Amaca Pty Limited (formerly James Hardie & Coy Pty Limited) v Moss [2007] WASC 162.[3]
The complexities in establishing a duty of care and the importance of the defendant’s knowledge are further exemplified by a 2014 case filed against the NSW Land and Housing Corporation. In Patricia Wells (as executor of the estate of the late Walter Wells) v New South Wales Land and Housing Corporation, DDT number 363 of 2014, Judge Finnane of the Dust Diseases Tribunal found against a plaintiff suffering from mesothelioma.
The late Mr Wells entered into a contract and purchased a house from New South Wales Housing Commission in the early 1960s by instalments. He was required by the Housing Commission to keep the house in good repair and repaint it every two years.The external walls of the house were constructed from asbestos cement fibro sheets. The late Mr Wells repainted the house himself twice, the last time being in about 1968. The painting work required him to brush back and sandpaper the old paint off the asbestos cement fibro sheets. He did this for three to four hours a day for about a week.
His Honour found that there was no evidence that the Housing Commission had actual knowledge of the dangers of exposure of asbestos to persons who were sanding back, brushing or painting fibro sheets. He also found that although the Housing Commission was a very large builder and developer, it ought not to have been aware of the dangers to asbestos in a category of persons such as the late Mr Wells. Judge Finnane referred in general to material available which disclosed the dangers of exposure to asbestos to workers in mines and in factories but did not show the dangers to a person who scraped, sanded or painted fibro. His Honour noted that in the materials tendered ‘nothing was directed to the owners or occupiers of fibro walled homes’.[4] Given the sparse reasons and the failure to refer to the evidence tendered, it is unclear what evidence was tendered and considered by His Honour and whether it included articles that appeared in the public domain from the mid-1960s discussing the link between mesothelioma and small exposures to asbestos.
No warnings as to the dangers of asbestos were placed on asbestos cement building materials until 1978, with a further and more extensive warning being placed on asbestos cement building materials in 1982. In Amaca Pty Limited v Patricia Margaret Hannell as executor of the estate of David Richard Hannell [2007] WASCA 158, the Court examined the warnings placed by James Hardie on its asbestos cement building products. The Court upheld the finding of the trial judge that the first warning labels were inadequate: ‘These labels cautioned only that breathing asbestos dust can damage health. That caution fails to bring to the reader's attention the seriousness of the injury that might result from breathing asbestos dust.’[5]
However, the Court overturned the trial judge's findings in relation to the second warning label put on products by James Hardie in 1982, holding that the label was adequate for the class of persons of which the respondent was a member (DIY home handyman). The Court did not accept the trial judge's more strongly worded suggested warning, noting that ‘It communicated to the effect that the product was such a danger that it should not be permitted to remain in situ and ought not to be worked on at all.’[6]
Hannell involved in situ exposure. Mr Hannell and his wife purchased a house in May 1982. The house had been constructed in the late 1970s. In April or May 1983, Mr Hannell removed a fence constructed from Hardiplank sheets, which involved taking apart pieces of the fence and cutting pieces to fit the new fence line. The work was done over a couple of weekends and a couple of nights. In February or March 1985, the late Mr Hannell painted the underside eaves of the house which included sanding and brushing back the eaves and washing down the eaves to get rid of the dust. The work was carried out over a period of about a month. The third exposure incurred in February 1990, when the late Mr Hannell painted the corrugated asbestos fence. Prior to painting, he brushed down the fence and used a wire brush to remove bird droppings. The job took a couple of days.
While the Court of Appeal agreed that a reasonable response to the foreseeable risk was to place warning labels on the products, it noted that where the exposure was to in situ products, the warning labels (which were affixed to the back of the sheets) would not have been an effective means of communicating the risk to persons such as the late Mr Hannell. Therefore, the failure to place warning labels did not cause the late Mr Hannell's injury.
The late Mr Hannell did not argue that James Hardie should have ceased manufacturing or selling asbestos cement products before they were used on the property that he purchased in the late 1970s. Rather, he argued that James Hardie should have advertised in the mass media as to the dangers of exposure to asbestos. The Court of Appeal rejected this argument. The Court noted that there was very extensive news and current affairs coverage in print and electronic media during the second half of the 1970s and the first half the 1980s concerning the dangers of asbestos, including the risks to handymen, and that it was therefore reasonable to expect that an adult in Western Australia during that period would have gained a general understanding of the risks of asbestos cement products. The late Mr Hannell arrived from England in 1981. He gave evidence that he did not know asbestos exposure could cause cancer. The Court used this to illustrate the limitations of mass communication via news or current affairs.
The trial judge found that had James Hardie made public announcements or placed advertisements on a monthly or more frequent basis about the dangers of exposure to asbestos to a handyman, including the risk of contracting mesothelioma, then it would likely have come to the attention of persons such as the plaintiff. However, the Court did not accept that this was a reasonable response to the risk. The Court of Appeal noted that ‘the frequency and scope of the advertisements necessary to reach the majority of members of the class (membership of which class will continuously change) would itself communicate a warning of a kind that is disproportionate to the very low risk of harm involved ... mass media advertising of a very low risk of serious harm particularly having regard to the myriad of sources of such risk to which people are exposed on a daily basis, is not a reasonable or practical response to the risk’.[7]
Subsequent cases have sought to distinguish themselves from the decision in Hannell by arguing that James Hardie should have ceased manufacturing asbestos cement fibro building materials prior to 1983, and by providing evidence in relation to the cost and effectiveness of public warning campaigns and the scope of the advertising carried out during the relevant period by James Hardie.[8]
CAUSATION
The issue as to causation in the context of mesothelioma claims has been resolved following the decision of the High Court in Amaca Pty Limited v Booth [2011] HCA 53; [2011] 246 CLR 36. The plaintiff, Mr Booth, worked as a mechanic. The defendants argued that he could not prove that his exposure to brake linings, as opposed to other exposures to asbestos and background exposure, caused his mesothelioma.
In BHP Billiton Limited v Dunning [ 2015] NSWCA 55, Justice Basten noted that ‘although it was once thought the tumour could be caused by a single fibre, the medical evidence at trial supported the view that all inhaled fibres properly contribute to the condition, so that any exposure to airborne asbestos resulting in inhalation of fibres at a level which is not trivial or de minimis will probably make a material contribution to the processes by which the tumour develops. The expert evidence to that effect reflected that discussed in Amaca Pty Limited v Booth.’[9] For the purpose of causation, it is now sufficient for a plaintiff to prove that exposure to asbestos was not trivial or de minimis.
Increasingly, claims by third wave victims (who include a higher proportion of women and younger plaintiffs) have included significant claims under s15B of the Civil Liability Act (NSW) 2002 for the loss of capacity to provide domestic services to another, including loss of ability to care for children, grandchildren and disabled spouses. A number of these awards have been subject to appeal, as the court has grappled with the legislative requirements of the section and, in particular, the concept of reasonableness in the context of care provided to young children or a spouse where at least part of the care is provided jointly with another (see Amaca Pty Limited v Novek [2009] NSWCA 50; State of New South Wales v Perez [2013] NSWCA 149; Amaca Pty Limited v Phillips [2014] NSWCA 249, and the most recent decision of Dionisatos (for the estate of the late George Dionysatos) v Acro Formwork & Scaffolding Pty Limited [2015] NSWCA 281).
Section 15B(2)(c) and (d) require that there will be a need for the services to be provided to a dependant for at least six hours per week and for a period of at least six consecutive months, and that the need is reasonable in all the circumstances. In Perez, Justice McFarlane observed that the phrase ‘reasonable in all the circumstances’ could not sensibly be understood (as a trial judge held it should be) as referring simply to the dependant’s needs construed in the abstract. Rather, Justice McFarlane construed the paragraph as referring to the needs of the dependants that, but for the claimant's injury, would have been satisfied by the claimant.[10]
Perez concerned care being provided by a grandfather to his grandchildren in conjunction with the grandmother. Justice McFarlane noted that if a grandparent was providing care where the parents were readily available to provide such care, it was unlikely to be ‘reasonable in all the circumstances’. On the other hand, where a relative has had to give up paid employment to provide the services to the dependants following the claimant's injury, the need for the services would likely be ‘reasonable in all the circumstances’.[11]
The notion of reasonableness was expanded upon in Dionisatos, where Justice Gleeson noted that the phrase ‘reasonable in all the circumstances’ qualifies not the word ‘need’, but the phrase ‘that need’: ‘Thus the focus is not merely the need of the dependant, but the time which would have been taken to deliver services in satisfaction of that need. This involves an evaluative judgment undertaken by reference to the standard of reasonableness having regard to all the relevant circumstances in the particular case.’[12]
In Dionisatos, the late Mr Dionysatos made a claim for the care he provided his wife, who was suffering from dementia. The trial judge, while finding that Mrs Dionysatos could not be left alone for periods in excess of 30 minutes given the possibility that she may fall or wander, awarded care for only 50 hours a week, being the time when Mrs Dionysatos' son and daughter were unavailable to provide care because they were working. His Honour noted that the care provided outside of work hours by the son and daughter was in discharge of ‘filial duties’ owed to an aged parent.[13]
Justice Gleeson found that his Honour's approach was in error, in that he undertook his calculations on the basis of the extent to which Mrs Dionysatos' need for services was being satisfied by other family members, rather than evaluating the evidence concerning the extent to which the late Mr Dionysatos and other family members had been jointly responsible in the past for caring for Mrs Dionysatos. As in Perez, where multiple carers were involved, there must be evidence and findings as to whether more than one carer was required.
Emerging treatments that assist in extending the life expectancy of mesothelioma sufferers have raised further issues, including liability to fund such new (and expensive) treatments. For example, the chemotherapy drug Avastin, which costs approximately $30,000 per treatment (with six treatments typically being required), has been shown to extend the prognosis of mesothelioma sufferers by three to four months when used in conjunction with other chemotherapy treatments. Additionally, a new immunotherapy drug, Keytruda, is now being offered as a second-line treatment for mesothelioma. Keytruda has had some success in treating melanoma. A recent Phase 1 clinical trial involving 25 patients with mesothelioma showed a 76 per cent response rate, with 28 per cent of the patients achieving a partial response (reduction of tumour) and 48 per cent stable disease (no growth of tumour). The author of the research presented at the American Society of Clinical Oncology in April 2004, noted that ‘the 76 per cent disease control rate in the previously treated malignant pleural mesothelioma population is unprecedented and warrants further study’.[14]
Keytruda costs approximately $9,500 per treatment, with treatment being every three weeks. If the treatment is successful (which should be known by the end of four to six treatments) the treatment will continue indefinitely at a cost of approximately $150,000 per year.
A number of plaintiffs who have been prescribed or recommended Keytruda treatment by their treating oncologists (noting that second-line chemotherapy has a success rate of between 0 to 10 per cent for mesothelioma sufferers and no other second-line treatment is available) have claimed the cost of Keytruda in proceedings in the Dust Diseases Tribunal of New South Wales in claims against Amaca Pty Limited. To date, Amaca has denied liability to pay such damages, arguing that the treatment has not been shown to be efficacious.[15] Whether or not such treatment will be held by the court to be reasonable in the circumstances of the plaintiff and the defendant is yet to be determined.
With the incidence of mesothelioma still rising, particularly in third wave sufferers, it is likely that the legal issues identified above will receive the attention of the courts for many years to come.
Tanya Segelov is a Partner of Turner Freeman Lawyers and has acted for sufferers of asbestos diseases for 20 years. PHONE (02) 8222 3333 EMAIL ts@turnerfreeman.com.au.
[1] Building plans are usually available from local councils, or from the builders/owners.
[2] [2006] NSWCA 158 (McNeill) at para 28.
[3] Moss lost his case on appeal on the issue of causation.
[4] Wells (unreported decisions), at para 16.
[5] Hannell, at para 360.
[6] Ibid, at para 362.
[7] Ibid, at para 366.
[8] There have been no judgments in these cases; all of these matters have settled.
[9] Dunning, at para 2.
[10] [2013] NSWCA 149 (Perez), at para 38.
[11] Ibid.
[12] [2015] NSWCA 281, at para 301.
[13] Ibid, at para 307.
[14] <http://www.ascopost.can/viewnesw.aspx?nic=26586> .
[15] None of these cases have run to judgment; to date, all have settled.
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URL: http://www.austlii.edu.au/au/journals/PrecedentAULA/2015/71.html