James Hardie ordered to pay $1 million to South Australian asbestos victim
On 26 May 2017 His Honour Judge Gilchrist of the District Court of South Australia handed down judgment in the matter of Latz –v- Amaca Pty Limited (formerly James Hardie & Coy Pty Limited). Mr Latz was represented by Turner Freeman partner, Annie Hoffman. He was diagnosed with mesothelioma in October last year. He had previously been exposed to asbestos whilst building a fence using “Super Six”, a corrugated asbestos cement sheet manufactured by James Hardie, in about 1976 or 1977. Mr Latz had spent most of his working life working for the State Government as a survey draftsman. As a result he was entitled to a State pension until his death. Mr Latz claimed damages which included the loss of his pension entitlements given that his life will be cut short as a result of his mesothelioma. In addition, Mr Latz claimed exemplary damages pursuant to Section 9(2) of the Dust Diseases Act 2005 (SA).
The defendant disputed the claim for loss of pension entitlements. The defendant argued that a benefit payable to Mr Latz’s partner upon Mr Latz’s death needed to be deducted from Mr Latz’s entitlement. Mr Latz’s partner is entitled to a pension herself equivalent to two-thirds of Mr Latz’s pension upon his death. The defendant argued that this benefit needed to be deducted, otherwise there would be double compensation. Judge Gilchrist rejected this argument finding that it was important not to lose sight of the fact that this was not a claim for Mr Latz’s partner, but for Mr Latz. He concluded that the benefit to Mr Latz’s partner had to be ignored for the purposes of assessing Mr Latz’s claim. He then awarded an amount of $500,000 for loss of pension which included an amount for the loss of the Age Pension.
The judgment is also significant as it is the first time that an award for exemplary damages pursuant to Section 9(2) of the Dust Diseases Act has ever been made against Amaca Pty Limited (formerly James Hardie & Coy Pty Limited). Section 9(2) of the Dust Diseases Actprovides that a court should make an award of exemplary damages against a defendant who knew that the injured person was at risk of exposure to asbestos dust and also knew at the time of the exposure that exposure to asbestos dust could result in a dust disease. The award of exemplary damages is significant as these damages are awarded not to compensate, but to punish the defendant for their conduct. In making the award of exemplary damages, Judge Gilchrist noted:
“The significance of the evidence of James Hardie’s state of mind from 1938 onwards is that it establishes that by about 1976, when it harmed Mr Latz, it was well aware that he was at some risk of dying as a result of the use of its product. It was well aware that there were precautions that he, as an end user, could implement to reduce that risk. It failed to give him any warnings or advice about precautions and its failure to do so was motivated by its thirst for profit which it valued ahead of his safety.“
Judge Gilchrist then awarded an amount of $30,000 by way of exemplary damages.
Mr Latz was awarded the total sum of $1,000,062. This is the largest award that has been made in any asbestos case in South Australia.
For further advice about the judgment, do not hesitate to contact Annie Hoffman of our office on 08 8213 1000.
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Further media articles on this judgment are below: