Partner discussing asbestos found in Telstra pits and the government NBN project
Thursday, 6 June 2013
CS It is 28 minutes to 2 o’clock. Our regular segment on Thursday brought to you by our good sponsors Turner Freeman Lawyers and today a new face, a new lawyer, coming into the studio and she’s happy to take your calls on 131873, Tanya Segelov. Did I get it right?
TS You did.
CS I did get it right. Terrific to have you here.
TS Lovely to be here.
CS Now, one of the big stories and we’ve covered it today, we covered it yesterday, we covered it the day before. As a matter of fact, a few of us covered it last week is this asbestos scare or whatever you want to call it, related to these Telstra pits as they try and install the NBN throughout Australia. I thought it was a good opportunity to talk about asbestos history, at least legal history, with you. Now you specialise in this area, do you? Compensation as well as the area of asbestos?
TS I do.
CS Right. How many cases have you handled?
TS I’ve been working in this area since 1994 and I have handled many many cases. I am prohibited in talking in any great detail about particular cases because of the Workers Compensation legislation which restricts me advertising myself as a lawyer but I can talk in general about the history of asbestos and about cases that have been run.
CS In terms of Turner Freeman, you were involved, as a company, back in the 80’s with claims about asbestosis, is that right?
TS There have been claims that have run since the 1980s and we have been involved in those claims.
CS Now, tell us a little bit about those earlier cases, through the 80’s, when not much was known about the link between asbestosis and dealings with, you know, asbestos that would form walls and cavities and all sorts of building products. We weren’t aware of the connection at that stage were we?
TS Individuals may not have been. Companies certainly were. You go back and you look at the documents that are discovered by companies such as James Hardie and they show from before the 1930’s they were aware of the dangers. You look at what the Commonwealth Government knew when they were receiving memos, particularly in relation to naval workers on ships in the 1940’s talking about the dangers of exposure to asbestos.
TS And you go back and look at the medical journals and you go back to the end of the 18th Century in England, the Chief Inspector of factories was starting to raise questions about asbestos and the dangers of asbestos so the knowledge was out there, it didn’t reach the individuals and largely because the individual workers were never told. They were never told, in most cases, they were handling asbestos and they were never told of the dangers of it.
CS I had one former employee at James Hardie on the phone only an hour ago saying exactly that. That he signed a document where they knew of the alert, of the warning, of the dangers associated with many of their products way back and he actually said that some of the executives he worked with contracted asbestosis themselves.
TS It’s a very…the indiscriminate nature of the disease means that there were executives of James Hardie who died from asbestos disease and there have been people who have contracted disease from very small exposures to asbestos. People who never worked in the industry, people who have carried out home renovations or perhaps have been exposed as a result of others in their family working with asbestos, who’ve then gone on to contract mesothelioma so it has cut across all broad section. Our former governor, Sir David Martin, died of mesothelioma, there’ve been a number of prominent Australians who have died of mesothelioma as a result of coming into contact through their former work or through home renovations.
CS Yeah, there is a process of applying for compensation, there’s a process of seeking the evidence required to prove your case. We’ll talk about that after the break and, by the way, Tanya can take your calls as we normally do in our legal segment “Legal Matters”. Turner Freeman Lawyers, our sponsors of the segment.
20 to 2. Yeah a little bit of good tucker later in the programme. We’re talking chocolate, we are talking Darrel Lea and a success story. They’ve turned the company around. It’s a great little story we’ll do a little later. I’ve got Tanya Segelov from Turner Freeman, our lawyers who appear every Thursday in the studio this afternoon. They’re our sponsors for this particular programme. Just differentiate for me if you may Tanya the difference between asbestosis and mesothelioma?
TS Asbestosis is a benign disease but can progress to the level in severe cases where it can kill people. It is…basically what happens is the lungs harden making it harder and harder to breathe and that progresses to the point where people need full time oxygen and then go into respiratory failure and it affects their heart. Asbestosis is connected with very heavy exposure, industrial exposures. So you see asbestosis in power station workers, you see it in people who worked in asbestos factories, in naval workers, people who had…waterside workers, people who had large exposures to asbestosis. Mesothelioma is a cancer of the lining of the lung and the devastating thing about mesothelioma is there’s no safe level of exposure so people can get mesothelioma from very small exposures to asbestos. What happens is that fluid builds up in the lungs similar to pneumonia and it is a terminal disease. The average prognosis is 9 to 12 months from diagnosis and people basically will drown to death as a result of the fluid.
CS Oh dear or dear. Darren, you’ve got a question for Tanya. Go right ahead.
C1 G’day guys. How are you?
CS Very well.
C1 I was just listening to Ray when he first spoke to the CEO at Telstra the other day and there was a lot of speculation prior to that conversation about where the buck stops in terms of accountability. What I found curious about what the CEO said to Ray was regarding…he basically said the words Telstra takes full accountability for this situation. How is that from a legal standard, I know I’m not a lawyer but, what sort of gravity does that kind of statement have from a CEO about a topic of that nature?
CS Good question.
C1 To me, it was a…I thought, well he says that to the nation and then I know that you guys would record the shows for historical purposes, does that then become legal proof?
TS It could be, it depends on the circumstance of it and the authority he had to make that admission, it could be. But it would also depend in the event that there were claims later on, the…whether Telstra did fight the claims or admitted liability immediately in relation to those claims. It would be very very difficult in these circumstances, particularly for workers for Telstra to deny liability and I would be surprised if they did but hopefully we won’t see a lot of disease come out of it and hopefully Telstra will do the right thing now and ensure that workers are protected.
C1 It’s just to get an idea of where accountability comes and lies. Does it come down to the contractual arrangements that the Government had in place for Telstra from the get go regarding the handling of this operation or does it come down to the wording of the sub-contracting arrangements that Telstra had with their outsource providers?
TS The Court will look beyond any contract. If it has a legal liability, it can’t contract out of the legal liability to protect people’s health so employers always have what’s called a non-delegable duty to look after their workers but as well as the employer, other people can be responsible such as Telstra if they had overall control of the site if they had knowledge of the dangers and if they had knowledge that the practices they put in place were not being followed and also if the Court deemed that in 2013 the practices they put in place were not sufficient to protect the workers.
CS So even if they have contracted out to a firm who sub-contracted then sub-contracted to someone who’s hired a budget rent a vehicle which we know to be true and mum and dad are doing something they’ve been told to do properly, Telstra can’t wipe their hands of their responsibility?
TS No, the Court will look at who and what Telstra knew and what Telstra should have done to discharge its duty in all the circumstances of the case.
CS Ok, getting back to the science of all this. You spoke about the difference between asbestosis and mesothelioma. Blue and white asbestos. They’re saying that white is the less dangerous asbestos but people die from contact with fibres from white asbestos, do they not?
TS They do. All three forms of asbestos are dangerous. All three forms of asbestos kill. They have different potency levels. Blue asbestos is more potent than white but all three do cause mesothelioma. The other thing in relation to the Telstra pits is a lot of those pits were made for a period of 10 years with whiten and blue asbestos.
CS Yeah, whiten and blue asbestos. Jennifer, go ahead/
C2 Hello. I wanted to ask a question. If children at the school were running around on an oval, had billycart derbies, you know, dust thrown in their face at an oval that had asbestos-related material buried in it, how dangerous do you think that’s likely to be?
TS What is dangerous is breathing in the fibres. So, if there was a way that the fibres were released from the asbestos that’s in the ground. Remember, asbestos doesn’t disintegrate so that’s why its disposal is so important because it stays there and it gets churned up and brought up. If there was some exposure then they have some risk, but it is a very very rare disease and people who have been exposed to asbestos have a 3% lifetime risk of contracting mesothelioma.
TS 3%. We need to keep that into perspective because we’ve all been exposed to asbestos. It is everywhere in this country. It’s in our houses, it’s in our schools, it’s in our hospitals, it’s in most commercial and government buildings so we all have daily background exposure to asbestos. There is an increased risk, and it’s a 3% increased risk if you go beyond that background level of exposure but what it is is a risk that is entirely preventable by proper and safe practices.
CS Mike just phoned through from the Asbestos Diseases Foundation. Mike, thank you for waiting, you’ve heard a lot of what’s gone to air already this afternoon, you’ve heard from Tanya as well. A comment from you?
C3 Yeah, look, just to say, that lady that is there with you, Tanya, she’d be one of the finest examples of defending these people that you’d find in this country. What she doesn’t know about asbestos isn’t important. That poor lady is…I got the impression she must have thrown her hands in the air and given it up…the one from Canberra, she was on a few…
CS Joan rang before yeah.
C3 Yeah, she’d do well to get in touch with Tanya.
CS You’re not wrong. Joan from Canberra. We might even try and contact her ourselves. I’ll get Bridgette to track her down.
C3 Tanya can. There’s just another aspect I want to bring to your attention Chris and the people who are listening. Pretty soon, you’ll find that these opportunists will be operating, they’ll be going around to people preferably the ones who live on their own and aged people, knocking on their doors saying, we believe your house has got asbestos and we’ll do this free service for you and all this stuff, rest assured, they’d be out there doing this now while you and I speak so we’re alerting people. If anyone approaches them in the fashion, especially aged people, then if they need to they can ring the clubs and tell them that they’ve been asked and get them on the job.
C3 The other thing is…if by some decision they make that they’ll go ahead and have a look at this thing, make sure that they have a current licence, handle it physically to see that it’s not just something scratched on a piece of paper and get an indication of where they have worked and so on. Those things, they will all make themselves…well we’ll be looking at that pretty soon. It’s not unlike the pink bats you know so…
CS It’s a timely warning Michael and it’s so sad that that would be happening right now. Thank you very much for your call.
C3 Pleasure Chris, bye.
CS Much appreciated. The next step, the next conversation I’d like to have with you Tanya is, how do people go about creating a case that they think it legitimate to create and apply for to get compensation for their exposure to asbestos. We’ll get to that right after a quick break. It’s 11 to 2.
Our legal segment brought to you by Turner Freeman legal matters, Tanya Segelov in the studio right now. I want to go to the concept of applying for some kind of case or gathering evidence to support the case that you have been impacted by asbestos. How does someone go about that? Where’s the first place to start? If they think they had been exposed in some year and they think they may be ill from some kind of lung disease?
TS The first point is always to get a diagnosis of an asbestos related disease because we all live in a community where we’ve been exposed to asbestos so it’s, thankfully, a very very small percentage of people who’ve been exposed will get a disease but there needs to be, before you can bring a claim, a diagnosis of a disease and then what we need to do is connect that diagnosis with some exposure in the form of an employment, in the form of use of some product or manufacture or exposure as a result of someone else’s use of a product or employment so it’s a little bit of detective work because you’re dealing with things that happened by the nature of the latency period for the disease 30 or 40 years ago so you would need to work out what someone was doing 30 or 40 years ago which could have exposed them to asbestos and then see if you can identify a party to sue who was their employer, who was the manufacturer of the product, who was someone who had overall control of the work.
CS And, of course, as we’ve seen with James Hardie, they will do absolutely everything to break the link that you were trying to make.
TS Yeah, because there are a large number of claims, there have been many challenges to the High Court, there have been many tactics by defendants because it’s not an individual claim. Every time they see an individual, they can see the thousands of people lining up behind them so they have run claims such as “the white asbestos doesn’t cause mesothelioma” argument, they’ve run claims that a plaintiff needs to pinpoint the actual exposure that caused the disease and if you can’t pin the actual out of several exposures you lose and these issues have gone all the way to the High Court and been determined so it’s very hard for litigation.
CS The one thing that I think is important in all of this is we talk about breaking up Telstra pits full of blue or white asbestos and the dangers that all of that poses at the moment, it does highlight the fact that we have asbestos all around us and while we’re concerned about what’s going on on the footpath, what we do on Saturday afternoon with the back shed, could be endangering our lives as well.
TS Absolutely. Two out of every three homes built post the Second World War and before 1983 contain asbestos so when you go and do home renovations, it is very very likely that you’re dealing with a fibro or an asbestos material in your home. Now, while if it sits there in situ, it’s not dangerous, if you start sanding it, you start drilling it, you start cutting it and releasing dust, then it is dangerous and if this material is then dumped without being properly disposed of, it then further exacerbates the danger. So what is important is that we have an awareness and an identification of where asbestos is in the home. Now the Asbestos Management Review which I sat on the Expert Committee which reported to the Federal Government last year recommended that on the sale or lease of homes an Asbestos Safety Certificate be issued which would identify in the house where asbestos is and what condition it is. It would also have that identification in the metre box or elsewhere so if any person was coming on the premises to do work, they would know where there was asbestos and be able to take those precautions.
CS And the Dust Diseases Board, just very quickly, is a good resource?
TS It’s a great resource for people who have been exposed to asbestos in New South Wales while working, they can register with the Dust Board and they will routinely medically examine them to see that they don’t have a disease.
CS It’s such an interesting topic at the moment, of course, with what has been discussed over the past two weeks. I thank you very much for your time and your knowledge. It’s been invaluable.
TS Thank you.
CS Thank you very much for that. Tanya Segelov, from Turner Freeman, sponsors of our Legal Matters segment and we’ll do it again next Thursday, new topic and the same people from Turner Freeman.