Record $3m asbestos payout in precedent-setting victory for home renovator
Turner Freeman Partner, Annie Hoffman, brought a claim for Mathew Werfel, 42 against James Hardie in 2017 after he was diagnosed with mesothelioma, a deadly cancer caused only by exposure to asbestos.
Mr Werfel was first exposed to asbestos as a teenager, while working for a fencing contractor after leaving school. He was subsequently exposed during home renovations, including when he sanded and painted the walls of his first home in Adelaide’s northern suburbs, which he didn’t realise were constructed from asbestos cement sheets.
Mathew was repeatedly exposed to asbestos during this fencing work and home renovations between the mid-90’s and early 2000s. He was painting the exterior of his house, in particular the eaves of the house, which required sanding and so it created a lot of dust. Dust was all over Mathew’s hair and clothes.
Like many other asbestos victims, Mathew sued James Hardie for his illness.
The South Australian Employment Tribunal judgment has significant implications for “third wave” asbestos victims, those exposed to in-situ asbestos products in homes, workplaces, and the community. The Tribunal found that James Hardie had failed to properly warn the public about the ongoing risks posed by their asbestos cement products.
In addition to awarding compensation for pain and suffering, future economic loss, medical expenses, and loss of life expectancy, Judge Leonie Farrell imposed exemplary damages on the company, to issue a deterrent for corporations that put commercial gain ahead of people’s lives. Judge Farrell found that James Hardie breached its duty of care to a large class of Australians, including Mr Werfel.
This case confirms that James Hardie’s duty of care doesn’t end when it sold its products, it continues even decades later as tradespeople, homeowners, and others are exposed to those building materials in the Australian environment.
The decision to also award exemplary damages — an additional punishment aimed at sending a message of deterrence — highlights the court’s view that James Hardie has an ongoing duty of care to properly warn the public about the dangers of in-situ asbestos products.