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Bernie was the first person to make a second claim for damages after being diagnosed with a second, different asbestos disease. Bernie suffered from severe asbestos pleural disease and asbestosis since 1999, requiring constant oxygen from October 2003. In 2007, Bernie was diagnosed with the separate disease mesothelioma. His mesothelioma was not related to his pleural disease or asbestosis.

Bernie’s fight

Bernie was exposed to asbestos as a result of his employment as a plane operator with James Hardie at its insulation factory from 1968 to 1974 working on the production of asbestos insulation blocks and pipe sections. The conditions Bernie worked in were horrendous. Bernie described the atmosphere he worked in; “I was often covered in a fine white dust. It was on my face, skin, hair and clothes. There was so much dust on my clothes that I used compressed air to get rid of the dust…. There was so much dust around, that getting dust in my eyes and nose was just a part of the routine.”

In 1999, Bernie sued James Hardie in the Dust Diseases Tribunal of New South Wales. Because he was only 53 years of age at the time Bernie, on the advice of his lawyer, Turner Freeman partner, commenced and settled his claim on a provisional damages basis. This meant that Bernie was compensated for his pleural disease and asbestosis, and was reserved his right to make a claim if he developed another asbestos disease such as mesothelioma or lung cancer. Initially, James Hardie refused to settle his claim on a provisional damages basis. Bernie stuck to his guns and his settlement was one of the first provisional damages settlements in New South Wales.

Because Bernie’s asbestosis claim settled on a provisional damages basis, Turner Freeman was able to commence a further claim in relation to his condition of mesothelioma. The further claim sought damages for his condition of mesothelioma as well as exemplary damages, that is damages designed to punish James Hardie for its behaviour in grossly exposing him to asbestos dust when it knew of the dangers in doing so and its conduct in restructuring the company in 2001 to set up a compensation fund that was grossly inadequate to compensate future victims. James Hardie tried to have the claim for exemplary damages struck out. The Dust Diseases Tribunal held that such a claim was available and this was upheld by the New South Wales Court of Appeal.

Bernie’s health deteriorated and the Dust Diseases Tribunal expedited his hearing, taking his evidence from his bedside at Concord Hospital. Bernie’s case settled for a confidential sum days before his death.

Over the years, Bernie watched many of his friends and colleagues from James Hardie, including his own brother, die of asbestos diseases. As a result, Bernie became a tireless campaigner for the rights of asbestos victims and workers in general, particularly during the James Hardie Commission of Inquiry and the fight to ensure that all James Hardie victims receive fair compensation. Bernie became the public face of asbestos victims during the James Hardie Inquiry and was the victims’ representative in negotiations with James Hardie. Bernie’s fearless passion and dedication ensured that James Hardie victims’ right to compensation has been guaranteed for the next 40 years and that the plight of asbestos victims has remained in the forefront of politicians’ minds and the media. Bernie’s last fight was to ensure that Alimta chemotherapy treatment was put on the PBS and therefore available to all mesothelioma sufferers.

Bernie’s claim highlights the importance of settling claims for benign asbestos diseases on a provisional damages basis. All New South Wales plaintiffs have a right to settle their claims on a provisional damages basis. If you settle your claim on a full and final damages basis rather than a provisional damages basis then you can never make another claim, even if you develop mesothelioma or lung cancer. The difference between a settlement on a provisional damages basis and a full and final damages basis is normally about $10,000 to $20,000, that is, if you settle your claim on a full and final basis rather than a provisional damages basis you will receive an extra $10,000 to $20,000 now. You will, however, give up the right to claim further damages in the vicinity of $100,000 to $250,000 in the event you contract mesothelioma or lung cancer.

A state funeral was held for Bernie on 5 December. It was a fitting farewell for a courageous man and a fighter who fought James Hardie on behalf of all victims up to his dying breath. His passion, determination and humour will be greatly missed by all who knew him, particularly his friends at Turner Freeman.

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