A unanimous decision by the NSW Court of Appeal this afternoon sets an historic precedent that will benefit current and future sufferers of asbestos related diseases, while also confirming the positive duty of care employers owe to their workers to actively identify and rectify potential risks.
Exposed to asbestos at work
George Dionysatos, 75, was exposed to airborne asbestos fibres during construction of the Sydney Opera House, where he worked as a rigger and scaffolder from 1963 to 1969.
In 2012, Mr Dionysatos — who had been a full time carer for his wife Polyxeni who suffers from dementia — died of mesothelioma, an incurable lung cancer caused by asbestos exposure.
Following his death, his son George Dionysatos continued legal action against his father’s former employer, with the Dust Diseases Tribunal awarding the family $490,142 in compensation.
Employer denied liability
The employer, Acrow Formwork & Scaffolding Pty Ltd (formerly Cyclone Double Grip Scaffolding Proprietary Ltd), appealed the decision, arguing that it wasn’t liable as it was not the head contractor, did not specify the use of asbestos, and did not control the worksite.
The Court of Appeal today rejected those arguments, enshrining a positive duty of care for all employers to actively identify and rectify potential risks to their workers, even where they may not be under their direct control.
Turner Freeman Lawyers partner who acted for the family, said the decision was profoundly important for current and future victims of asbestos related diseases.
“The Court of Appeal has today recognised that the social cost of asbestos diseases extend far beyond the actual sufferer,”. At the time of his death, Mr Dionysatos was a full time carer for his wife, with this preventable disease leaving his two children with the hardship of juggling the extensive care needs of their mother, the challenges of full time work and the needs of their own children.
“This case will have a profound impact on cases where victims provided care for children, the elderly, or the disabled, with the court ruling that Mr Dionysatos’ employer — who was responsible for him being exposed to asbestos — was liable for funding the provision of that ongoing care.”
Mr Dionysatos had always been extremely proud of his work on the Opera House, where he worked up to 16 hours a day, seven days a week, installing, removing and cleaning the scaffolding used by fellow workers to spray asbestos fire-proofing on steel beams.
Decision will benefit future sufferers
“Sadly Mr Dionysatos didn’t live to see this victory, but this decision will have a profound impact on the lives of his wife, son and daughter,” she said.
“The court’s rejection of his employer’s arguments that they were not liable because they did not control the use of asbestos, and were not aware of the risks, also confirms that an employer’s duty of care to their staff requires the proactive identification of risks, and that ignorance is no excuse.”
The matter will return to the Dust Diseases Tribunal to calculate costs for the care of Mr Dionysatos’ widow.