Landmark settlement for asbestos exposure
Turner Freeman partner recently obtained a landmark settlement on behalf of Stephen Wickham, a mesothelioma victim, against Amaca Pty Limited (formerly James Hardie & Coy Pty Limited). Mr Wickham was unknowingly exposed to asbestos dust when performing home renovations on his home in Perth in 1994. At the time Mr Wickham had recently emigrated from England, and had been told of the dangers of exposure to asbestos dust in his home country. He did not know however that all fibro sheets manufactured in Australia prior to 1983 contained asbestos. Mr Wickham therefore performed home improvements on his home including removing corrugated fibro sheets from his garage and replacing part of a fence made from corrugated fibro sheets, exposing himself to asbestos dust. Mr Wickham was diagnosed with the deadly asbestos cancer, mesothelioma, 19 years later.
Mr Wickham bought a claim against James Hardie alleging that James Hardie should have warned him of the dangers of such home handyman work in relation to their product. Specifically, he alleged that James Hardie should have run a public awareness campaign educating the public in relation to how to identify their products which contain asbestos, and how to handle the products safety. Indeed, the “third wave” of asbestos victims are the home handyman performing renovations on their own home. This class of people are still at risk of exposure to asbestos dust, and contracting asbestos related diseases, as a result of this type of work. Mr Wickham therefore argued that James Hardie had a duty to advise the public at large in relation to such dangers.
Thousands of documents produced by James Hardie were to be tendered in the proceedings. Some of the documents demonstrated that James Hardie was spending large sums of money on advertising campaigns in the late 1970s and early 1980s including sponsoring the “Life Be In It” campaign. Mr Wickham argued that the documents showed that James Hardie had the resources and the marketing expertise to run the type of public awareness campaign that James Hardie ought to have run. Mr Wickham argued that had James Hardie run such a campaign, he would never have carried the renovations which resulted in his contraction of mesothelioma.
In addition to the public awareness argument, Mr Wickham called evidence from one of James Hardie’s previous employees which indicated that James Hardie could have made an asbestos free product from the 1960s had it tried. Mr Wickham alleged that had James Hardie attempted to produce an asbestos free product in the 1960s, he would never have been exposed to asbestos dust in the first place.
Mr Wickham’s case ran for two days in the Dust Diseases Tribunal of NSW. Over these two days a large amount of evidence was tendered and called before the Court which now can be relied upon by future claimants. This evidence also includes testimony given by David McFarlane, one of James Hardie’s former managing directors, who described the dangers of asbestos as “a media beat up”.
After two days of hearing, the case settled for a confidential sum. Despite the fact that no judgment was delivered, the evidence called in the case will be extremely beneficial to the “third wave” of asbestos victims, being the home renovator. It is these types of cases which reinforce the need to educate the public in relation to the dangers of exposure to asbestos so that renovators such as Mr Wickham can safely avoid exposure to asbestos dust.