It is a basic principle of many adversarial legal systems that in civil matters, they who assert must prove. This rule may protect the integrity of the legal system by ensuring frivolous claims are discouraged but presents a unique difficulty for victims of dust diseases, who are more often than not, exposed to asbestos many years ago.
Although dust diseases such as mesothelioma are swift and devastating, the law is nevertheless ruthless and demanding. In order to bring a claim, plaintiffs are required to recount their histories in extraordinary detail, hunt down witnesses and in some circumstances, gather what government departments appear to consider ‘ancient’ evidence.
These investigations, whilst tedious, are necessary because a plaintiff must be able to identify a defendant and prove the following on the balance of probabilities:
- That the defendant owed a duty of care.
- That the defendant breached their duty of care by failing to take any or all steps to ensure that it satisfied its duty of care.
- That the risk of injury from inhaling asbestos dust was reasonably foreseeable by the defendant at the time that the dust was inhaled.
- That the defendant’s negligence in exposing the plaintiff to asbestos dust made a “material contribution” to the development of mesothelioma. This is also known as causation.
- That the plaintiff has suffered damage as a consequence of that breach.
As one can see, the process for bringing a common law claim has the potential to be onerous, tiring and completely overwhelming but more often than not, the seemingly difficult hurdles can be overcome.
A recent example however has highlighted the potentially devastating denial of a mesothelioma victim’s right to compensation because crucial evidence has been lawfully destroyed by the government in accordance with New South Wales document retention laws.
To illustrate, imagine the following scenario:
- A young person, not much older than thirty has developed mesothelioma;
- Their prognosis is dire, and doctors have advised that they have 18 months to live;
- The current medical evidence suggests that they were exposed to asbestos at a very early age, most likely during the period that they attended primary school;
- Due to the young age at the time of exposure, they cannot remember when or where they could have been exposed to asbestos however they do recall that parts of their primary school and their housing commission home were under construction when they were young.
As these facts would point to the exposure occurring at the school or at the home, the person would need to prove that they were exposed to asbestos at these locations during those young years of their life if they were to be able to make a claim for an award of damages for their substantial injuries.
To assist this person, the engaged lawyers undertake extensive investigations and contact the primary school, local council and numerous other government authorities looking for any documents which relate to the presence of asbestos in the school or home and any documents pertaining to building works carried out at those locations.
Just when the lawyers think they might have one lead, for example, the NSW Department of Education has conducted a state-wide asbestos audit which demonstrates significant levels of asbestos in buildings of various schools around NSW, they receive responses from the various government departments advising that they do not currently hold any of the requested documentation because those documents are over the age of seven years and have been destroyed in compliance with NSW document retention laws.
Time is running out and the person’s predicament is now this – without details of the location, time and method of exposure how can they identify a responsible party and how can they prove that that party did not take all reasonable steps to prevent it? In fact, how can they even prove exposure at these sites at all given the destruction of all potentially relevant evidence? Unfortunately, being unable to prove the particulars of their exposure is a fundamental flaw in any such case and their lawyers can only provide limited assistance because proceedings cannot be commenced without a defendant.
This scenario demonstrates the importance of evidence in mesothelioma cases, where the injured person is unaware of the injury for decades. As potentially frustrating and unjust the result may be, without proof, there simply is no case.
It also begs two questions:
- Should there be a national register which identifies where asbestos has been used as well as details of building and maintenance work at public premises such as schools, public housing, hospitals etc?
- Is a maximum compulsory data retention period of seven years really long enough? Should NSW laws be reformed?