In an important case in relation to the issues of foreseeability of risk of injury and warnings, the NSW Court of Appeal has found that James Hardie & Coy Pty Ltd should have known from at least 1953 of the dangers posed by asbestos to users in industry.
Mr John Booth instructed Turner Freeman partner Gerard McMahon following his diagnosis with mesothelioma. Mr Booth had been exposed to asbestos dust and fibre released from brake linings in the course of his employment as a brake mechanic.
Mr Booth succeeded in proceedings in the Dust Diseases Tribunal of New South Wales and recovered damages in the sum of $326,000.
James Hardie (now known as Amaca) and its brake lining subsidiary appealed the decision arguing that the injury was not foreseeable at relevant times, and that there was no reasonable steps they could have taken that would have avoided the injury.
Three Court of Appeal judges rejected the appeal, finding that James Hardie management deliberately concealed the risks because they were “concerned that a realistic warning might have a significant, if not dramatic, effect on the market for its products”.
Dust Diseases Tribunal decision
Court of Appeal decision
Daily Telegraph (11/12/2010)