In a landmark decision that could have significant implications for many mesothelioma sufferers and their families an Australian court has ruled that white asbestos can cause mesothelioma.
John William Booth, 73, of Pottsville in NSW sued James Hardie, trading as Amaca, after contracting the asbestos-related cancer while working as a mechanic on asbestos brake linings.
The NSW Dust Diseases Tribunal awarded Mr Booth $326,640 in damages in 2010 but James Hardie appealed the ruling on 17 grounds, including that white asbestos, or chrysotile, was “highly unlikely to cause mesothelioma”; that the company could not have foreseen the risk to Mr Booth; and that there were no reasonable steps it could have taken to avoid the injury.
In December 2010 the NSW Court of Appeal unanimously rejected the appeal, confirming for the first time in an Australian court that exposure to white asbestos can cause the terminal cancer.
The appeal judges, led by Justice Margaret Beazley, ruled that the risks to health from white asbestos were foreseeable, finding that when Mr Booth began his apprenticeship in 1953, the risk from ongoing exposure to white asbestos was already well known to the company.
The judges found that James Hardie 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”.
However, in a last-ditch legal bid, James Hardie has applied for leave to appeal to the High Court.
Mr Booth’s lawyer, Gerard McMahon of Turner Freeman, says the outcome of the High Court bid in June 2011 will be closely watched.
“I know a number of lawyers with cases of mesothelioma from brake lining. This decision could pave the way for much easier compensation for their clients,” he said.
Nevertheless, the rulings made thus far in the Booth case were, he said, “highly significant”.
“The decision that a person working with a Hardie product faced a foreseeable risk of injury is a big finding because they (James Hardie) have often kept the foreseeability card up their sleeves,” he said.
“The only frank admission (from James Hardie) about knowledge of the risks from asbestos is that by about 1966 they knew there was a risk from being exposed to significant quantities of asbestos.
“The other important aspect of the case is the ruling that confirms that the white asbestos which James Hardie used in its brake linings causes mesothelioma, which always leads to death,” he said. “In the past there has been this argument that white asbestos is the safe form of asbestos, and that is not the case.”
Four medical experts, including Professor Douglas Henderson and Professor Bill Musk, testified at the Dust Diseases Tribunal hearing that “all exposure to asbestos within an acceptable latency period materially contributes to the mesothelioma in a particular individual, and that Mr Booth’s exposure to chrysotile in the course of his work as a mechanic materially contributed to the cause of his disease”.
The tribunal also received data from the Australian Mesothelioma Register that indicated an increased risk of mesothelioma among brake mechanics: the 2002 AMR report listed 59 cases of mesothelioma for the exposure category “made/repaired brake linings (single exposure only)” and another 19 cases for the same class of exposure with multiple exposure.
Diagnosed with mesothelioma in 2008, Mr Booth was given eight months to live, but has survived after extensive chemotherapy. He told the tribunal that his pain was “very severe” and “like a knife in his chest”.
Mr McMahon said Mr Booth was again undergoing chemotherapy treatment and was “doing well under the circumstances”.
To read the NSW Dust Diseases Tribunal judgement, click here.
To read the NSW Court of Appeal decision in its entirety, click here.
By Catherine Madden