Asbestos and Mesothelioma: Cases and Claims

Recent news that asbestos debris has been found in a North Brisbane suburban creek has, no doubt, caused great concern for residents and locals alike.

The asbestos debris, which is the subject of the concern, came from the Wunderlich ‘Durasbestos’ fibre cement factory, which operated from 1937 to 1983. The news reports that at least 20 cancer cases are estimated to be linked to this factory, along with the former James Hardie factory at Newstead.

A large amount of asbestos remains within the general community due to its broad use in industrial application and manufacture. Asbestos was commonly used and found in the following:

  • Roofing, walls and vinyl floor tiles
  • lagging for insulation and fire proofing materials
  • stoves, heaters and radiators
  • brakes and clutch linings
  • plaster and paints
  • high temperature gaskets and electric wiring insulation
  • sealant on windows and door seals on ovens
  • electric hot water services and electrical switchboards.

The removal of asbestos materials, from both domestic and commercial buildings, is thankfully heavily regulated in Queensland, as it is in other states. Asbestos products already ‘in situ’ (installed and undisturbed) are within the law. However, when removed the occupier must ensure proper safety procedures are followed. Saying that, it is still not uncommon for the building industry, including some asbestos removalists, to be dangerously lax in their efforts to minimise exposures through these processes. This is even more relevant for home renovators, who either do not recognise products as containing asbestos, or who are under the misbelief that there is such a thing as ‘safe asbestos’. There isn’t.

When asbestos is disturbed, it forms a dust which is actually many tiny fibres. If it is left alone, it is generally harmless.

For example, sealed Asbestos in lining or in wall boards is not a danger, but if you pull these down, drill or hammer into them you will create dust full of dangerous fibres. The dust, when breathed in, can accumulate in the lung. This can cause scarring, which can lead to health problems such as; the benign conditions of pleural plaques and asbestosis. Asbestos fibres can also become lodged in the lung’s alveoli for many years. Malignancies can develop over time, resulting in lung cancer and mesothelioma.

It’s important to note that most people exposed to asbestos will not develop an asbestos related disease.

It can however, take a good 30 to 40 years after exposure for any asbestos related disease to become symptomatic. There is often no rhyme or reason as to why some people exposed are unaffected, and some who experience only a minimal or ‘low dose’ exposure develop mesothelioma many years later.

There is usually a delay or ‘latency period’ from the time of exposure to the development of symptoms, often as great as 40 years. That means that any exposure NOW will be virtually undetectable by Doctors or Radiological evidence, immediately following exposure. This unfortunately does not provide any immediate piece of mind.

The only thing that can be immediately done, is to maintain accurate records of the following:-

  1. Where did the exposure occur?
  2. When did the exposure occur?
  3. How did the exposure occur?
  4. Were there any identifiable features of the material to which you were exposed? i.e. label’s, product stamps or specific textures of the product (as is often the case with building materials)
There has been an increase in asbestos awareness over recent years, driving home the still-present danger of Asbestos in QLD and around Australia.

However, a major concern is what people can do legally, after exposure or once symptoms have been identified. Often the business or installer responsible for the Asbestos are no longer around. The tremendous latency period of the related diseases can leave the sufferers confused as to their legal rights. What are their legal remedies?

Plaintiff Personal Injury practitioners have, for many years, ran and settled cases for those people exposed to asbestos, arising from both the Gaythorne and Newstead factories. The level of exposure for the factory workers, was often as high as those who worked in the asbestos mines of Wittenoom in WA and Woodsreef near Barraba in NSW.

The usual plaintiffs arising from exposures caused by the factories, are most commonly the factory workers themselves. This includes those doing the labouring jobs, as well as the administration staff and even the delivery drivers.

Out of court settlements in Queensland have also occurred for plaintiffs who were not factory workers, but worked in neighbouring businesses. Those who had to walk past the factories on a daily basis on their way to work. The level of exposure to asbestos dust arising from the factories was so extreme, that it affected passer-by’s and residents of the surrounding suburbs.

Until March 2010, plaintiffs had 12 months, from the date of diagnosis of a dust related injury, to institute proceedings in court. If they failed to do so within that time period, their rights were often lost. Now, there is no limitation period relating to such common law claims, however proceedings must be instituted within a person’s lifetime. Should proceedings not be instituted prior to death, the plaintiff’s estate will lose its right to recover general damages and of course, future losses.

The right to recover compensation in Qld arising from asbestos exposure is dealt with through either a statutory ‘no fault’ scheme, or through the traditional fault-based system or common law claim.

Certainly workers in the factories have rights to recover compensation through the WorkCover scheme or the common law process. The appropriate forum to recover compensation is often determined by the diagnosis itself and therefore the level of compensation of damages that follows. For example, sufferers of the benign condition asbestosis are often better served by pursuing common law damages, as opposed to seeking a lump sum through the WorkCover scheme. However, past employees of the factories, that develop mesothelioma, would ordinarily be best served by way of pursuing a lump sum through the WorkCover scheme.

What flows from the recent findings of asbestos debris in a local creek is potential liability for the Brisbane City Council, or those responsible for the removal of the asbestos materials from the Gaythorne factory, at the time of the factories closure. If it was the responsibility of council or some other entity to safely remove and dispose of the asbestos debris, then those entities, in addition to the occupiers of the factories themselves, could be considered negligent. This may result in them being joined as a defendant to future actions.

Carl Hughes, our Senior Associate, has spent the better part of a decade fighting for the rights of workers, specialising in Asbestos and Mesothelioma cases. He understands the devastation that these cases can wreak on lives, and the confusion of how a sufferer can claim compensation.

If you, a friend or family member have been affected by Asbestos, or you would like to have a confidential discussion about your claim, you can call Carl on (07) 3009 7009.

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