Mesothelioma & Dust Diseases case studies

Case study: Employer Liability for Asbestos Exposure

Often when a person is diagnosed with an asbestos related disease, they will have an extensive history of working with or using asbestos products either in the workplace or in the home.

In Australia, asbestos products were primarily manufactured by James Hardie, Wunderlich, CSR, Bradford Insulations and Bells Asbestos. These companies knew about the dangers of asbestos well before they ceased trading.

The manufacturer of the asbestos products is not the only party who may be found to be legally liable for causing a person’s asbestos related disease. If a person was exposed to asbestos in the course of their employment, their employer can also be held to be responsible for failing to provide a safe workplace environment.

This is illustrated by the case of Segelov Taylor client, Mr V*.

Mr V’s Case

Between 1970 and 1990, Mr V worked for a Sydney based company which made concrete and coloured cement. Although the company did not use asbestos as a component of its products, the factory building had an asbestos roof and contained asbestos lagged plumbing and pipes.

Mr V recalled that the roof had holes in it so that when it was windy asbestos dust and fibres fell down to the factory floor. When the pipes were pulled down to allow for new machinery to be installed, the old asbestos lagged pipes were left lying on the floor of the factory for months before being removed from the premises. In general, Mr V recalled that the factory was dusty and dirty and was only cleaned once a week.

In early 2019, almost 30 years after his last exposure to asbestos, Mr V was diagnosed with mesothelioma, a terminal cancer caused by inhaling asbestos dust and fibres.

Mr V approached Segelov Taylor following his diagnosis and we took an extensive history from Mr V in order to determine when and were he was exposed to asbestos. Mr V had never performed any home renovation work and did not recall being exposed to asbestos in the workplace, other than during his time at the concrete factory.

Although the factory where Mr V had worked had been torn down and converted into apartments in the late 1990s, Segelov Taylor were able to access council records which proved the existence of asbestos in the factory at the time of Mr V’s employment.

Unfortunately, Mr V’s health deteriorated. Shortly before he passed away Segelov Taylor commenced proceedings against Mr V’s former employer in the Dust Diseases Tribunal of NSW. His claim was continued by his estate.

The Employer’s Liability

The company that had employed Mr V had ceased trading and deregistered some years before. Segelov Taylor were able to identify the workers compensation insurer at the date of Mr V’s last employment with the company and applied to the Supreme Court of New South Wales to restore the company to the register. This enabled the company to be sued and access to the workers compensation policy.

Mr V’s former employer was liable for the development of his illness because of the long-established legal principle that employers owe a non-delegable duty to their employees to take reasonable care to avoid exposing them to unnecessary risks of injury in the course of their employment. Mr V’s employer had breached this duty by requiring Mr V to attend work at premises where he was exposed to asbestos. Mr V was therefore entitled to recover compensation even though he did not know the manufacturer of the asbestos products which caused his illness.

Settlement

Mr V claimed damages against his former employer to compensate him for his pain and suffering as a result of his mesothelioma, loss of expectation of life (calculated by reference to the number of years he would have been expected to live but for his illness), the commercial cost of gratuitous care provided by his family and legal costs.

Mr V’s claim settled at mediation without proceeding to court and Mr V’s estate received a confidential sum reflecting his losses as outlined above.

Segelov Taylor specialise in acting for persons suffering from asbestos related illnesses. Tanya Segelov has represented persons suffering from mesothelioma for over 20 years.

Segelov Taylor acts in all mesothelioma matters on a ‘no win no fee’ basis. This means you will only pay our costs if you are successful in obtaining compensation. Contact our office by phone (02) 8880 0500 or by email tanya@segelovtaylor.com.au.

*Names have been withheld for privacy reasons.

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