BlogMesothelioma & Dust DiseasesTanya Segelov

Court of Appeal deals with James Hardie trying to avoid liability to migrants

After WW2, many people came to work and live in Australia from the UK and other European countries. Many of those had worked and were exposed to asbestos before coming to Australia. After settling in Australia, they had further exposure to asbestos and, many years later, have developed an asbestos disease such as mesothelioma or asbestosis.

Mesothelioma (which is a cancer of the lining of lung caused by exposure to asbestos) is what in law is called an indivisible injury. Expert evidence has been accepted by the courts that all exposure to asbestos contributes to the development of mesothelioma. This means that you do not have to sue for all your exposure to asbestos, provided that the exposure to asbestos you sue on has made a material contribution to the development of your mesothelioma. In law a material contribution is anything that is not trivial. For most people this means that they sue only in relation to their exposure to asbestos in Australia. If most of your exposure to asbestos was overseas, then you may need to make a claim in the country where the exposure occurred. If the exposure occurred in the UK, then we can assist you to make a claim in the UK.

Asbestosis, unlike mesothelioma, is a divisible injury. This means to recover all of your damages you need to sue for all of your exposure to asbestos. If you had exposure to asbestos both in Australia and overseas to recover all your damages you may need to bring two claims, one in Australia and one overseas. In the claim in Australia you will recover for the damage caused by your exposure to asbestos in Australia. Again, if your exposure was in the UK, we can assist you to make a claim in relation to the part of your exposure in the UK.

Despite mesothelioma being an indivisible injury, an issue has been raised in relation to claims where there is exposure to asbestos in Australia from products manufactured by James Hardie. James Hardie is asserting that the agreement it reached with the NSW Government to set up a Trust (The Asbestos Injuries Compensation Fund) to pay claims against James Hardie requires it to deduct from any verdict the proportion that relates to exposure to asbestos overseas. James Hardie says it must do this even where a claim is brought in Australia only for exposure to asbestos in Australia.

Segelov Taylor client, John Francis Talifero was born in England. He had exposure to asbestos in England whilst serving in the British Navy and while working in England before he came to Australia in 1971. From 1971 to 1995 he worked as a painter and during this period had exposure to asbestos while sanding, cutting and drilling James Hardie fibro sheets. Mr Talifero contracted mesothelioma and brought a claim against James company in the Dust Diseases Tribunal of NSW. The claim related only to his exposure to asbestos in Australia. The Dust Diseases Tribunal found that Mr Talifero’s mesothelioma was caused by his exposure to asbestos from James Hardie’s products in Australia and awarded him damages in the sum of $560,048.00.

Despite the judgment of the court, James Hardie only paid 52% of the judgment on the basis that the Trustees of the Asbestos Injury Compensation Fund determined that a deduction of 48% should be made to reflect Mr Talifero’s exposure to asbestos while in the British Navy.

Mr Talifero’s estate (Mr Talifero having died on the morning of his hearing) argued that the terms of the agreement not require a deduction where the claim was brought solely in relation to exposure to asbestos in Australia. The Asbestos Injuries Compensation Fund applied for advice from the Supreme Court of NSW as to how the agreement should be interpreted. Initially, Justice Sackar, of the Supreme Court provided advice to the effect that the Asbestos Injuries Compensation Fund was justified in only paying 52% of the damages.

On our advice the estate of the late Mr Talifero appealed the decision to the NSW Court of Appeal and, on 11 October 2018, the NSW Court of Appeal allowed the appeal and advised the Asbestos Injuries Compensation Fund Limited to pay 100% of the damages awarded by the Dust Diseases Tribunal.

The Asbestos Injuries Compensation Fund Limited has advised that it will now seek leave to appeal this decision to the High Court.

Segelov Taylor Lawyers will continue to represent the estate of the late Mr Talifero to ensure that his family receives the full damages awarded to him.

Mr Talifero’s case is of enormous significance for all persons who are exposed to asbestos both overseas and in Australia who sue James Hardie. The decision in the NSW Court of Appeal was discussed in the Sydney Morning Herald and elsewhere.

If you have any questions about your exposure to asbestos please contact Tanya Segelov on 8880 0500 or tanya@segelovtaylor.com.au.

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