This financial year, the average claim settlement in Australia for James Hardie victims was $231,000. This $12,000 increase is largely a result of an increase in mesothelioma claims in Australia, from 456 to 542 claims over 12 months.

James Hardie is now expected to pay $117 million extra to a special victims’ fund. This brings the company’s asbestos liability to approximately $1.7 billion.

The decision upheld last year’s Adelaide District Court ruling, which awarded 82-year-old asbestosis sufferer William Parker $52,124.93 – plus $20,000 in punitive damages – for working in BHP’s Whyalla shipyards between 1971 and 1972.

The landmark victory is the first successful case (on appeal) under the South Australian Dust Diseases Act to award punitive damages against a company for ignoring the health hazards of asbestos exposure, (such as mesothelioma).

The majority of the Full Court of the Supreme Court of South Australia handed its decision down on Monday, saying that the risk to Mr Parker’s health was “foreseeable” and that BHP had failed to take reasonable steps in order to protect him, such as testing for asbestos or providing workers with protective marks and equipment.

The judgment stated that Mr Parker’s asbestosis was a result of “the systemic failure by BHP to make its workplace safe… by 1971 it was known that some exposure to asbestos could result in conditions which were incurable, irreversible and possibly fatal.”

The finding is expected to impact other South Australian asbestos compensation claims that are currently before the Courts, and possibly those in other Australian states such as New South Wales and Victoria, as well as future claims.

A number of years ago, the South Australian parliament enacted legislation to assist South Australia asbestos compensation claims. Since this time, many claims for asbestosis compensation and mesothelioma compensation have been made.

Rod Fraser has been awarded an undisclosed compensation amount by WorkCover Queensland after his brother Andrew died from mesothelioma followiong exposure to asbestos while working at the Prosperine Sugar Mill, Queensland, for six months in 1982.

Queensland Industrial Magistrates Court ruled that Mr Fraser and his wife and children were financially supported by his late brother, a finding that has been deemed ‘unusual’ by the plaintiff’s lawyer, as brothers are not usually deemed to be dependents.

The sugar industry is seeing an increasing number of people claiming mesothelioma compensation for exposure to asbestos, a dangerous substance that was often used as an insulator in sugar mills until the 1980s.

This is because the usual latency period between when someone is exposed to asbestos and diagnosis of an asbestos-related disease such as mesothelioma can be as high as 40 years. As a result, the number of asbestos sufferers is expected to peak in around 2025.

Cases of mesothelioma and other asbestos-related compensation have been brought in all Australian states including New South Wales, South Australia and Victoria.

The Commission had recommended the removal of a defence that allowed Defendants such as James Hardie to off set or reduce asbestos compensation payments to widows in dependency claims.

Further, the Commission had recommended pain and suffering compensation survive if asbestos court proceedings were commenced within 12 months of a person dying from an asbestos condition such as mesothelioma.

Asbestos and mesothelioma compensation claims in South Australia, and asbestos and mesothelioma compensation claims in Victoria, do not allow a Defendant to put up the Defence to a claim that results in an offset to a dependency asbestos claim.

It is hoped the New South Wales Government will sit down with representatives of James Hardie to try and nut out a new deal to ensure asbestos compensation reforms are made to assist those affected by asbestos conditions.

The Minister for Workplace Relations announced on 2 May 2012 that the scheme has paid out almost $3 million to 8 separate applicants.

The scheme has helped persons suffering asbestos related conditions such as mesothelioma obtain compensation.

Compensation for those suffering mesothelioma has been made easier by this “no fault” compensation scheme.

In April 2012, an appeal by James Hardie to the High Court of Australia on the level of this compensation was abandoned just hours before the High Court was to determine this issue.

This award, and the decision by James Hardie to abandon their High Court appeal, may well lead to an increase in the compensation paid to sufferers of asbestos conditions, and in particular those suffering mesothelioma.

An April 2012 decision of the Court of Appeal of the United Kingdom upheld a previous ruling that the parent company, Cape PLC, was liable for his employer’s actions. He was exposed to asbestos whilst employed by Cape Building Products Limited.

This is a significant ruling. The Court stated that
“this is one of the first cases in which an employee has established at trial liability on the part of his employer’s parent company”.

Asbestos compensation in Australia, including compensation for mesothelioma in Australia, include asbestos litigation involving similar situations as that above.

Lawyers for those seeking such compensation are furious that their clients may miss out on compensation as a result of the delay.

In Australia, various state laws allow persons suffering asbestos conditions to pursue compensation quickly. Conditions like mesothelioma and severe asbestosis can often deteriorate rapidly and such laws often allow sufferers peace of mind in a relatively short period of time.

This legislation has a specific objective to “ensure residents of [South Australia] who claim rights of action for, or in relation to, dust diseases, have access to procedures that are expeditions and unencumbered by unnecessary formalities of an evidentiary or procedural kind.” In plain English, this objective means that legal claims are to be dealt with as quickly as possible and that Court formalities should not be the reason why claims slow down. The legislation also contains a number of other provisions to assist those pursue their rights.

Other South Australian legislation preserves the bulk of the value of the claim even if the sufferer of mesothelioma dies prior to their claim being settled or determined as long as proceedings were commenced in the mesothelioma sufferers lifetime. New South Wales, Victoria, Queensland all have similar legislation.

So it is critical that if someone is suffering mesothelioma, proceedings are commenced on their behalf before their death in order to preserve a large component of the claim.

We have experienced some tragic stories when, for example, a widow rings us up and says something like “My husband passed away from mesothelioma last week. He was too sick to make a claim but told me to go for it after he died”. In such circumstances, often the widow has “lost” somewhere in the order of $100,000 – $200,000 simply because proceedings were not commenced prior to her husbands death. This scenario is terrible but it does happen all too often. So it is most important that if you are diagnosed with mesothelioma, irrespective of how “well” or sick you are, get legal advice immediately.