Asbestos law

TurnerFreeman

Turner

Lawyers

Freeman

G R E A T P E O P L E . G R E A T R E S U L T S . G R E A T V A L U E .

Dust Diseases Compensation NSW

Contents

Dust diseases compensation .......................................4

Referral and support organisations ..............................4

Is dust dangerous?.......................................................5

How to make a claim....................................................6

Avenues of compensation in NSW ................................7

Commonwealth Employees ..........................................8

Asbestos Compensation in the UK................................8

Some Turner Freeman Landmarks ..............................15

The people at Turner Freeman ...................................17

Exposure Registration Form........................................18

Turner Freeman offices...............................................19

T

Armando Gardiman

Managing Partner

Dust Diseases Litigation

urner Freeman has a proud record of successfully

completing more dust diseases compensation claims than

any other law firm in Australia.

This is the eighth edition of the Dust Diseases Compensation

brochure. It reflects the increasing incidence of asbestos and

other dust diseases in our Australian community particularly

among third wave victims, typically home renovators and

bystanders.

Our essential message, however, remains the same. It is very

important that you seek legal advice quickly after diagnosis

of any dust related medical condition before you make a

compensation claim.

Since our last edition, we have increased the number of

offices where specialist dust diseases compensation advice

is available. Our lawyers are now able to meet with you in

our offices at Parramatta, Newcastle, Gloucester, Penrith,

Wollongong, Sydney, Campbelltown, Brisbane, Cairns,

Ipswich, Logan City, Maroochydore, Southport, Toowoomba,

Adelaide and Perth.

If you are too ill to travel to one of our offices, we will visit

you at home or in hospital.

We continue the tradition of maintaining links with law firms

in England, Scotland, Northern Ireland, Wales, New Zealand,

Canada and the United States. If you were exposed to dust in

these places and are now living in Australia, we can help you

to make a claim.

It is important that you know we continue to operate on a “no

win-no fee” basis and that unless we gain compensation for

you, we will not charge for our work.

I hope you enjoy reading our brochure and that you find it

useful and interesting.

T

Armando Gardiman

Managing Partner

Dust Diseases Litigation

urner Freeman has a proud record of successfully

completing more dust diseases compensation claims than

any other law firm in Australia.

This is the eighth edition of the Dust Diseases Compensation

brochure. It reflects the increasing incidence of asbestos and

other dust diseases in our Australian community particularly

among third wave victims, typically home renovators and

bystanders.

Our essential message, however, remains the same. It is very

important that you seek legal advice quickly after diagnosis

of any dust related medical condition before you make a

compensation claim.

Since our last edition, we have increased the number of

offices where specialist dust diseases compensation advice

is available. Our lawyers are now able to meet with you in

our offices at Parramatta, Newcastle, Gloucester, Penrith,

Wollongong, Sydney, Campbelltown, Brisbane, Cairns,

Ipswich, Logan City, Maroochydore, Southport, Toowoomba,

Adelaide and Perth.

If you are too ill to travel to one of our offices, we will visit

you at home or in hospital.

We continue the tradition of maintaining links with law firms

in England, Scotland, Northern Ireland, Wales, New Zealand,

Canada and the United States. If you were exposed to dust in

these places and are now living in Australia, we can help you

to make a claim.

It is important that you know we continue to operate on a “no

win-no fee” basis and that unless we gain compensation for

you, we will not charge for our work.

I hope you enjoy reading our brochure and that you find it

useful and interesting.

Turner

Lawyers

Freeman

“

”

Turner Freeman has the largest and the most experienced dust diseases practice in Australia. For morethan 30 years Turner Freeman has represented thousands of victims of dust disease in Australian andoverseas courts. We have continued to expand the nature of claims filed on behalf of victims sufferingfrom dust disease and we have litigated numerous test cases that have established important legalprecedents changing the prospects for people with dust diseases.

Dust diseases compensation

Asbestos Diseases Foundation of Australia(ADFA Inc)

Asbestos Victims Association of SA Inc

Asbestosis & Mesothelioma Support Group

Whyalla Asbestos Victims SupportGroup

Queensland Asbestos Related DiseasesSupport Society Inc

Cancer Council New South Wales

Gippsland Asbestos RelatedDiseases Support Inc

Australian Manufacturing Workers’Union

Newcastle Trades Hall Council

Suite 3, Ground FloorAMWU Building133–137 Parramatta RoadGranville NSW 2142Tel: 02 9637 8759Fax: 02 9897 3259Toll Free: 1800 006 196www.adfa.org.auContact: Mr Barry RobsonMobile: 0407 235 685Email: [email protected]

Level 3, 60 Waymouth StreetAdelaide SA 5000Tel: 08 8212 6008Fax: 08 8212 7008Email: [email protected]: Terry Millerwww.avasa.asn.au

PO Box 1080Coolangatta Qld 4225Tel: 07 5599 7876Email: [email protected]

Shop 5, 87b–89 Essington Lewis AvenueWhyalla Playford SA 5600Tel: 08 8645 0555Fax: 08 8645 0555Email: [email protected]

16 Campbell StreetBowen Hills Qld 4006Toll Free: 1800 776 412Fax: 07 3666 0335Email: [email protected]

153 Dowling StreetWoolloomooloo NSW 2011Tel: 02 9334 1900Fax: 02 9063 4101Email: [email protected]

41 Monash RoadNewborough Vic 3825Tel: 03 5127 7744Fax: 03 5126 0354Email: [email protected]@wideband.net.au

133–137 Parramatta RdGranville NSW 2142Contact: Dave HenryTel: 02 9897 2011Fax: 02 9897 4257

Suite 1, Level 1Devonshire House406–408 King StreetNewcastle West NSW 2302Contact: Gary KennedyTel: 02 4929 1162Fax: 02 4926 [email protected]

Important victories

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The first product liability claim against an asbestosmanufacturer, James Hardie & Coy Pty Limited inAustralia.

The first verdict on behalf of a child born atWittenoom and exposed to blue asbestos dust in thetownship.

The first verdict on behalf of a victim who wasworking with brake lining materials as a fitter in anengineering firm.

A succession of successful judgments for workersexposed to asbestos and suffering from lung cancer.

The first verdict on behalf of a waterside workersuffering from asbestos disease.

The first verdict on behalf of a victim who contractedmesothelioma from doing home renovations.

The first successful compensation case for a man whocontracted lung cancer as a result of workplaceexposure to chromate.

Turner Freeman has the experience and skill toprovide the specialised legal services needed byvictims of dust disease throughout Australia andoverseas.

We represent members of the Asbestos DiseasesFoundation of Australia, the Australian ManufacturingWorkers’ Union and the Retired Maritime Union ofAustralia.

Turner Freeman represented the coalition of unionsand asbestos support groups at the James HardieInquiry.

Dust Diseases Compensation4 It is important to seek legal advice before you make any claim.Turner Freeman works on a no win-no fee basis for dust diseases claims. Unless you recover compensation you will not be charged for our work.

REFERRAL AND SUPPORT ORGANISATIONS

Is dust dangerous?Yes, very dangerous. A wide variety of dustsproduce disease, with the most serious dustdiseases being those caused by exposure toasbestos and silica.

The most significant diseases caused by exposure todust are

AluminosisAsbestosisAsbestos induced carcinomaAsbestos related pleural diseaseBagassosisBerylliosisByssinosisCoal dust pneumoconiosisCryptococcosisFarmers’ lungHard metal pneumoconiosisMesotheliomaOccupational asthmaSilicosisSilico-tuberculosisTalcosis.

Asbestosis is a scarring of the spongy part of the lung. Itstiffens the lungs and makes them less able to transferoxygen. The immediate effect is breathlessness usuallywith exertion, but later, even minimal amounts ofexercise can cause breathlessness. The disease tends toprogress and severe cases result in death fromrespiratory failure.

Asbestos related pleural disease is a process thatusually begins with an inflammation of the pleura thatleads to fluid collecting in the space between the lungand the chest wall. This is also commonly referred to asa benign asbestos related pleural effusion.

The disease normally manifests sooner after asbestosexposure than mesothelioma and is quite different frommesothelioma. Symptoms include shortness of breathand discomfort. When the pleural fluid eventually goesaway, the pleura on the lung may become thickenedwhich can compress the lung.

This is often referred to as bronchogenic carcinoma. It isrecognised as being one of the most commoncomplications of asbestos exposure and it invariablycauses death.

It is not necessary to have asbestosis in order toattribute bronchogenic carcinoma to asbestos exposure.The attribution can be made if there has been sufficientexposure to asbestos dust even if the person was also asmoker.

Pleural mesothelioma is a malignant tumour thatdevelops in the pleura. The pleura is a very thin layer oftissue that wraps itself around the lung and lines theinside of the chest wall. Symptoms include a rapid andsubstantial build up of fluid, pain and breathlessness.

The abdomen is lined with a similar type of tissue to thepleura. The tissue is called the peritoneum. The first signof a peritoneal mesothelioma is usually swelling of theabdomen. Apart from a substantial build up of fluid thedisease causes discomfort and/or pain and obviousinterference with abdominal functions.

Asbestos dust has been implicated in cases of renal cellcarcinoma and also in cases of cancer of the larynx butit is very difficult to prove at law. Medical and scientificevidence in the area of asbestos induced carcinoma oforgans other than the lungs is still in a state ofevolution.

Pleural plaques are the most common manifestation ofpast asbestos exposure. They are basically patches ofthickened tissue on the surface of the lung.

Pleural plaques cause symptoms including pain in somecases but current medical and scientific knowledgedoes not support the proposition that pleural plaquespredispose victims to other complications such asmesothelioma.

Ordinary silicosis, whether in its simple or complicatedstage, is defined by the formation of characteristichyaline and collagenous nodules. Accelerated silicosisoccurs when there are intense exposures and ischaracterised by the earlier onset and very rapidprogression of the disease. Acute silicosis developsafter massive exposures and can occur after shortperiods of exposure. The condition is characterised bythe presence of nodules in the lung.

Progressive massive fibrosis is often the end stage ofsilicosis. It occurs when the silica nodules coalesce intoone formation thereby creating an appearance ofprogressive massive fibrosis.

What are the dust diseases?

Asbestosis

Asbestos related pleural disease

Asbestos induced carcinoma of the lung

Pleural mesothelioma

Peritoneal mesothelioma

Asbestos induced carcinoma of other organs

Pleural plaques

Silicosis

Progressive massive fibrosis

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It is important to seek legal advice before you make any claim.Turner Freeman works on a no win-no fee basis for dust diseases claims. Unless you recover compensation you will not be charged for our work.

Dust Diseases Compensation 5

Dust Diseases Compensation6 It is important to seek legal advice before you make any claim.Turner Freeman works on a no win-no fee basis for dust diseases claims. Unless you recover compensation you will not be charged for our work.

New South Wales

Other States

OverseasIn New South Wales you may be eligible to claimcompensation in the New South Wales Dust DiseasesTribunal which is the specialist court set up to hear dustdisease cases.

In addition you may also be eligible to receive apension from the Dust Diseases Board if you worked inNew South Wales and suffer from a recognised dustdisease. A Dust Diseases pension is separate from andin addition to any claim in the Dust Diseases Tribunal.

Turner Freeman has offices in Queensland, SouthAustralia and Western Australia and has links withinterstate law firms in Victoria and Tasmania where itdoes not have a presence.

If you are living overseas but were exposed to asbestosin Australia we can still represent you. Contact us byphone, email or letter.

If you wish to claim in a UK court (England, Scotland orNorthern Ireland) or in the United States of America,Canada and New Zealand, Turner Freeman has linkswith law firms that can assist you.

How to make a claim

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Your matter will be referred to an appropriatelawyer in our offices and you will betelephoned by the lawyer.

Depending on how urgent your case is i.e.how ill you are, an appointment will be madefor you to see your lawyer in our offices, orthe lawyer will visit you at home or inhospital.

The lawyer will obtain a ‘statement’ from youon how you were exposed to the asbestos orother dust, and how the disease has affectedyou. After you have told the lawyer whathappened it will be typed up, reviewed andcorrected if necessary and you will be askedto sign it.

Whether you have a dust disease which mayentitle you to claim for compensation, will bedecided by your medical reports. You may berequired to attend a medical appointmentwith a doctor of our choice. We will arrange

and pay for the appointment. Once we havereceived all medical reports your lawyer willwrite to advise you whether or not you mayhave a claim and arrange to discuss the claimwith you. Usually this can take place on thetelephone but if you are very ill your lawyercan come to your home or to hospital.

If you then decide you wish to go ahead withyour claim you must tell (“instruct”) yourlawyer to proceed. Then your lawyer will takethe necessary steps to have your claim dealtwith by the Dust Diseases Board, the NewSouth Wales Dust Diseases Tribunal, orrelevant court for compensation payout inanother state or overseas. You may have toappear in court personally.

If your case is urgent these procedures can befast-tracked. If your claim is successful youwill receive a lump sum payment incompensation.

Telephone the Turner Freeman office nearest you on the toll free 1800 or office phone number (see listingon page 19). Explain you have asbestos or another dust disease and you would like to speak to a lawyer. Afamily member or friend can make the telephone call for you. Please ask if you would like to speak to oneof our people in a language other than English. You will be put through to a senior staff member who willask you some simple questions.

Turner Freeman works on a no win-no fee basis for dust disease claims. Unless you getcompensation you will not be charged for our work.

Worker using thenumber one machineat the Hardie BI factoryto manufactureinsulation products.

The Dust Diseases Board

Dust Diseases Tribunal

Who can you claim against?

This is a Statutory Authority which provides compensationto workers as defined by the Act who have been exposed todust while working in New South Wales and are sufferingfrom a dust disease as per the Schedule to the Act.

You do not need to prove any fault on behalf of youremployer to obtain compensation from the Dust DiseasesBoard. You may need to undergo a medical examination,though medical evidence in documentary form iscommonly accepted.

If you are assessed as having contracted an asbestosrelated disease within the meaning of the Act and aredisabled as a result then you will receive a fortnightlycompensation payment dependent upon the level ofdisability you suffer. As well you will have all your medical,hospital, pharmaceutical and other related expenses paidby the Board. In some cases funeral expenses may be paid.

The Board will, at regular intervals, re-examine you (otherthan mesothelioma and cancer victims) to see if yourcondition has deteriorated.

In addition a dependant of a worker who dies from a dustdisease is entitled to a substantial lump sum payment andan on-going weekly pension.

New South Wales has a specialist tribunal set up to hearcommon law claims for victims of dust related diseases,the Dust Diseases Tribunal of New South Wales. TheTribunal is the only court of its kind in the world.

The Tribunal was established to provide effective andspeedy processes in dust diseases litigation so claimscommenced by people suffering from dust disease can becompleted in their lifetime. Most dust diseases litigationinvolves diseases which are fatal.

If you claim for a malignant disease it will normally takebetween three and six months from start to finish.

With asbestosis and the other less serious asbestosconditions, you have the choice of either “once and for all”compensation; or “provisional” compensation now, plusthe right to go back for more compensation if you get amore serious asbestos illness in the future.

General damages for pain and suffering survive even if thevictim dies before judgement so long as proceedings havebeen commenced in their lifetime.

There is no limitation period for claims brought in the DustDiseases Tribunal.

The Dust Diseases Tribunal has special evidentiaryprovisions which allow evidence given in one case of ageneral historical or medical nature to be used in othercases. This means that rather than taking four to six weeksto run a claim, a trial normally lasts a matter of days.

Since 1 July 2005 claims for asbestos diseases in the DustDiseases Tribunal are subject to a new claims resolutionprocess. The claims resolution process requires the earlyexchange of information and compulsory mediation before amatter can come before the Tribunal. For a mesotheliomaclaim, mediation must occur within nine to 12 weeks of theStatement of Particulars being filed. If your case does notsettle at mediation it will come before the Tribunal and a trialdate will be appointed.

If you make a common law negligence claim in relation to aterminal condition such as mesothelioma or lung cancer andat the time of diagnosis you were not working and your claimhas been accepted by the Dust Diseases Board, the value ofyour claim is approximately $300,000 to $350,000 after allcosts and disbursements have been paid.

Sufferers with asbestos related diseases in New SouthWales who were exposed to dangerous dust in the course ofemployment can lodge a claim with the Dust Diseases Boardand at the same time can bring a claim at common law viathe Dust Diseases Tribunal process. These avenues ofcompensation are not exclusive.

You can claim in the Dust Diseases Tribunal of New SouthWales against former employers, occupiers of sites andmanufacturers of products.

Since the creation of the Dust Diseases Tribunal in 1989thousands of claims have been brought on behalf ofsufferers of dust related conditions.

They include carpenters, electricians, plumbers, brakemechanics, fitters, boiler makers, laggers, watersideworkers, jack pick operators, quarry workers, factory workersand home renovators who have been exposed to variousdusts including asbestos, silica, talc and even birddroppings. They also include women who washed the workclothes of family members and children who played nearby.

The victims have suffered from various dust related diseasesincluding asbestos related pleural disease, asbestosis, lungcancer, mesothelioma, silicosis, progressive massivefibrosis, talcosis, cryptococcosis and occupational asthma.



Avenues of compensation in NSWVictims of dust diseases have two avenues of compensation in New South Wales

No win-no feeWe work on a no win-no fee basis for dust diseases

claims. Unless you recover compensation you will

not be charged for any work done by our firm or any

expenses incurred by us in investigating your claim.

Should you fail in your claim for compensation you

will be liable for the whole of the other party’s

costs; but not for our fees and charges.

No win-no fee

Commonwealth Employees

Asbestos compensation in theUnited Kingdom

If you are a current or former Commonwealth employeeor former member of the Australian Defence Force youhave the following entitlements if your asbestosconditions are attributable to your employment by theCommonwealth or the Australian Defence Force.

It is important that legal advice is sought by current or formerCommonwealth employees before any decision is made aboutthe type of compensation to pursue.

Entitlements under the Commonwealth SafetyRehabilitation & Compensation Act, 1988

Entitlements under the Veterans’ EntitlementsAct, 1986

Negligence action for damages

Court action

UK Government benefits

Payment under the Pneumoconiosis, etc(Workers’ Compensation) Act 1979

Payment under the 2008 Diffuse MesotheliomaScheme

You may be entitled to a lump sum for permanent impairment,weekly payments of compensation for any work relatedincapacity, medical expenses and possibly compensation forpain and suffering.

Should you die from an asbestos related condition adependant may have a right to lodge a claim under theCommonwealth Safety Rehabilitation & Compensation Act,1988. Your dependant would have to show dependence uponyou. There also may be a sum to cover funeral expenses.Amounts may also be payable to your dependent children.

In certain circumstances ex-members of the Australian DefenceForce may have entitlements under the Veterans’ EntitlementsAct, 1986. These entitlements result in a pension and not alump sum.

If you make a common law claim for the same asbestoscondition for which you have been accepted by the Departmentof Veterans’ Affairs, then there could be an effect on yourVeterans’ Affairs pension. It could also affect treatmentexpenses that the Department of Veterans’ Affairs has paid inrelation to that asbestos condition. The circumstances of eachcase are considered individually.

Where exposure to asbestos occurred prior to 30 November1988 you may sue for negligence at common law. You are notrestricted by the operation of the Commonwealth SafetyRehabilitation & Compensation Act, 1988. Proceedings againstthe Commonwealth are commenced in the Dust DiseasesTribunal of New South Wales and in other state courts.

You can make a court claim in the UK for compensation formesothelioma, asbestos related lung cancer, asbestosis andasbestos related pleural disease/thickening. You can claimcompensation for a relative with asbestos disease who hasdied.

In the UK a court action will usually be made against youremployer if you worked with asbestos. If you worked nearsomeone else who used asbestos, you may be able to claimagainst their employer, or the manufacturer of the asbestosproducts. If you lived near an asbestos factory, you may have aclaim against the factory. Claims can be made againstcompanies which have gone out of business since 1969.

With pleural diseases and the other less serious asbestosconditions pleural thickening and asbestosis, you have thechoice of either “once and for all” compensation; or“provisional” compensation now plus the right to go back formore compensation if you get a more serious asbestos illnessin the future.

You can get a no win-no fee arrangement for the legal costs of aclaim in the UK. This is known as a conditional fee agreement.

If you have any asbestos disease, other than pleural plaquesalone, through coming into contact with asbestos at work in theUK at any time since July 1948, you should apply for the weeklystate benefit Industrial Injuries Disablement Benefit.

You can claim a payment for a family member who hadasbestos illness and who has died but you must apply within12 months of their death.

This is a one-off payment from the Department of Work andPensions, a UK Government department. You can claim foryourself or for a relative who had an asbestos illness and hasdied. To get a payment, you must be eligible for IndustrialInjuries Disablement Benefit and your employer must havegone out of business and you or your lawyer must not havestarted a court action for compensation for an asbestos illness.However, it is nearly always worthwhile applying for a 1979 Actpayment even if your employer is still in business.

Receiving a payment under the 1979 Act does not stop youstarting a court action afterwards.

There are time limits for applying. You should apply as soon asyou know you have an asbestos condition. Don’t wait for theoutcome of your other claims.

Mesothelioma sufferers who are unable to get a payment underthe 1979 Act will qualify for a payment under the DiffuseMesothelioma Scheme instead. If you have been exposed toasbestos in the UK and you have been diagnosed withmesothelioma you should apply. The Scheme covers those whowere exposed to asbestos outside the workplace includingwomen washing their husband’s overalls for example. Youmust apply within one year of your diagnosis. You can apply fora payment if you have lost a relative through mesothelioma butyou must apply within 12 months of the date of their death.

If you were exposed to asbestos in the UK and later get anillness caused by asbestos, you can claim compensation inthe UK, even if you no longer live there. If you have hadcontact with asbestos both in the UK and in Australia, youcould make separate claims in the UK and Australia. Turner Freeman has been conducting claims in the United

Kingdom with the assistance of lawyers in England, Scotland,Northern Ireland and Wales for over 20 years and has assistedBritish migrants to recover millions of pounds in compensation.

It is important that legal advice is sought by current or formerCommonwealth employees before any decision is made aboutthe type of compensation to pursue.

Turner Freeman has been conducting claims in the UnitedKingdom with the assistance of lawyers in England, Scotland,Northern Ireland and Wales for over 20 years and has assistedBritish migrants to recover millions of pounds in compensation.

Dust Diseases CompensationIt is important to seek legal advice before you make any claim.Turner Freeman works on a no win-no fee basis for dust diseases claims. Unless you recover compensation you will not be charged for our work.

8

Bernie was thefirst person tomake a secondclaim for damagesafter beingdiagnosed with asecond, differentasbestos disease.

Bernie sufferedfrom severe

asbestos pleural disease and asbestosis since 1999requiring constant oxygen from October 2003. In2007 Bernie was diagnosed with the separate diseasemesothelioma. His mesothelioma was not related tohis pleural disease or asbestosis.

Bernie was exposed to asbestos as a result of hisemployment with James Hardie at its insulationfactory from 1968 to 1974 as a plane operatorworking on the production of asbestos insulationblocks and pipe sections. The conditions Bernieworked in were horrendous. Bernie described theatmosphere he worked in; “I was often covered in afine white dust. It was on my face, skin, hair andclothes. There was so much dust on my clothes that Iused compressed air to get rid of the dust…. Therewas so much dust around, that getting dust in myeyes and nose was just a part of the routine.”

In 1999 Bernie sued James Hardie in the DustDiseases Tribunal of New South Wales. Because hewas only 53 years of age at the time Bernie, on theadvice of his lawyer, Turner Freeman’s Tanya Segelov,commenced and settled his claim on a provisionaldamages basis. This meant that Bernie wascompensated for his pleural disease and asbestosisand he reserved his right to make a claim if hedeveloped another asbestos disease such asmesothelioma or lung cancer. Initially James Hardierefused to settle his claim on a provisional damagesbasis. Bernie stuck to his guns and his settlement wasone of the first provisional damages settlements inNew South Wales.

Because Bernie’s asbestosis claim settled on aprovisional damages basis, Turner Freeman was ableto commence a further claim in relation to hiscondition of mesothelioma. The further claim soughtdamages for his condition of mesothelioma as well asexemplary damages, that is damages designed topunish James Hardie for its behaviour in grosslyexposing him to asbestos dust when it knew of thedangers in doing so and its conduct in restructuringthe company in 2001 to set up a compensation fund

that was grossly inadequate to compensate futurevictims. James Hardie tried to have the claim forexemplary damages struck out. The Dust DiseasesTribunal held that such a claim was available and thiswas upheld by the New South Wales Court of Appeal.Bernie’s health deteriorated and the Dust DiseasesTribunal expedited his hearing, taking his evidencefrom his bedside at Concord Hospital. Bernie’s casesettled for a confidential sum days before his death.

Over the years Bernie watched many of his friends andcolleagues from James Hardie, including his ownbrother, die of asbestos diseases. As a result Berniebecame a tireless campaigner for the rights ofasbestos victims and workers in general, particularlyduring the James Hardie Commission of Inquiry andthe fight to ensure that all James Hardie victimsreceive fair compensation. Bernie became the publicface of asbestos victims during the James HardieInquiry and was the victims’ representative innegotiations with James Hardie. Bernie’s fearlesspassion and dedication ensured that James Hardievictims’ right to compensation has been guaranteedfor the next 40 years and that the plight of asbestosvictims has remained in the forefront of politiciansminds and the media. Bernie’s last fight was toensure that Alimta chemotherapy treatment was puton the PBS and therefore available to allmesothelioma sufferers.

Bernie’s claim highlights the importance of settlingclaims for benign asbestos diseases on a provisionaldamages basis. All New South Wales plaintiffs have aright to settle their claims on a provisional damagesbasis. If you settle your claim on a full and finaldamages basis rather than a provisional damagesbasis then you can never make another claim, even ifyou develop mesothelioma or lung cancer. Thedifference between a settlement on a provisionaldamages basis and a full and final damages basis isnormally about $10,000 to $20,000, that is, if yousettle your claim on a full and final basis rather than aprovisional damages basis you will receive an extra$10,000 to $20,000 now. You will however give upthe right to claim further damages in the vicinity of$100,000 to $250,000 in the event you contractmesothelioma or lung cancer.

A State funeral was held for Bernie on 5 December2007. It was a fitting farewell for a courageous manand a fighter who fought James Hardie on behalf of allvictims up to his dying breath. His passion,determination and humour will be greatly missed byall who knew him, particularly his friends at TurnerFreeman.

Bernie Banton AM



At the age of 17 Judge Robert (Bob) Bellearenlisted in the Navy. For the next seven years heworked on board various naval ships including theHMAS Cerberus, HMAS Anzac, HMAS Sydney,HMAS Hobart and at the shore base HMASKuttabul. Throughout this period, he removedasbestos lagging on steam pipes in the engineand boiler rooms. At night he slept in a hammockslung beneath the asbestos lagging.

He and other labour trainees made snow balls outof asbestos scraps. He described this work in anaffidavit before the Court. “I wore blue overalls atwork. Because of the heat, the overalls wereundone to my waist. By the end of a four hour shiftI was covered in whitish-grey dust. It was on myhair, my body and on my overalls”. Judge BobBellear left the Navy in 1968. Nearly 40 years later,he was diagnosed with lung cancer as a result ofthe combination of his exposure to asbestos inthe Navy and his smoking.

After leaving the Navy in 1972, Judge Bob Bellearstarted to study for his Higher School Certificatepart-time. In 1973 he obtained his Higher SchoolCertificate and applied for, and was accepted, to alaw degree at the University of New South Wales.In 1978 he graduated from university and on 13July 1979 was admitted as a barrister in theSupreme Court of New South Wales.

As a barrister Judge Bellear appeared in criminal,civil, workers’ compensation and family law cases;his main emphasis being criminal trials in the cityand country instructed by the Aboriginal LegalService, which he helped create, Legal AidCommission and private practitioners.

He acted for traditional land owners in land rightclaims, was appointed as Counsel assisting theRoyal Commission into Aboriginal Deaths inCustody, and in 1991 a New South Wales PublicDefender. On 17 May 1996 he was appointed as aJudge of the District Court. Judge Bob Bellear wasthe first and only Aboriginal to be appointed as ajudge in Australia.

Throughout his life Bob Bellear was a crusader forjustice for Aboriginal people. He was a Director ofthe Aboriginal Medical Service, AboriginalHousing Committee, Aboriginal Legal Service,Aboriginal Children’s Service and foundingDirector of Tranby Co-operative College.

Proceedings were commenced on behalf of JudgeBellear in the Dust Diseases Tribunal of New SouthWales. Expedition was sought and granted due to theJudge’s increasingly frail condition. Judge Bellear’sevidence was taken at his home and his matter settledjust weeks before his death. Turner Freeman acted forJudge Bob Bellear. Judge Bellear’s case shows theindiscriminate nature of asbestos diseases. He is oneof a number of prominent people including the formerNew South Wales Governor, Sir David Martin, also aformer naval officer, who have contracted asbestosdisease as a result of exposure to asbestos early intheir careers.

Judge Bob Bellear was given a State funeral with theNew South Wales Parliament being suspended for theafternoon.

Snow balls

Mature age student

The advocate

Judge Robert (Bob) Bellear


10

Straight from the heartWhen ACT resident Elizabeth Thurbon lost her husband Peter to asbestos disease afew years ago, she was not prepared to suffer in silence. Elizabeth sat down andwrote a book about her husband's illness and death, and the effect on her family.It's a powerful read that also contains some very useful practical information thatpeople in a similar situation need to know. “Climbing out of the Big Black AsbestosHole” has been reprinted several times since it was written and is widelydistributed by health care professionals. Turner Freeman can provide a copy onrequest or alternatively a free copy can be ordered from Elizabeth’s website.

Margaret Dawson was a 64 year old grandmotherwho was diagnosed with pleural mesothelioma inApril 2007. She was exposed to asbestos dust andfibre as a result of shaking out and washing bothher father's and her husband’s work clothes. Herfather and husband were employed by James Hardie& Coy Pty Ltd (“Hardies”).

Mrs Dawson moved in with her only daughter,Carina Novek and her son-in-law, Neale Novek in2001. In February 2002 her first grandchild,Nicholas was born. She left work in 2003 to lookafter her grandson and to enable Mr and Mrs Novekto work full time to support their growing family.

In June 2004 her second grand child, Chelsea, wasborn. Mrs Dawson continued to look after bothNicholas and Chelsea full time while Mr and MrsNovek worked.

Mrs Dawson ran the household. She looked afterthe children during the day while their parents wereworking and she looked after the majority of thedomestic house chores. She cooked dinner and didall the household washing.

Mrs Dawson was not paid for her services and shedid not pay rent to live with Mr and Mrs Novek.

The claim for damages that was made on behalf ofMrs Dawson in the proceedings against Hardiesincluded a claim under Section 15B of the CivilLiability Act, 2002 for her lost capacity to provideservices for the benefit of her grandchildren.

Mrs Dawson’s case was a test case. There has neverbeen an award of damages made in the DustDiseases Tribunal under s.15B where the plaintiffwas a grandparent and the primary carer to theirgrandchildren, and the grandchildren’s parentswere still alive.

The matter came before His Honour Judge Kearns inthe Dust Diseases Tribunal. His Honour ruled infavour of the plaintiff and awarded $547,137 in

total damages, $193,307 of those damages beingawarded under section 15B.

Hardies appealed the judgment of Judge Kearns tothe Court of Appeal. On 17 March 2009, the Court ofAppeal unanimously dismissed the Hardies appealand Margaret’s long fight for justice was finally over.

Margaret’s daughter, Carina, remains angry at JamesHardie and stated “Mum wasn’t even a Hardiesworker. They don’t realise how far reaching theimpact of their product was on families. Fighting usthrough the courts to the nth degree justcompounded the injury.”

The case received enormous media coveragebecause of its significance. It recognises theimportant role played by grandparents in modernAustralian society, as carers of grandchildren, toenable their children to go to work or to have freetime.

Margaret Dawson lost her battle with mesotheliomaand died on January 27 2008. Margaret would bequietly proud to know that something that she didended up making an enormous difference.

Record award for grandmother




12

John William Booth contracted malignant pleuralmesothelioma, a cancer of the lining of the lung that isonly caused by asbestos, when he was 71 years of age.

Mr Booth had worked with brake linings containingasbestos for a period of about 30 years, commencing inthe early 1950’s. The majority of the brake linings that heworked with were manufactured by James Hardie & Coy PtyLimited (now called Amaca) and a related Hardie companyHardie Ferodo Pty Limited (now called Amaba). He wasalso exposed to asbestos from working with brake liningsmanufactured by other companies, from helping his fatherwith work on the family home using fibro sheets and fromcarting a load of raw asbestos fibre from the Sydneywaterfront.

Mr Booth commenced proceedings in the Dust DiseasesTribunal of NSW (DDT), a specialist court established tohear cases for compensation for asbestos disease,claiming compensation from both Amaca and Amaba.

Mr Booth’s case proceeded to hearing before Judge Curtisof the DDT in February 2010. A number of medical expertwitnesses gave evidence in Mr Booth’s case includingProfessor Douglas Henderson and Dr James Leigh, bothworld recognised experts in the area of the diagnosis andcause of mesothelioma. Amaca and Amaba defended theclaim vigorously. Neither company called expert medicalevidence to show that their products were not a cause ofMr Booth’s mesothelioma. Instead, Amaca and Amabaargued that while the state of medical knowledge wassufficient to prove that asbestos was the sole cause ofmesothelioma, the state of medical knowledge did notallow Mr Booth to prove that asbestos productsmanufactured by Amaca and Amaba were a cause of hismesothelioma.

Judge Curtis found in Mr Booth’s favour on 10 May 2010and awarded him $326,640 plus his costs. Mr Booth hadpreviously offered to settle his claim for $250,000 pluscosts and so Judge Curtis ordered Amaca and Amaba topay Mr Booth’s costs on an indemnity basis from July2009. Judge Curtis not only accepted the evidence of MrBooth’s medical witnesses but also found that as early as1953 Amaca should have been aware that its productscould cause asbestos disease.

Both Amaca and Amaba subsequently appealed to theNSW Court of Appeal. Both companies argued that theasbestos contained in their products could not be provento be a cause of Mr Booth’s mesothelioma. Three Appealjudges of the NSW Court of Appeal unanimously dismissedthe appeals awarding costs to Mr Booth on 10 December2010.

Both Amaca and Amaba sought special leave of the HighCourt of Australia to appeal the decision of the NSW Courtof Appeal. On 10 June 2011, the High Court of Australiagranted Amaca and Amaba leave to appeal the decision of

the NSW Court of Appeal but only on a limited basis, thatbeing whether the expert evidence relied on by Mr Boothcould establish that the asbestos in Amaca’s and Amaba’sbrake linings was a cause of Mr Booth’s mesothelioma. Inaddition, the High Court required Amaca and Amaba to payMr Booth’s costs of the proceedings in the DDT, NSW Courtof Appeal and High Court, regardless of the outcomebecause Amaca and Amaba were using Mr Booth’s case asa test case that might establish a precedent to be followedin other cases.

The hearing of the appeals took place in the High Court ofAustralia on 4 and 5 October 2011. The Court delivered itsdecision on 14 December 2011 dismissing Amaca's andAmaba’s appeals by a four to one majority.

The outcome of the case is of critical importance to allfuture mesothelioma victims. The High Court rejectedAmaca’s and Amaba’s argument that the expert medicalevidence relied on by Mr Booth did not establish thatasbestos from their brake linings was a cause of Mr Booth’smesothelioma. The Court accepted Mr Booth’s expertmedical evidence that all of his exposure to asbestoscaused his mesothelioma and as asbestos from the brakelinings manufactured by Amaca and Amaba that Mr Boothworked with made a significant contribution to theasbestos in his lungs, they were responsible for Mr Booth’smesothelioma.

Mr Booth’s case is a very important victory for all presentand future mesothelioma victims. This is because Amacaand Amaba tried to argue that the medical evidence reliedon by Mr Booth could not prove that asbestos from theirbrake linings caused his mesothelioma. If Amaca andAmaba had succeeded, then all future claims forcompensation for mesothelioma would have been denied.It is estimated that about 20,000 people will be diagnosedwith mesothelioma over the next 30 years. Had Mr Boothfailed then those people would not be able to claimcompensation.

is greatlyrelieved that his case is finally over. He has now finallyreceived his compensation money and it has been of greatassistance to him in re-establishing his lifeafter a hard fought struggle.

Gerard McMahon, Managing Partner of our Newcastleoffice and a Dust Diseases Litigation Specialistrepresented Mr Booth in his Court proceedings up to andincluding his High Court hearing. Mr Booth

An important victory for mesothelioma victims

Mr Booth’s case is a very

important victory for all present

and future mesothelioma victims

Mr John Booth

An important victory for mesothelioma victims



Exposed During Home Renovations

Anna Rooney’s only exposure to asbestos was from her latefather’s work clothes. From the time of her birth until Annawas six years of age, she lived at her family home, adjacentto the Wangi Wangi Power Station, in NSW.

Anna’s father was employed as a boilermaker on theconstruction of the Wangi Wangi Power Station. As he livednext door to work, he came home for lunch each day, pickingup and playing with his baby daughter Anna while in workclothes covered with asbestos dust. Nearly 50 years laterAnna was diagnosed with the asbestos cancer,mesothelioma. Anna sued her father’s former employer,Babcock & Wilcox (now Babcock Australia Pty Limited) andthe Electricity Commission of New South Wales (now EraringEnergy).

As Anna was a child when she was exposed to asbestos, she

could not provide any details of her exposure. A large amountof investigation work was carried out by Turner Freeman wholocated a number of former workmates of Anna’s father (nowdeceased) who provided evidence as to his work andexposure to asbestos. Despite initial indications from theDefendants that the matter would be fully contested, thematter settled prior to trial.

Turner Freeman has acted for a number of people who havecontracted mesothelioma in their 30’s and 40’s as a result ofchildhood exposure to asbestos. Claims can be run evenwhere the client is too young to remember the exposure toasbestos, if family members or other witnesses can provideevidence of the exposure. Turner Freeman’s long history inasbestos litigation means that it has substantial knowledgeof exposures to asbestos in Australia that can be used toassist in such cases.

Power station construction

Investigating back 50 years

Childhood exposure no barrier

Exposed as a child

Serafina Salucci is typical of the third wave of asbestosvictims, that is persons exposed to asbestos as a result ofnon industrial use, mainly DYI home renovators or bystanderexposures. A study by the University of Western Australiapublished in the Medical Journal of Australia in 2011 showedthat 13% of mesotheliomas in Western Australia in thepreceding five years were as a result of exposure to asbestosduring home renovations.

Serafina was born on 8 November 1969. She was diagnosedwith mesothelioma in 2007 at the age of 37 years. At thetime she had four young children aged 10, 8, 6 and 3. Shewas exposed to asbestos as a child. When she was about 7or 8 years old her father built a garage in the backyard oftheir home at Randwick to house his newly purchased car, asecond hand Holden Kingswood. Serafina’s father built thegarage using fibro sheets over a few weekends with the helpof his brother and cousin. Serafina and her older brotherplayed in the backyard whilst the garage was being built.Serafina picked up the fibro cutters her father used to cut thesheets and played with them cutting up the fibro off-cutslying on the ground. She and her brother threw the off-cuts ateach other and used them as chalk to write and drawpictures on the ground.

A few years later Serafina’s family moved to Sutherland. Thehouse had a double garage made from fibro. Serafina’sfather replaced the fibro sheets along one wall whilstSerafina played nearby and again played with the fibro off-cuts.

Serafina was in excellent health until early 2007 when shedeveloped a cough that would not go away. She saw herdoctor who prescribed her antibiotics. Her cough remainedand she was eventually sent for a chest x-ray which showedfluid and a large mass on her right lung. 2.5 litres of fluid

were drained from her lung and she had a biopsy. A few dayslater she was told she had mesothelioma.

Serafina underwent surgery followed by ten chemotherapysessions over eight months. A month later she underwent afurther surgery, a radical pleuropneumonectomy whereby herright lung was removed. The surgery was featured on thetelevision program RPA. Thereafter Serafina had 30radiotherapy treatments and a further 2 chemotherapytreatments. It took her about 12 months to recover from thesurgery and treatments. In late 2010/11 Serafina’s tumourreturned and she had further chemotherapy and surgery.

Apart from looking after her four children Serafina hasbecome an advocate for asbestos awareness and hascampaigned for the introduction of Asbestos SafetyCertificates, so that home owners would know on purchasinga house the location of any asbestos in the house.

In May 2012 Serafina’s campaigning resulted in her meetingand telling her story to the Prime Minister Julia Gillard.

Flight attendant winshistoric High Court case

Dust Diseases CompensationDust Diseases CompensationIt is important to seek legal advice before you make any claim.Turner Freeman works on a no win-no fee basis for dust diseases claims. Unless you recover compensation you will not be charged for our work.

14 Dust Diseases Compensation14

Asbestos Management Review

Flight attendant Joanne Turner was travelling betweenSydney and Brisbane on a BAe 146 aircraft during thecourse of her employment on 4 March 1992.

When the aircraft descended into Brisbane a thickcloud of white grey smoke poured through the ventsinto the cabin for about 20 minutes.

The smoke was emitted as a result of oil in the auxiliarypower unit undergoing a process of pyrolysis, thethermal decomposition of the organic material in oilwithout combustion.

There was evidence of cabin smells in the BAe aircraftfrom the time they were acquired in 1990, a worldwideproblem known to the operator, East West Airlines. Thepredominant problem from the beginning was withengine seals and over a period of time this problem waseventually resolved.

Ms Turner immediately suffered from the effects of thesmoke including coughing, a burning sensation in herthroat, sore eyes and a headache. She has sufferedwith a persistent cough ever since.

Turner Freeman commenced proceedings in the DustDiseases Tribunal of New South Wales in 2001 againsther employer East West Airlines Limited claimingdamages caused by East Wests’ negligence in relationto the operation of its aircraft.

After three weeks of hearings Judge Kearns found thatMs Turner had suffered from a cough ever sincebreathing in the pyrolysed effects of Mobil Jet Oil II on 4March 1992 and that these effects are harmful to thelungs. Her airways had been irritated resulting in a

cough that had remained for some 17 yearsand was likely to continue for the remainder of her life.

Ms Turner succeeded in her claim. She was awarded$138,757.20 for non-economic loss, loss of earningcapacity, out of pocket expenses and compensation fordomestic services provided to her as a result of hercondition.

East West Airlines appealed to the Court of Appeal. On1 April 2010 the Court of Appeal dismissed the Appeal.

An application for special leave to appeal was lodgedby East West Airlines in the High Court of Australia andheard on 3 September 2010.

East West Airlines sought leave to appeal from the Courtof Appeal’s judgment only on the question of whetherthe Dust Diseases Tribunal had jurisdiction. Theyargued that Ms Turner’s condition was caused byingesting oil smoke which was not a dust so that shedid not suffer with a dust related condition.

Joanne was relieved and delighted when the High Courtof Australia dismissed the application for special leaveto appeal.

The dismissal of the appeal brought to an end Joanne’sbrave 18 year fight for compensation. She is the firstworker to succeed in an action for damages for injuriessuffered whilst flying in the BAe 146 aircraft. TheJudgment has received international attention fromother claimants who hope to build on Joanne’s successin other countries.

In 2010 the Commonwealth Government established aNational Asbestos Management Review to makerecommendations to the Government for the developmentof a national strategic plan to improve asbestosawareness, management and removal.

Turner Freeman Partner, Tanya Segelov was invited by theMinister to sit as one of the experts on the AdvisoryCommittee, whose job was to assist the Chairperson inproviding his recommendations and Report. After monthsof consultations, the release of an Issues Paper plusreviewing 57 written submissions, the Review handed itsReport to Minister Bill Shorten in June 2012. The Reportmade 12 key recommendations including theestablishment of a national body to implement theNational Strategic Plan, the identification and stagedremoval of asbestos containing materials from commercial

and government buildings by a target date of 2030 and therequirement for an Asbestos Content Report on allresidential houses built prior to 1987 identifying thelocation and condition of asbestos containing materials atthe point of lease, sale or prior to renovations along with alabelling system to alert workers of the presence ofasbestos.

Minister Shorten set up the Office of Asbestos Safety in hisDepartment to develop the National Strategic Plan by 1 July2013.

In May 2013 the Parliament passed legislation to establishthe Asbestos Safety and Eradication Agency to operatefrom 1 July 2013. Tanya Segelov is one of the twoindependent representatives appointed to the Agency’sCouncil.



Some Turner Freeman Landmarks�

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Vivien Margaret Olson v. CSR Limited andAustralian Blue Asbestos Pty Ltd

Norman Wren v. CSR Limited & Anor

Helene Edwards v. James Hardie & Coy PtyLimited

Albert Charles Dyson v. Johnson & Johnson PtyLtd

Bill Roberts v. Amaca Pty Limited (formerlyJames Hardie & Coy Pty Ltd)

David Sim v. Allianz Australia Limited

Vivien Olson was born at the Wittenoom Hospital inSeptember of 1959. She lived in Wittenoom for 27months until the end of 1961 when her family moved toSydney. As a baby in the Wittenoom township she wasexposed to blue asbestos dust from tailings that weredumped around her parents’ home. In April 1994 MsOlson contracted mesothelioma. In a ground breakingjudgment the New South Wales Court of Appeal upheldthe decision of Judge O’Meally in the Dust DiseasesTribunal of New South Wales and awarded Ms Olson’sestate damages of $613,095.

Mr Wren was exposed to asbestos while working forabout a year in 1950 for Asbestos Products Pty Limited,a subsidiary of CSR Limited that made asbestos cementfibro sheets.

Asbestos Products Pty Ltd was deregistered in 1960 andcould therefore not be sued. It’s Workers Compensationinsurance policy was limited to £6000. Turner Freemansued CSR Limited alleging that it directly controlledAsbestos Products Pty Ltd and therefore wasresponsible for its negligent acts and omissions – CSRran the matter as a test case and put all matters in issueincluding whether CSR should have known of thedangers of exposure to asbestos in 1950. CSR relied onthe notion of the corporate veil arguing AsbestosProducts Pty Ltd was a separate entity and that it couldnot be liable for its acts or omissions. In a groundbreaking decision the Court accepted Mr Wren’sarguments and CSR liable. CSR appealed to the NewSouth Wales Court of Appeal. The appeal wasunanimously dismissed and the Tribunal’s verdictupheld. The case is very significant and is now taught inCommercial Law classes at universities.

Helene Edwards was a 57 year old resident of SouthAustralia with mesothelioma. Her only exposure toasbestos was in 1977 for a period of two weeks whilstassisting her father to renovate the bathroom. MrsEdwards held the fibro sheets her father cut and drilled.She also cut some of the sheets herself. Proceedingswere brought against James Hardie & Coy Pty Ltd, themanufacturer of the building products used by MrsEdwards and her father. Mrs Edwards was successful inher proceedings. In a landmark judgment the DustDiseases Tribunal of New South Wales awardeddamages of $803,403. This is the first judgment for aperson with mesothelioma contracted as a result ofhome renovations.

Albert Dyson was employed by Johnson & Johnson PtyLtd as a storeman. He was required to carry out cleaningwork using compressed air to blow down pigeondroppings from the rafters in the store at the factory. MrDyson was not provided with proper protectiveequipment while he was carrying out the work. As aconsequence of inhaling dust in the bird droppings hecontracted the disease cryptococcosis. He successfullysued his employer Johnson & Johnson Pty Ltd in theDust Diseases Tribunal of New South Wales and wasawarded damages of $533,418.

Mr Roberts was diagnosed with mesothelioma at theage of 63. He was working as a dentist. He alleged hewas exposed to asbestos during the course of homerenovations in the 1960’s when Bill helped his brotherto erect a wall and line the ceiling of a car parking areausing fibro sheets.

A few years later he again helped his brother toconstruct a children’s playroom area again using fibrosheets. These were his only exposures to asbestos. Billsued Amaca Pty Limited (formerly James Hardie & CoyPty Limited), the manufacturer and supplier of the fibrosheets. Although admitting liability James Hardie foughtBill’s claim on damages. The matter proceeded to trialand Bill was awarded a verdict of $1,955,456.84 pluscosts, one of the highest awards made by a judge formesothelioma in Australia.

Mr Sim suffered from asbestosis. He subsequentlycontracted lung cancer and died on 6 July 2009. Mr Simcommenced proceedings in the Dust Diseases Tribunalof New South Wales in his lifetime which werecontinued by his Estate. Mr Sim sued his formeremployers. He had worked as a lagger for variouscompanies installing asbestos insulation between 1964and 1979. The defendants argued that because Mr Simcould not identify which employment caused his lungcancer he could not succeed in his claim. The Courtrejected this argument and accepted the evidencecalled on behalf of Mr Sim that each employment hadmade a material contribution to Mr Sim’s lung cancer.Mr Sim’s Estate was awarded $317,561.85. Thedefendants appealed the decision to the New SouthWales Court of Appeal who unanimously dismissed theappeal and upheld the verdict.

In March 2004 the then Carr New South WalesGovernment announced a Special Commission ofInquiry into the Medical Research and CompensationFoundation established by the James Hardie group tobe heard by Commissioner David Jackson.

James Hardie was the largest manufacturer ofasbestos products in Australia, manufacturingasbestos cement building products, insulationproducts, and asbestos brake linings in New SouthWales, Victoria, Queensland, South Australia andWestern Australia from 1917 to 1987. In February2001 James Hardie set up the Medical Research andCompensation Foundation (MRCF). The purpose ofthe MRCF was to pay off all of James Hardie’sasbestos liabilities. James Hardie put $293m intothe Fund for all future asbestos liabilities, with anyleft-over monies to be spent on research.

Despite outcries by unions, victims support groupsand Turner Freeman, James Hardie assured thegovernments, unions, the stock exchange and thepublic that the MRCF was fully funded and hadsufficient funds to meet all legitimate compensationclaims anticipated for people injured by JamesHardie’s asbestos products. James Hardie thenentered into a scheme of arrangement whereby thecompany left Australia and relocated to theNetherlands leaving asbestos victims access only tothe $293m of the MRCF.

In December 2003 the New South Wales Governmentannounced an Inquiry into the setting up of theMRCP. The Commission sat for nearly 200 hearingdays, hearing evidence from James Hardie’s formerdirectors, employees, actuaries and solicitors.Following detailed submissions made by the parties,the Commissioner handed down a two volume

report. The Commissioner found that James Hardieestablished the MRCF for commercial reasons, that isto rid itself of its asbestos liabilities so that it couldraise capital and list on the US Stock Exchange. TheCommissioner found that the MRCF was massivelyunder-funded, a situation that James Hardie’s CEO,Peter McDonald knew and that the Board oughtreasonably to have known. Commissioner Jacksonfound that James Hardie’s action and that of its CEO,Peter McDonald and CFO, Peter Schaffron, were inbreach of the law.

Just prior to the closing submissions, James Hardiemade a conditional offer to pay for future asbestosliabilities if the common law system of claims wasabolished. This offer was rejected by the New SouthWales Government, unions and support groups.Following the release of the Commission’s Report,and after pressure by governments, unions, mediaand the public, James Hardie agreed to fund all of itsfuture asbestos liabilities for 40 years.

Months and months of negotiations then followedbetween the New South Wales Government, unionsand asbestos support groups and James Hardie as tothe mechanism by which James Hardie would fundits future asbestos liabilities. The agreement wasfinalised in 2007 with the first payment by JamesHardie.

Turner Freeman acted for the coalition of the unionsand asbestos support groups at the Commission.Turner Freeman attended at the Commissionhearings, cross-examined witnesses and madedetailed submissions. Turner Freeman’s partners,Armando Gardiman and Tanya Segelov devoted theirtime over an eight month period to the Commissionof Inquiry. Turner Freeman acted in the Commissionon a pro bono basis.

Poisonous history

The Commission

Pro bono

James Hardie Commission of Inquiry

Other services Turner Freeman offersAs well as dust disease litigation Turner Freeman has a range of other specialists working in such diverseareas as personal injury law (including workers compensation, medical negligence, motor vehicleaccidents, public liability and superannuation claims), employment and industrial relations, family law,defamation actions, property and conveyancing, wills and estates, elder law, commercial law and clubs,sports and leisure. Contact your local Turner Freeman office if you need help or advice in any of theseareas.


16



Armando Gardiman

Tanya Segelov

Judy Horobin

Gerard McMahon

MANAGING PARTNER

PARTNER

PARTNER

PARTNER

Overall responsibility for thedust diseases litigationpractice of Turner Freeman iswith Armando Gardiman. He isa Dust Diseases LitigationSpecialist. Armando first actedfor an asbestos workersuffering from mesothelioma in1981. Since then he has actedfor more than 2000 peoplesuffering from all types of dust

disease but mostly with mesothelioma. For over 30 yearshe has been at the forefront of litigation on behalf of dustdiseases victims in Australia. He has direct responsibilityfor all New South Wales claims.

Since joining Turner Freeman in1993 Tanya has litigated someof the most difficult andsignificant dust disease claimsin Australia. She is a DustDiseases Litigation Specialistwho specialises in claimsarising out of the buildingindustry and has workedextensively in South Australia,

where she was the managing partner of the firm’sAdelaide office for several years. In 2010 Tanya wasappointed as one of the nine members of the ExpertAdvisory Committee to the Commonwealth’s NationalAsbestos Management Review.

Judy Horobin was a naval legaladviser for 25 yearsspecialising in asbestos claimsbefore she joined TurnerFreeman and is a Partner at theParramatta office and nowspecialises in claims againstthe CommonwealthGovernment and Telstra. Sheis a Dust Diseases LitigationSpecialist and has an in depthunderstanding of the needs of former servicemen andwomen who have asbestos related diseases as well ascivilian dockyard workers from a variety of trades.

Gerard McMahon is theManaging Partner of ourNewcastle office. He has aspecial interest in dustdiseases and in particularasbestos related cancers. He isa Dust Diseases LitigationSpecialist. He representspeople from the Hunter Valleyand North Coast with asbestosrelated diseases includingcarpenters and other tradesmen. He has extensiveexperience in litigating personal injury claims and hasbeen an Accredited Specialist in personal injury law for15 years. Gerard is also one of only a few lawyersaccredited by the Law Society of NSW as a specialist inDust Diseases litigation.

Turner Freeman has more than 50 people in its dust diseases litigation department in its Parramatta, Sydney,Newcastle, Perth, Adelaide, Logan, Maroochydore, Ipswich and Cairns offices. We have nine Partners whospecialise in dust diseases litigation and a number of associates, lawyers and paralegals with specificexpertise. Our senior expert lawyers in New South Wales are:

The people at Turner Freeman

Fiona SeatonSENIOR ASSOCIATE

An accredited specialist inpersonal injury law and DustDiseases Litigation Specialist,Fiona has successfullylitigated for clients withasbestos diseases such asmesothelioma and asbestosissince first being admitted asa solicitor in 1993.

The people at Turner Freeman speak a

number of different languages. When

we do not have a lawyer who speaks

your language, we can access

interpreters

Dust Diseases CompensationDust Diseases CompensationIt is important to seek legal advice before you make any claim.Turner Freeman works on a no win-no fee basis for dust diseases claims. Unless you recover compensation you will not be charged for our work.

18

Exposure Registration Form

Name _____________________________________________________________________________________

Address ___________________________________________________________________________________

__________________________________________________________________________________________

Date of Birth ___________________________ Telephone _________________________________________

Place(s) where exposed or if home renovating, address where renovations occurred _______________

__________________________________________________________________________________________

__________________________________________________________________________________________

Employer (if employment based exposure) / Occupier of site (if contractor) _______________________

__________________________________________________________________________________________

__________________________________________________________________________________________

Time period of exposure ____________________________________________________________________

__________________________________________________________________________________________

Product(s) exposed to_______________________________________________________________________

__________________________________________________________________________________________

Turner Freeman will open a file and take steps to register exposure on an obligation free basis.

If a person has been exposed to asbestos in NSW employment, but has not developed any asbestosdisease, it is prudent that their exposure to asbestos be registered and Turner Freeman Lawyers canassist in this regard. If you have been exposed please complete this form and return it to

Circumstances of Exposure

Have you made an application to the Dust Diseases Board? yes / no (please circle)

If so, has your application been accepted? yes / no (please circle)

Have you been diagnosed with a dust disease? yes / no (please circle)

If yes, please specify disease___________________________________________________

Have you seen a doctor for your dust disease? yes / no (please circle)

If yes, provide the Doctors name_______________________________________________

Turner Freeman LawyersPO Box 4084, Parramatta NSW 2124

Any precautions taken to prevent exposure? yes / no (please circle)

Signature _______________________________ Date _____________________________

Turner Freeman LawyersPO Box 4084, Parramatta NSW 2124

Turner

Lawyers

FreemanIf you would like to register any previous exposure to asbestos please fill in thisform and return it to us. We will maintain an obligation free file on your behalfat our office

If you have any questions regarding this form or would like any information regarding compensationentitlements for asbestos exposure please contact us on (02) 8833 2500 or toll free 1800 800 088.

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PARRAMATTA OFFICE

SYDNEY OFFICE

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PENRITH OFFICE

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GLOUCESTER OFFICE

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100 George Street

Parramatta NSW 2150

PO Box 4084

Parramatta NSW 2124

Tel 02 8833 2500

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Sydney NSW 2000

DX 152 Sydney

Tel 02 8222 3333

Fax 02 8222 3349


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Gilchrist Drive

Campbelltown NSW 2560

PO Box 205

Macarthur Square NSW 2560

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Fax: 02 4629 1805

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Newcastle NSW 2300

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Wollongong NSW 2500

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Turner Freeman officesNEW SOUTH WALES

We also have interstate offices located at:

Adelaide, Brisbane, Cairns, Ipswich, Logan City,Maroochydore, Perth, Southport andToowoomba.

We also have interstate offices located at:


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