History of the Asbestos Class Action Suit
Class actions only truly arose in Australia post 1992, and are still considered an anomaly and rare by most Australians. However one class action that most Australians know about is in relation to Asbestos. Below is a brief history of Asbestos claims in America and Australia.
The Landmark American Case
Today, some of the biggest class action claims filed relating to injury and damages are those involving asbestos related injuries.
In the United States, the landmark case of Borel v. Fireboard Paper Products Corporation was begun in 1969 and finalised on September 5, 1973 by the United States Court of Appeals, Fifth Circuit Court. The main action was based on the injury caused to the plaintiff when he contracted cancer as a result of 36 years of exposure to asbestos.
Medical findings showed that asbestos could cause diseases like mesothelioma, pleural mesothelioma, asbestosis and cancer affecting different organs of the body with no known cures. Borel won the suit and was awarded the amount of approximately $80,000 as compensation for his injuries.
The success of Borel’s case in the US Court was instrumental in the ensuing injury and damage claims against employers and manufacturers of asbestos in the US and all over the world. In less than 10 years, over 16,000 asbestos-related personal injury cases were filed in the US courts. The decision in Borel’s case enabled workers who were injured by asbestos to file product liability lawsuits against their employers as well as the manufacturers of asbestos products.
In many instances, attempts were made to claim for compensation for asbestos related injuries in Australia. The first recorded legal proceeding involving asbestos injury in Australia (reported in Workers Compensation Court Law Reports of NSW in 1938) was the case brought by Mrs Evans, (the widow of Mr Evans) who died from cancer after working at a James Hardie plant for several years.
Subsequent cases were filed in 1940s, 1950s, 1960s and 1970s, which were reported in different jurisdictions all throughout Australia. Most early cases were being settled prior to litigation or decided by the court based on settled statutory “no fault” compensation. This trade-off policy restricted the victim’s ability to bring a common law claim of “negligence” against their employer in favour of settling the claims privately.
Recently, James Hardie (the largest manufacturer of asbestos containing products in Australia) entered into an agreement with the NSW Government and signed an Amended Final Funding Agreement on Tuesday 21 November 2006. The company was required to set aside funds to the Medical Research and Compensation Foundation (MRCF) to avert a Federal Court application. Evidence suggests James Hardie had knowledge of the dangers of asbestos as early as the 1930’s.
In the Courts, the first recorded case over asbestos injury claim was decided in September 1985. In the case, Pilmer v McPhersons Ltd, the victim suffered mesothelioma and was awarded damages of $270,000.
Subsequent cases include the case of Thomas Robert Bodsworth v. City of Nunawading decided on March 1995 by the Supreme Court of Victoria. The jury decided in favor of Mr Bodsworth. In his claim, he alleged that he acquired malignant mesothelioma at age sixty-one while occupying his desk under an asbestos-sprayed ceiling in the course of his work at the Nunawading City Council. The judge found the defendant “was in breach of its duty of care to the appellant” and awarded damages of $226,000 to the plaintiff.
In another case (CSR vs Culkins), a verdict was handed down by the High Court on 20 April 1995 was hailed as a major victory by campaigners for Australian asbestos victims. According to Mrs. Culkin’s lawyer, as a result of the decision CSR should now realise that it should pay compensation to victims who have contracted lung cancer due to asbestos exposure even if they have been exposed to another carcinogen, like cigarette smoking.
If you believe you have a claim, or simply want to know more about asbestos related injuries and claims, you should contact a solicitor for advice.