NEWCASTLE Dockyard and asbestos manufacturer James Hardie knew from 1962 that thousands of dockyard workers risked early death from asbestosis, mesothelioma and lung cancer.
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Now the State of NSW, on behalf of the Dockyard, and Amaca Pty Ltd, on behalf of James Hardie, are arguing their share of responsibility for compensation, in a NSW Dust Diseases Tribunal case involving eight former Newcastle Dockyard workers.
Judge William Kearns slammed James Hardie for “decades of silence" that left thousands of Newcastle Dockyard workers “the most vulnerable” and “most uninformed of all people dealing with” asbestos products needed for ship building.
He found Newcastle Dockyard and its owner, the State of NSW, knew the dangers of asbestos in 1962 because of a Dockyard asbestos case in the Industrial Relations Commission.
James Hardie knew from the early 1950s.
In a decision on May 20 Judge Kearns found the State responsible for the lion’s share of compensation that has already been paid to the eight workers, at an average of $400,000 to each worker, with Amaca responsible for up to 40 per cent of compensation in the case of one worker.
A number of the eight workers have already died.
But any court case is too late for Mariea Foxford, of Merewether, whose husband John died of mesothelioma in 2007 after making a statement tendered in the case of the eight Dockyard workers, but before he could seek compensation following his years as a Newcastle Dockyard purchasing officer.
“He was too sick, too quickly, to claim, and it was too much for me at the time to even think about a solicitor,” Mrs Foxford said.
“It was terrible. It’s a terrible way to die. He would have been here for probably another 20 years if he didn’t get mesothelioma, because he was always fit as a fiddle. The doctor told him he had it and he sort of fell to pieces.”
For Ken Searle, of Tighes Hill, who gave evidence in the case, the legacy of years at the Dockyard from 1973 is pleural plaque – a marker of past asbestos exposure – and the on-going threat of a more serious asbestos-related condition.
“I remember being told by a foreman that ‘Asbestos won’t hurt you. There’s nothing wrong with it’,” Mr Searle said.
“He was diagnosed with mesothelioma and bang, he was dead.
“There was no concern about the asbestos when I started. The dust would fly up in the air and they’d use a broom to just push it about.”
A doctor’s confirmation that he had pleural plaque was a shock, but “I figure if I don’t die from that I’ll go from something else, won’t I?”
He knew a lot of former Dockyard workers who “don’t go to the doctor because they don’t want to know they’ve got it”.
Mr Searle, 69, was a friend of the late Kevin Allars, the lead plaintiff in the case of the eight workers.
“He was about eight years younger than me. He was a fit bloke and a surfer. He came out of the surf one day saying he couldn’t breathe. A doctor told him to go home and get his affairs in order because he only had two months to live. We buried him a few months later,” Mr Searle said.
In a speech in 2013 Judge Kearns said more than 200 people who sought compensation under a NSW Dust Diseases Tribunal process from 2005 were dead before their matters were completed.
Newcastle lawyer Gerard McMahon, from Turner Freeman, has handled up to 30 asbestos cases a year for the past 16 years, including many former Dockyard cases.
He represented Mr Allars and two of the other eight Dockyard workers in the case before Judge Kearns, that returns to the tribunal next week. Two of the three men are dead.
He said the case was “a positive thing” because it might give some guidance in future cases where the State of NSW, companies like Amaca and other defendants argue their share of responsibility in compensation cases.
While there had been hundreds of Newcastle Dockyard cases, the numbers were declining because of the time since asbestos was phased out, between 1975 and 1977.
The number of “third wave” cases – where people including the children of workers developed asbestos-related conditions – had increased over the past 15 years, he said.
The general building industry was “probably the biggest killer” when it came to asbestos deaths, Mr McMahon said.
Asbestos Diseases Foundation of Australian president Barry Robson said James Hardie “demonstrates a corporate mindset that continues to see victims as a liability, rather than people”.
“I still get calls from workers that they’ve just been diagnosed,” he said.
About 700 Australians each year die of mesothelioma. They die, on average, about 155 days after they’re diagnosed, Mr Robson said.
“Asbestos-related conditions are a bigger killer than the road toll but you don’t hear enough about it, because it’s not a sexy disease.”