The Court Cases

The history of asbestos in Australia and around the world, is a history of cover up with companies choosing to ignore the dangers for as long as possible. Even when they did acknowledge any liability for occupational disease, monetary settlements ensured workers did not talk publicly about their case.


Historian Lenore Layman describes how this exposed major failings not just in the industry, but also in the governments who bore responsibility for regulation and monitoring.


The unions weren’t fully aware of the dimensions of the problem posed by asbestos. As historian Lenore Layman explains, their strategies of either advising members to avoid the workplaces or accepting dirt and danger money, didn’t do enough to minimise the risks for their members.


CSR’s attempt to profit from asbestos by mining blue asbestos in Wittenoom was an expensive failure. Like James Hardie, it has had to deal with the deadly legacy of the impact of exposure to the mineral on its workers, but its approach to compensation was quite different. As historian Gideon Haigh explains, in contrast to the drawn out litigation of the James Hardie cases, CSR was rather more willing to settle its cases.


Wally Simpson Case
In 1984 Peter Gordon, a lawyer practising in Victoria, was involved in the first successful negligence claim for damages brought by a mesothelioma victim. This brought him into contact with Robert Vojakovic of the Perth-based Asbestos Diseases Society. The ADS had 360 former Wittenoom workers on its books who were suffering from asbestos diseases and seeking compensation from the CSR subsidiary Midalco, formerly ABA. The first case concerned former Wittenoom mill worker Wally Simpson who was suffering from asbestosis. But as Peter Gordon explains, this ultimately unsuccessful case turned out to be a gruelling legal battle, which almost ruined law firm.


Klaus Rabenault Case
After losing the Simpson case Slater & Gordon not only found itself deeply in debt but also faced criticism from both CSR and the WA State Government Insurance Office, which waged a media and public relations campaign against the firm. They accused it of falsely inflating the hopes of asbestos victims by bringing expensive cases that could never be won. However the next case to present itself in 1987 was outside the Western Australian jurisdiction and involved ex-Wittenoom worker and then Victorian resident Klaus Rabenault, now suffering from mesothelioma. As lawyer Peter Gordon explains, this gave Slater & Gordon the opportunity to run a Wittenoom asbestos case before a jury in Melbourne.


Heys and Barrow Case
The so-called Heys and Barrow case involved two former Wittenoom workers Peter Heys and Tim Barrow who were suffering from mesothelioma. Their cases were unusual as for the first time they were contending that both a company, CSR, and its subsidiary, Australian Blue Asbestos (later Midalco) bore liability for diseases that emerged many years after the worker’s original exposure. According to lawyer Peter Gordon, the success of this case made it a significant legal landmark in occupational health and safety in Australia.


James Hardie
The mining process was just the first stage of damaging contact with asbestos. The mineral was then manufactured into the myriad materials that helped build the houses and workplaces of postwar Australia. So with the first wave of asbestos-related diseases washing through the mining workforce, a second wave struck the manufacturing and construction workers who made or worked with asbestos products. The company which dominated asbestos manufacturing in Australia was James Hardie Industries. The battles for compensation here have been long and painful with the company to this day fighting to minimise liability.Part of the challenge in trying to establish the case for compensation in relation to asbestos-related disease has been the impenetrable nature of the company structure of James Hardie Industries. According to historian Gideon Haigh, the company most closely identified with asbestos manufacture in Australia has presented a moving target which has made it difficult to uncover a clear line of responsibility.


In the 1990s under Chief Executive Keith Bardon, James Hardie shifted its centre of operations to the United States and as a result the company culture changed, becoming more aligned with American workplace customs and practices. As historian Gideon Haigh explains, the Americans had different ways of dealing with the sorts of corporate problems posed by asbestos.


As the years passed, the structural and managerial changes had so transformed James Hardie that there were no longer any direct connections with the company’s past – beyond the workers who were continuing to suffer the legacy of their workplace exposure to asbestos so many years ago.  Historian Gideon Haigh recounts how this remoteness of the modern board from the company’s past history impacted on its attitude towards Hardie’s ongoing liabilities.


The changes in the company structure and board attitudes flowed through to the company’s approach to its asbestos liabilities. As historian Gideon Haigh explains, in the 1990s James Hardie began to change tack in its approach to litigation over compensation cases, being less inclined to settle and taking a more aggressive stance in court.


The main aim of James Hardie in the 1990s was to disguise its connection with asbestos and to minimise as much as possible its exposure to compensation claims. In 2001 the company set up the Medical Research Compensation Fund, which, far from being a vehicle for company largesse, as lawyer Peter Gordon explains.


The transformation of the James Hardie company into a global brand changed the nature of what had previously been a family-owned Australian icon. But according to historian Gideon Haigh, because it was now being governed from its new headquarters in the US, it was unaware of how its more aggressive American-style approach to its compensation problems was antagonising the Australian public.There were many factors that came together to create the public relations disaster that James Hardie faced over its approach to its asbestos liabilities. In Gideon Haigh’s view, generational change and an inward looking board influenced the capacity of the board to steer the company confidently through this turbulent period.
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In the 21st century the scourge of asbestos has moved to a new cohort – the tradespeople or weekend handymen and women who worked with asbestos products in the home in the 1970s and 1980s. As lawyer Peter Gordon notes, this so-called third wave has opened up a new area of compensation litigation and once again pushed James Hardie into the public spotlight.


Fighting the Cases
The longest running legal battle for compensation for victims of asbestos-related diseases has been with James Hardie. This company had a venerable history in Australia as a manufacturer of asbestos products, which found their way into factories and homes all around the country in the building boom of the middle of the last century. By the 1990s it was becoming clear that former James Hardie workers were in the grips of an epidemic of asbestos-related diseases and as lawyer Peter Gordon recalls the company began to employ a range of strategies to minimise its exposure to what promised to be a compensation nightmare.


Greg Combet was involved with asbestos compensation cases from the early 1980s through his work with the Occupational Health Safety Centre in the western suburbs of Sydney. From his perspective within the trade unions, he experienced the frustration of trying to fight for compensation and prove through the courts that exposure to asbestos at work had caused occupational diseases.
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James Hardie’s complex tactics in its attempts to evade its responsibilities to its workers eventually so tried the patience of the Carr Labor government in New South Wales that it decided to act. In 2004 it set up an inquiry into James Hardie headed by David Jackson QC.The Jackson Inquiry was a landmark in the history of asbestos as it was the first time a state government became so directly involved in the battle for compensation for asbestos workers. The Jackson Inquiry was a forensic investigation of James Hardie’s corporate arrangements and the extent to which the company was trying to minimise its exposure to its liabilities resulting from its many years as a manufacturer and supplier of asbestos products.

Greg Combet, at that time Secretary of the Australian Council of Trade Unions, was appointed as the Carr government’s representative in the negotiations which eventually led to a successful settlement.
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Much information came to light during the Jackson Inquiry which exposed the extent to which the company appeared to be impervious to the plight of its former workers. According to former ACTU Secretary Greg Combet the attitude of the company merely strengthened the resolve of those taking part in the fight for compensation.


Bernie Banton case
For many, the local hero of the Jackson Inquiry was former James Hardie employee Bernie Banton. Despite suffering from asbestosis, and subsequently mesothelioma, his fighting spirit and determination to see justice done gave him the strength to take a high profile role in the Jackson Inquiry. Greg Combet worked closely with Bernie Banton as secretary of the Australian Council of Trade Unions which was heavily involved in the fight for compensation for James Hardie workers. He recalls that amongst all the lawyers and negotiators, Bernie Banton captured public attention by reminding people about the real cost in human terms of asbestos-related diseases.


If proving company liability has been hard in relation to industrial exposure to asbestos, the difficulties have been compounded in the case of domestic exposure. The Hennell and Moss case illustrated some of the challenges lawyers would face in trying to hold companies accountable when long-ago purchasers of their products subsequently fell ill.