Landmark Case for Third Wave Asbestos Claims

In a landmark case, The Asbestos Injuries Compensation Fund (AICF) settled yesterday with third-wave mesothelioma sufferer, Stephen Wickham. The AICFwas formed in 2006 in response to the ruling which forced James Hardie Industries to set aside money for future compensation claims for asbestos victims.

This settlement is significant as it has the potential to set a precedent on whether the fund is responsible for similar cases of third-wave asbestos related diseases. To date, the fund has primarily focused on first wave sufferers (those who conducted work with the raw materials in mines) and second wave victims (generally tradesmen who used asbestos containing material). Presently, many of the new cases which are being diagnosed belong to the third wave – those unknowingly exposed either as a bystander or in conducting home renovations.

The case was also momentous in that for the first time, a former managing director of James Hardie gave evidence in court. David MacFarlane was the Managing Director of the company between 1978 and 1989. He told the hearing that in 1978, when the decision was made to eliminate asbestos from James Hardie products, he thought that the health dangers about the impacts of the building materials were “a media beat-up”.  Instead, he claimed that the decision was primarily motivated by commercial reasons such as the increasing financial costs associated with asbestos production. It was also revealed in documents shown before the court that James Hardie knew from at least the 1960s that there was no safe level of asbestos exposure. However, research into the creation of asbestos-free products only commenced in response to heightened media exposure.

Overall, this settlement provides hope for all future third wave victims seeking compensation. Nevertheless, while the provision of money is welcome, it does not bring back their quality of life. As asbestos related diseases are generally incurable, prevention is always better than compensation. As such, if you are conducting home renovations and suspect that you may be dealing with asbestos containing materials, it is better to have the materials tested to determine their composition. In the cases where asbestos is discovered, you can ensure that the material is handled appropriately to minimise risk. And this is one of the take home messages of the case in the words of Tanya Segelov, Mr Wickham’s lawyer, “With so much asbestos in the community, until either the asbestos is removed or there is a proper national public awareness campaign whereby people can identify fibro and know the precautions to be taken, then we will still see people being exposed.”


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