October 24, 2007 05:58am
LAWYERS for asbestos victims fear the new board of the James Hardie subsidiary Amaca is using a WA case to attempt to limit the number of successful lawsuits.
Denis Walter John Moss and his wife, Patricia Margaret Hannell, won a case against Amaca Pty Ltd, the James Hardie asbestos-producing subsidiary, in December last year and were awarded $5million.
Mr Moss, who died in June, was exposed to asbestos in the mid-1980s and 1990 as a result of occasional work on asbestos cement products in and around his home. He was diagnosed with mesothelioma in November 2005.
Amaca appealed against the West Australian Supreme Court decision earlier this year to award damages. The Court of Appeal overturned the trial judge's decision, stating Amaca did not breach its duty of care by failing to advertise the dangers of asbestos in the mass media.
Today in Perth, Mrs Hannell is seeking special leave to appeal against that decision in the High Court.
For decades, the key tenet of asbestos disease litigation, particularly in New South Wales, has been the finding by the courts that James Hardie had actual knowledge of the dangers of asbestos as early as 1938 but did not do enough toprotect workers and warn customers.
Slater and Gordon asbestos litigation specialist Tanya Segelov said it was possible the new Amaca board - appointed by James Hardie and the NSW Government - was testing the water in Western Australia, and if successful, might take a harder line in other jurisdictions.
If Amaca won such cases, it could reduce the ability of thousands of future victims to obtain compensation.