An Adelaide man has won a landmark $3 million compensation case against former asbestos manufacturer James Hardie after he developed a rare form of mesothelioma.
Mathew Werfel was exposed to the deadly material while pulling down fences and renovating two homes between the late 1990s and early 2000s, unaware that they contained asbestos.
“I was painting the exterior of the house, in particular, the eaves of the house,” he told 7.30.
“It was an older home and it required sanding, painting and so it created a lot of dust. It was all over me, my hair, my clothes.
He now has a warning for any home handyman.
“Home renovators beware, because you just don’t know where it is,” he said.
“The difference between what you would consider to be gyprock or asbestos sheeting, you don’t know, you need it to be tested.
“That’s the only way to really know whether it contains asbestos or not.”
Forty-two-year-old Mr Werfel was diagnosed in 2017 after he discovered a lump on the inside of his right leg.
There was no wheezing or shortness of breath because the tumour wasn’t in his lungs, but one of the rare case where it develops in the testicles.
He is what is known as the third wave of asbestos victims.
The first were the workers involved in mining and milling the product, or who worked in asbestos factories.
The second wave referred to tradesmen who used the product.
Now Mr Werfel represents the third wave, people who come into contact with the asbestos which is already present in the home, and are carrying out renovations.
By the time he had been exposed to asbestos, James Hardie had already stopped making products with asbestos.
But his lawyer, Annie Hoffman, argued that James Hardie should have done more to publicly alert potential home renovators to the danger of the material it had manufactured.
“We’ve likened the sort of campaign that James Hardie should have run to other public awareness campaigns like the Grim Reaper AIDS campaign, as well as the Slip, Slop, Slap skin cancer campaign,” she told 7.30.
After a long campaign by people like Bernie Banton, James Hardie financed the Asbestos Injuries Compensation Foundation (AICF) for people who contracted asbestos-related diseases.
KMPG estimates James Hardie’s liabilities at more than $1.8 billion, but concedes that there is considerable uncertainty because future claims cannot be known.
University of Wollongong accounting school Associate Professor Lee Moerman said home renovator claims on the fund are currently at record levels.
“Of those, 374 were claimed against James Hardie and 229 of those claims were for renovators.”
And that does not factor in any significant surge in third-wave claims.
“If you look at the statistics from James Hardie and their actuarial report, you’d have to think that may increase,” Ms Moerman said.
“It’s gone up from 50 per cent to 60 per cent.
“It’s a bit of crystal ball gazing but there’s a lot of fibro houses out there and there’s a lot of fibro in the environment.”
In its defence, James Hardie said Mr Werfel had been a smoker.
It also argued there was insufficient evidence to link asbestos exposure to his rare form of mesothelioma.
But on Tuesday the South Australian Employment Tribunal ruled that James Hardie failed to take reasonable steps to minimise Mr Werfel’s risk of exposure.
“The potential future liability for James Hardie is extraordinary,” Ms Hoffman said.
“It will establish a principle that James Hardie ought to be held liable in circumstances where persons have come into contact with their product in the years after they’ve been installed.”
The payment took into account Mr Werfel’s relatively young age and his expected lost future income.
“People have been fighting this fight for decades, including people like Bernie Banton, and it’s time that [James Hardie] just take responsibility for what they’ve done, not only to me but to all of those people before me and the ones to come into the future.
“It’s been two years of pain and stress for me and my wife, my children — having to tell three young girls that their dad has cancer and explain what that means when I don’t even know myself.
“It’s been very difficult.”
Now he just cherishes the time he spends with his wife and three young daughters.
He doesn’t know how much longer he has left with them.
“I pretty much know it’s a death sentence,” he said.
“I just can’t imagine not being around for my family.
7 August, 2019