Eric's story: a victory for all asbestos victims

Every day we act for people suffering from asbestos-related illnesses. Each client's fight for justice presents unique challenges, requiring understanding, sensitivity and expertise.

But some of those challenges are bigger than others. In the case of our client Eric, the defendant raised a novel legal challenge. They refused to pay Eric's compensation after his case was settled and final orders were made. If their refusal was allowed to stand, it would have affected thousands of potential future cases.

Eric challenged that decision, and with our legal assistance, he won. It was a victory for all asbestos victims.

Eric’s story

At 60, Eric had his best years ahead of him: he was operating his own earthmoving business, travelling with his wife Deb, and spending time with his grandchildren.

Unfortunately for Eric, this was all turned upside down when he received a diagnosis of mesothelioma, the asbestos-caused cancer.

His doctors told him his condition was terminal.

Eric’s exposure to asbestos occurred while working as a demolition labourer in Brisbane in the 1990s, to asbestos products manufactured by Amaca Pty Ltd, a company formerly known as James Hardie Pty Ltd (“Amaca”).

Eric was exposed to asbestos at a time when employers knew the dangers of asbestos and should have enforced the use of appropriate personal protective equipment.

Eric’s compensation claim

“An employer owes an employee a duty of care to keep them free from a foreseeable risk of harm; in Eric’s case, the employer hasn’t done that”, explains Grace Fredericks.

As his prognosis was limited, Eric was entitled to a lump sum benefit through WorkCover Queensland, the state statutory workers compensation scheme in Queensland.

In addition to workers' compensation entitlements in Queensland, Eric had a right to pursue a common law claim for damages against Amaca in the courts.

Jonathan Walsh, Principal Lawyer at Maurice Blackburn, explains that “the knowledge of the extreme dangers of asbestos were very well known, yet Eric in the 1990’s removing a product from a building in Brisbane was never told about it”.

Due to Eric’s poor health, his common law claim was expedited and listed for trial within weeks of his deteriorating health. The matter was resolved only hours before the trial was due to commence.

However, following the settlement of Eric’s common law claim, Amaca refused to pay the settlement monies owed.

The James Hardie Trust Scheme

Amaca is one of several liable entities that formulate the James Hardie compensation scheme, established by the Asbestos Injuries Compensation Fund (the “AICF”) over twenty years ago.

The essence of why AICF refused to pay Eric’s settlement monies is the adoption of a alternate interpretation of their legal obligations to fund the asbestos liabilities of Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd), which were set when the scheme was established.

Unfortunately, Eric was caught up in this alternate approach, which would effectively avoid AICF’s obligations to fund Amaca liabilities and, in turn, ultimately people like Eric to pay them their full compensation.

After refusing to pay compensation to Eric, the AICF  then sought judicial advice on this issue in the NSW Supreme Court. It was determined that the AICF would be justified in not paying the settlement monies (via Amaca) to plaintiffs who have an entitlement to recover money through a workers’ compensation scheme.

Jonathan explains that if this judgement had stood, it would mean that “asbestos victims and workers could miss out on potentially millions of dollars in compensation.”

“Compensation rights and the amount of compensation that plaintiffs justifiably deserve is always under attack.”

Eric was one of a number of plaintiffs or potential plaintiffs with a right to pursue a common law claim against Amaca or another James Hardie-related entity who have received or are entitled to receive benefits under the Queensland workers’ compensation scheme or arguably any statutory scheme. Accordingly, the impact of the judicial advice was far-reaching and had significant implications.

In October 2024, we filed an appeal in the NSW Court of Appeal on behalf of Eric in relation to the judicial advice.  We’re committed to protecting the rights of thousands of workers and victims affected by asbestos diseases who are impacted by decisions like this.