The plaintiff was diagnosed with mesothelioma in 2009. He alleged that he was exposed to asbestos dust during his childhood visits to a miniature railway located in the grounds of an orphanage. The plaintiff visited the site about six times with his parents in the 1970’s when he was four years old and played on the site and became covered in asbestos waste.
The plaintiff claimed that he inhaled asbestos fibres that caused or materially contributed to his disease. The asbestos dust and fibre was allegedly generated from waste material that was dumped by the defendant, a subsidiary of James Hardie & Co Pty Ltd.
Duty of Care and Breach
The plaintiff claimed that a duty of care arose in two ways:
“by dumping material that was known to be fatal if inhaled, the defendant created a danger and accordingly was required to take reasonable steps that no one would suffer a risk of injury which might be foreseeable from the danger”; and
the defendant supplied the asbestos cement waste “as a produce for the use by the owners of the orphanage or the operators of the railway for landfill and road construction” so that it owed a duty as “the supplier of a product, supplied for a known purpose, containing a danger from such use, of which the defendant knew or ought to have known”.
The plaintiff argued that the defendant was in breach of a duty of care owed to persons who visited the orphanage.
During the trial, the Court heard that the defendant had been dumping asbestos waste on the grounds of the orphanage where the waste was used as a base for the railway, to fill swamp land and to cover roads and tracks. The defendant argued the dumping of the asbestos waste was acceptable behaviour in the early 1970’s. This was despite the fact that in 1971 a safety officer employed by the defendant wrote an internal memo stating that the dumping was “unwise”. The company ignored the warnings and continued the dumping.
The Supreme Court of Western Australia held that it was reasonably foreseeable that children would visit the grounds of the orphanage and the miniature railway was obviously an attraction for young children. It was an obvious attraction due to the open space of the grounds, the oval and the proximity to the river and the swampy bush areas forming parts of the grounds. The Court said it was foreseeable that children, particularly small children, would play in the white asbestos dust. It was held that the defendant did owe visitors of the orphanage site a duty of care.
The defendant was found to be in breach of its duty of care by dumping asbestos cement waste at the orphanage on the basis of various reasons, including:
that it was reasonably foreseeable there was a risk of personal injury from the exposure to the asbestos cement waste;
the orphanage was not a waste disposal site and consequently, it was not controlled with a view to manage the risk of harm from exposure to the asbestos dust and fibre; and
there were alternative means of disposing of the asbestos cement waste. It was not necessary to dispose the waste material at the orphanage and other sites were available that would not unnecessarily expose children to the risk of asbestos dust and fibres.
A West Australian Supreme Court judge awarded the plaintiff damages assessed at $2,068,396.93. This is the highest award for an asbestos case in Western Australian history.
When one considers the facts of this case it leaves one to ponder how the defendant could have been so careless in dumping asbestos at grounds used by children as a playground, even after receiving advice from its own safety expert that it was dangerous and such activity should cease. The defendant knew small amounts of asbestos could be deadly and yet it continued with the dumping.
This case reveals some of the worst type of corporate behaviour seen in Western Australia. To make matters worse for the plaintiff, the defendant denied liability for the claim and refused to pay compensation even after the plaintiff initiated Court proceedings. The defendant was willing to fight this case all the way to a Supreme Court trial even though liability was obvious given the facts of this case.
A frightening question which arises from this case is, what other sites that were accessible to the public in Western Australia were also used as “dumping grounds” for asbestos waste? The plaintiff’s lawyer commented to the media after the trial had concluded that evidence provided at the trial demonstrated James Hardie dumped its asbestos waste at sites all around Australia.
This is certainly a justifiable victory for the plaintiff and the plaintiff’s family after a lengthy legal battle but no amount of compensation will truly compensate the plaintiff for what he has endured.
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