On Friday 10 September 2021, the High Court of Australia rejected an application for special leave to appeal by James Hardie with respect to the decision of the Court of Appeal in South Australia in the matter of Werfel v. Amaca Pty Ltd.
Mr Werfel was diagnosed with malignant mesothelioma and successfully sued James Hardie in the Supreme Court of South Australia.
James Hardie appealed the decision in the Court of Appeal in South Australia and was mostly unsuccessful other than a reduction in the damages award from $3.08 million to $2.23 million.
The last possible avenue of appeal for James Hardie was an application for special leave to the High Court of Australia which was heard by the High Court on Friday 10 September and was refused.
The outcome for Mr Werfel is very significant and important for him and sets a very important precedent decision for future victims of asbestos disease who have been exposed to asbestos in similar circumstances.
Mr Werfel was exposed to asbestos when working as a teenager when undertaking work for a fencing contractor after he finished his high school education. He was also exposed to asbestos from undertaking home renovation work from sanding and painting walls which were made or constructed with James Hardie asbestos fibro.
The precedent set by Mr Werfel and his legal team has significant and wide-reaching implications for former asbestos manufacturers in Australia with James Hardie having the most exposure to future claims and cases due to this very important precedent decision.
Mr Werfel’s case and cases like his relate to what has commonly been referred to as the ‘third wave’ of asbestos victims involving people who have undertaken work such as home renovation and demolition work without knowing that the work they are doing is causing them to be exposed to asbestos dust.
One of the key aspects or features of Mr Werfel’s case was the successful allegation of negligence against James Hardie that it failed to warn the general public of the health dangers and risks of undertaking building or renovation work on buildings which might or do contain asbestos in the in situ or pre-existing building structure such as fibro walls, ceilings, soffits and fences.
By the 1950’s, James Hardie was listed on the Sydney Stock Exchange and became the largest manufacturer and distributor of building products, insulation, pipes and brake linings containing asbestos and operated asbestos plants in South Australia, Queensland, Western Australia and Victoria.
James Hardie continued to manufacture and supply its various asbestos products until the early to mid 1980’s.
According to the information released by the James Hardie Compensation Fund which is known as the Asbestos Injuries Compensation Fund (“AICF”), James Hardie received 278 claims for victims of Mesothelioma as well as 93 claims for victims of asbestosis, 18 claims for asbestos related lung cancer, 32 claims for asbestos related pleural disease.
For the 2020/2021 period, a total of 382 claims of mesothelioma were reported which is a decrease of 13% compared with the previous year and 9% below what was expected.
