Asbestos and other latent onset disease litigation: Tips and traps
13th Feb 2020
Asbestos disease is an ongoing problem and its incidence still seems to be on the rise. For many years experts have believed that the peak of asbestos disease incidence would be in 2020. This is, of course, difficult to predict with any precision. Possible asbestos exposure has been identified in products which were not previously contemplated as being a risk to human health; Johnson & Johnson baby powder is one such example. Successful importation of asbestos materials into the country, following the ban on asbestos materials in 2003, has been another concern. What is clear, even if we have reached the peak of asbestos disease, is that there are many more decades over which it will continue to be diagnosed.
Various other toxic agents have been recognised by health experts. There has been a recent spate of diagnoses relating to silica and coal dust disease. Agrichemicals, such as Roundup, have been a catalyst for litigation in overseas jurisdictions. These other toxic agents may give rise to a whole new ‘wave’ of latent onset disease litigation.
There are numerous considerations in every case involving asbestos disease and other latent onset diseases. A case can involve multiple defendants, different jurisdictions, conflict of laws, various diseases and the element of urgency. These are some of the reasons why asbestos cases can be quite complex.
It is difficult to provide an exhaustive list of the fundamental matters that require consideration in every case. However, below I provide some ‘tips and traps’ which will hopefully assist to some degree.
It is important to emphasise urgency of action on the part of the practitioner. This cannot be overstated.
In many cases, life expectancy is extremely limited, which means that urgent steps need to be taken to protect a client’s interests. This can involve catching a same-day flight to take evidence from the client, filing court proceedings outside of registry hours and spending late nights and/or early mornings preparing documents at very short notice.
Sometimes it is necessary to apply for expedition of a trial. Typically, this is when the plaintiff’s life expectancy is probably (or even possibly) reduced. Sometimes, this is done at the commencement of proceedings; asbestos disease can be very unpredictable.
The lex loci delicti governs torts committed in Australia which have an interstate element: John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503;  HCA 36 at . Limitation provisions barring either right or remedy are substantive rather than procedural. Damages fall into the same category.
However, it is important to be abreast of any legislation which alters this position. For example, it may be that the laws of the jurisdiction in which the tort occurred will not be the laws of the jurisdiction which govern the limitation period.
Additionally, if exposure is identified in multiple jurisdictions, it is important to consider any possible conflict of laws. Claims in certain jurisdictions can be barred subject to procedural requirements being satisfied. Issues of plenary power can arise: Attorney-General (WA) v Marquet (2003) 217 CLR 545. Timely strategic decisions often need to be made in such circumstances.
The general rule in terms recovery of damages is that they are ‘full and final’ or ‘once and for all’: Todorovic v Waller (1981) 150 CLR 402 at 412.
However, in certain jurisdictions, provisional damages are available. This means that plaintiffs can recover damages for asbestos disease on one occasion and recover damages again if they are diagnosed with another asbestos condition. Amaca Pty Limited v Banton  NSWCA 336 was the seminal case. Mr Banton recovered damages for asbestosis. He later developed mesothelioma and recovered additional damages.
These types of damages should be specifically claimed if they are available.
In certain jurisdictions, general damages can be preserved for the benefit of a plaintiff’s estate if appropriate court proceedings are filed in the plaintiff’s lifetime.
The above matters emphasise the need to act promptly so that the appropriate entitlements are protected and maximised for the client or the client’s estate.
Martin Rogalski is a Director/Principal Lawyer at Rogalski Lawyers. He is a compensation law expert and Accredited Specialist (personal injuries). In 2015, 2016 and 2017 he was recognised by Doyle’s Guide. In 2017 he was named a finalist for the Regional Lawyer of the Year award at the Lawyers Weekly – Australian Law Awards.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).