Record $3 million damages to an asbestos victim underscores need to identify latent workplace risks

The devastating effects of asbestos continue to be felt by many Australians.

Despite the ban on asbestos products in Australia, asbestos remains a work health and safety issue as it is still present in buildings (generally built before 1990) and is sometimes found in materials imported from countries that do not have work health and safety laws that are as stringent as those in Australia.

In addition to the ongoing issue of asbestos, there has been increased attention on other latent risks in workplaces with a number of recent diagnoses of workplace-related illnesses caused by crystalline silica which is found in sand, stone, concrete and mortar; silicosis has emerged as a critical risk to workers' health which may equal or even eclipse the health crisis causes by asbestos.

The recent record award of damages in Werfel v Amaca v The State of SA [2019] SAET 159 highlights the need to identify the less obvious risks in the workplace and implement the appropriate controls.

Victim's exposure to asbestos dust

In this case, Matthew Werfel, a mesothelioma sufferer and third wave asbestos victim, was awarded damages totalling $3,077,187 after being exposed to asbestos products between 1994 and 2005.

Mr Werfel was first exposed to asbestos as a youth in 1994 to 1997 while working as a fencing contractor where he inhaled crocidolite, amosite and chrysotile asbestos dust from cutting and drilling corrugated asbestos cement sheets and capping manufactured by Amaca.

Further exposure to asbestos arouse in late 2000 and/or 2001 and again in 2004 and/or 2005, when Mr Werfel was renovating and painting his house where he cut, drilled and sanded flat asbestos cement sheets and planks manufactured by Amaca which exposed him to amosite and chrysotile asbestos dust.

During these periods, Mr Werfel said he had not known that the material he was cutting, drilling and sanding contained asbestos. He did not wear a respirator, did not use any protective equipment and did not take any other measure to limit his exposure to asbestos fibres.

In 2017, Mr Werfel was diagnosed with a rare form of mesothelioma (a type of cancer that can develop after long-term exposure to asbestos) with a life expectancy of three years.

Findings

The South Australian Employment Tribunal accepted that it is more likely than not that the material containing asbestos that Mr Werfel worked on contained asbestos manufactured by Amaca.

It held that Amaca breached its duty of care by failing to take the available reasonable steps to minimise the risk, and that breach caused, or materially contributed to, Mr Werfel's dust disease.

In reaching its findings, the Tribunal found that Amaca failed to warn the public about the risks associated with its products and accordingly, Australians continued to be exposed to asbestos fibres without their knowledge.

Furthermore, it considered that the magnitude of the risk to members of this class contracting mesothelioma "was vast" such that the consequences of the risk were the deaths of several Australians.

Deputy President Judge Farrell noted the probability of risk occurring was certain and Amaca had knowledge of the rising numbers of deaths. Consequently, it was suggested that Amaca had resources that it could and should have utilised in order to minimise or obviate the risk of death to this class.

Deputy President Judge Farrell emphasised that although many Australians in the 1990s to present might have a "general appreciation that asbestos is bad, such knowledge was and remains of no practical assistance to them in avoiding the risk posed by asbestos if they do not know what is it, what is looks like and where it might be found."

Amaca, as a reasonable manufacturer of a potentially lethal mass produced product, should have:

• placed warnings on its corrugated asbestos cement building products;
• ceased incorporating asbestos into building products from the late 1960s;
• run a public awareness campaign from the mid-1980s; and
• distanced itself from asbestos.

What does this mean for employers and PCBUs?

Employers and persons conducting businesses or undertakings (PBCUs) have strict duties under work health and safety law to ensure, so far as reasonably practicable, the health and safety of workers / employee and other persons who may be impacted by the business or undertaking. This necessarily requires employers / PCBUS to identify and anticipate latent hazards in the workplace and implementing controls to either eliminate or limit the hazard.

As identified in SafeWork Australia's Code of Practice – How to Manage Work Health and Safety Risks, employers / PCBUs should:

• understand how work is actually performed in practice;
• consult with workers;
• analyse records of health monitoring, workplace incidents, near misses, worker complaints or sick leave; and
• keep up to date with information and advice about hazards and risks relevant to your industry and types of work undertaking in the workplace available from regulators, industry associations, unions, technical specialists and safety consultants,

to identify emerging workplace hazards and implement controls before they pose a risk to health and safety.