Ben Hills investigates

First he took aspirin, then he inhaled steam, then his doctor gave him some antibiotics. But there was no relief from the pain and the shortness of breath, so one day when he found himself gasping for air after the exertion of picking up a parcel from the floor, Reg Day went for a CAT scan and learnt a new word mesothelioma.

“I couldn’t believe it, I couldn’t believe it was happening to me,” he gasps, in between raucous fits of coughing, “The doctor said I might have only six weeks, or I might get lucky and last for two years.”

That deadly diagnosis was 15 months ago, in November 1999. Day, a knockabout kind of guy who lives with his wife Eileen at Seven Hills, understands that at the age of only 54 he may not live to see another Christmas with his kids.

He is another victim of a disease that a generation ago was rarer in Australia than leprosy, but has today become a virulent plague that claims 10 new victims every week. Two thousand men, women and children are already doomed to die of this man-made disease whose cause has been known for 40 years, but for which scientists still have no cure.

Mesothelioma is a turbocharged cancer of the lining of the lung and abdomen, which kills half its victims within eight months of diagnosis. It is the deadliest of a constellation of conditions caused by inhaling microscopic airborne fibres of asbestos.

Australia, says Professor Douglas Henderson of Flinders University, an international expert in asbestos disease, has among the highest per capita rates of mesothelioma in the world and that includes Sweden where more people, it is said, die of asbestos than on the roads. By 2020, Henderson estimates, there will be up to 39,000 Australians either dead or dying of asbestos-caused cancers.

There is no known “safe” level of exposure to asbestos, and the disease can strike up to 50 years later. No-one knows why some people get it, and some people don’t. Reg Day had to rack his brains to remember how he could have breathed in the deadly dust it was when he was a teenager nearly 40 years before, and he was helping his father build chicken-sheds.

They were using an asbestos-impregnated material called Super Six, which was not only cheaper and lighter than tin or timber, it was resistant to the corrosive effect of chicken manure. Chook farmers loved it. Reg and his dad happily hammered and sawed away at the planks with power tools, oblivious to the particles they were inhaling.

At that stage there were no warnings about asbestos not because the companies around the world which were mining and manufacturing it did not know it was dangerous, but because (as judgments in countless court cases have shown) they chose not to tell their workers or customers. In Day’s case, as in hundreds of others, the accusing finger pointed to James Hardie Industries, Australia’s largest manufacturer of asbestos cement panels, pipes, brake linings and other products.

Founded by a Scottish leather-goods maker, James Hardie pioneered asbestos manufacturing in Australia when, using Swiss technology, it opened a factory at Camellia in Sydney’s west in 1916. The company was called James Hardie Asbestos until 1979, and proudly named its headquarters in York Street Asbestos House.

Right up until 1986 long after the dangers of asbestos were well documented, and multimillion-dollar compensation awards had been made to victims in United States courts, the company continued to manufacture asbestos, and to deny its products could kill.

Australia embraced the “miracle fibre of the 20th century”, as the advertising slogan went, more enthusiastically than any other country, bar France, England and the US. Deposits were mined in Tasmania, in Western Australia’s Pilbara, and at Baryulgil in northern NSW a mine owned by James Hardie with a largely Aboriginal workforce.

In the decade after World War I, half the houses built in NSW were made of it. Because of its unique heat-resistant properties it was used in a vast array of products from wine filters to brake linings, ironing mats, water pipes, gas-masks, pianos, even cigarette filters.

Other materials could do the job James Hardie experimented with fibres such as glass, cellulose and diatomaceous earth as early as the 1950s. But, according to evidence in several trials, asbestos was far more profitable so the company did not switch to alternate materials until the late 1980s.

Today James Hardie is paying the price. Now a publicly listed multinational building products operation with its “operational headquarters” in Mission Viejo, California, it has what plaintiffs’ lawyers call deep pockets a market capitalisation of $1.5 billion. It has been inundated with litigation.

Day became just one of about 2,000 people to sue James Hardie for its negligence in not warning him of the dangers of using asbestos 40 per cent of all asbestos claims lodged in Australia. He won an out-of-court settlement which like almost all the hundreds of payouts the company has made over the years is covered by a secrecy agreement.

All we do know is that the company revealed last week that it has paid out a total of $130 million to settle about 1,600 claims an average of about $80,000 a case. However many of these claims relate to asbestosis, a debilitating but not invariably fatal condition.

The largest-known payout involving James Hardie was in June last year when a Melbourne lawyer, Ken Beruldsen, was awarded $1.25 million when he was diagnosed with mesothelioma 36 years after he worked for a few weeks during his university vacation at an asbestos cement pipe factory in Sunshine.

James Hardie’s chief executive, Peter Macdonald, said that another 300 to 400 claims were still pending, and announced that the company was folding the liabilities of its two asbestos subsidiaries into a foundation with an investment portfolio of $293 million, which he said would be enough to meet all future claims.

However, lawyers of victims, who have spent a decade and a half and tens of millions of dollars fighting asbestos companies, are suspicious that this may be an attempt by James Hardie to limit its liabilities. Said Peter Gordon of Slater and Gordon, which is fighting for compensation for more than 100 people with asbestos-caused cancers: “If they intend to close down those companies [the asbestos subsidiaries] and then say they have no assets to compensate the victims, I will be down on them like a wolf on the fold.”

Some, Day for one, would say that no amount of money can compensate for the peculiarly horrible way in which mesothelioma patients die. One victim has described it as like having your lungs slowly filled with wet concrete. There is no cure, and powerful narcotics like morphine provide the only relief.

At first, it was James Hardie’s workers at the plant in Camellia (nicknamed “the geriatric factory”, according to one witness) who became ill from their exposure to asbestos dust. The first known death, and the first known compensation claim against the company, occurred about 1960, almost three decades before it halted asbestos manufacture.

Then, tradesmen such as plumbers and electricians who used asbestos lagging, garage mechanics who worked on asbestos-lined brakes made by Hardie-Ferodo, carpenters and builders such as Day who worked with asbestos cement, began to contract asbestos disease and to sue the company for causing it.

Then finally, last year, the first of the company’s retail customers won a landmark case which opened the doors of the courts to any of the millions of Australian handymen who used James Hardie’s products and contracted asbestos disease. Helene Edwards, a 58-year-old South Australian nurse, was awarded $800,000 compensation against the company for causing the mesothelioma which is killing her.

More than 20 years ago, Edwards and her father had spent a few weeks giving the spare bedroom of their farmhouse at Penola, 200 kilometres south of Adelaide, a facelift so they could take in guests. Edwards did not even know that the Hardiflex panels they were sawing and hammering away at contained asbestos not until November 1999 when she was diagnosed with mesothelioma.

“I was in a state of shock and denial,” she said. “I had never heard of mesothelioma. I thought I would live forever my father died a few days short of his 90th birthday, and my mother was in her 80s.” Edwards says she is doing well after a radical experimental operation in which the membranes around her lungs were removed but she knows she is living on borrowed time.

Edwards says the award saved the farm and enabled her husband Graeme to stop working to be with her for her last months. She is also pleased at the precedent her case set she knows of six other retail customers, all of them women, who are also considering suing because of their asbestos disease.

Last year also saw the first ground-breaking court victory by a waterside worker with asbestos disease not against James Hardie, but against the Commonwealth of Australia which was held to be legally liable as his employer.

Ron Gibson, 67, a wharfie for more than 30 years, was awarded $100,000 by the NSW Dust Diseases Tribunal for the asbestosis he contracted on the Sydney wharves.

Gibson was one of the men who unloaded the asbestos which was imported into NSW, mainly for the operations of James Hardie and CSR Ltd, from CSR’s asbestos mine at Wittenoom in Western Australia, from South Africa and from Canada. At the height of the trade in 1983, 75,000 tonnes came across the docks, often in the most deplorable conditions.

Gibson remembers labouring for days on end in the gloomy holds of rust-bucket freighters, wrestling the 45-kilogram (100 pound) jute sacks of asbestos into rope slings to be hoisted ashore. The hooks they used often pierced the sacks, and as the bags rose into the air, asbestos showered like heavy snow onto the men underneath.

“I’m a bit crook now, short of breath and gasping and so on,” said Gibson “But I’m a lot better off than a lot of my mates who are dead. I worry about that, I do, I worry about that mesothelioma.”

Because of men like Gibson, the Maritime Union of Australia is fighting to stop the last trickle of asbestos which extraordinarily is still coming into Australia. In November it placed a ban on 1,500 tonnes of asbestos imported every year for the Bendix Mintex company which makes asbestos brake and clutch linings at a factory at Ballarat in Victoria.

James Hardie has fought the few cases against it which have come to court. Macdonald believes that the company “operated with the best of intentions and with the best of knowledge at all times”. However, court records and judgments show otherwise.

The most damaging witness against the company has been Peter Russell, a former James Hardie executive now living in retirement at Airlie Beach in Queensland. Russell worked for the company for more than 20 years, including a stint from 1961 to 1964 as its safety officer, based at the Camellia asbestos factory, before he retired declaring “I could not live with that on my conscience any longer”.

Russell has given evidence in a number of cases that although the company did devote “considerable effort and money” to trying to mitigate the asbestos dust hazard, it was not enough. It was sometimes so bad that workers in the personnel office 200 metres away would ring to complain about the “snow storm” it produced.

Russell frequently measured asbestos particles in the air at eight times what was then regarded as the “safe” level asbestos particles were detected three kilometres away, and 30 to 50 tonnes of waste were dumped as landfill every day around the district.

Russell gave evidence that when he was safety officer there were no warnings to or adequate medical checks of the workforce of 600, in spite of the fact that by 1964, 20 cases of asbestos disease had come to light. Conditions were so bad that in 1961 there was a “mild panic” when James Hardie’s insurance against workers’ compensation and common law claims was cancelled.

Russell said the company was well aware of the dangers of asbestos it kept confidential files which contained overseas reports on asbestos cancer, the results of Health Department inspections of its facilities, and the case histories of workers who had been “dusted”.

He said that he repeatedly urged the company to improve working conditions and to put warnings on its products, including a letter to senior management in 1964 in which he wrote that asbestos was “one of the most dangerous of all industrial poisons” and warned, prophetically: “The company could, in future, become a sitting duck for claims not only for … asbestosis, but also for cases of lung cancer and possibly heart conditions.”

The company’s reaction? “My warnings to company executives were brushed off. It seemed to me their only concern was covering their backside. The prime concern of James Hardie during this period was its bottom line,” he said.

Macdonald, who has been with the company for eight years, rejects these claims, although he does concede: “What was done, with the best knowledge at the time, was insufficient, because people became unwell. No-one is proud of that fact.”

Publishing Info

Pub: Sydney Morning Herald
Pub date: Tuesday 27 February 2001
Edition: Late
Section: News And Features
Sub section: Insight
Page: 11
Word count: 2379
Classification: Health/Diseases/Occupational Diseases/Asbestosis, Company/James Hardie Industries Ltd, Law/Compensation
Geographic area: Australia International
Keywords: Timeline
Images: “A Very Good Business Published by James Hardie Industries, 1987.
Captions:
1. Asbestos link
2. Helene Edwards
3. Reg Day
4. Peter Macdonald
5. Peter Mathews
6. Quentin Jones
7. Jessica Hromas