Legal Win for Australian Mechanic
On February 19, 2008, Justice Andrew Beech of the Supreme Court of Western Australia issued a 68-page landmark ruling in the case of Antonio Lo Presti vs. Ford Motor Company of Australia Ltd.1 According to Michael Magazanik, Mr. Lo Presti's solicitor, this verdict set a precedent which may have implications for thousands of other mechanics with asbestos-related diseases. Magazanik said:
This win is a tribute to Mr. Lo Presti's unwavering determination over the last five years to fight hard for his family and to the 25-year campaign by Robert Vojakovic and the Asbestos Diseases Society of Australia The judgment underlines the fact that even though Ford Australia knew that asbestos was potentially deadly it failed miserably in its duty to warn mechanics like Mr Lo Prestis who were exposed to asbestos on a daily basis.
Ford's lawyers told the Court that no claim like this against a car manufacturer had ever succeeded anywhere in the world. However Mr. Lo Presti's success will give heart to other mechanics whose health has suffered after being negligently exposed to asbestos in brake pads.2
After immigrating to Australia at age 20 in 1970, Mr. Lo Presti worked as a mechanic for two Ford dealerships from 1970-1987, during which time he serviced cars and checked brakes lined with a friction material that included asbestos, of the type commonly known as chrysotile. It was a routine practice to blow both the brakes and the brake drums with compressed air. Also during the car service, brakes were on occasion, rubbed with emery paper, a rough sandpaper-like cloth (sometimes it was necessary) to chamfer or file the edge of a new brake lining to ensure it fitted correctly. Lawyer Magazanik described the working conditions in the Ford workshops as follows:
There were thick clouds of dust Dust so thick that it would settle on the ends of workers' cigarettes and actually put the cigarettes out. It would collect on the fans and fall off in chunks It was so thick sometimes they would try to brush it away from their face. That was the extent of the dust in that facility and again there was never a single warning that inhaling that dust was dangerous.3
In September 2001, the claimant was forced to retire due to ill health just a few short months after being diagnosed with asbestosis. At 58 years old, he is now substantially disabled and relies on the use of a mobile respirator to supply him with oxygen. Mr. Lo Presti initiated a claim for damages for the tort of negligence against Ford Motor Company of Australia Ltd., claiming that had proper warnings been given or safety measures been implemented, he would not have contracted asbestosis. During the 15 day trial in 2007, epidemiological testimony was submitted by U.S. witnesses Drs. Goodman and Paustenbach, the former from Emory University in Georgia. Of their evidence, Justice Beech wrote:
I am not satisfied that the mechanics the subject of the epidemiological studies relied upon by Dr Goodman and Dr Paustenbach experienced an exposure substantially similar to that experienced by the plaintiff. For that reason, I find that the epidemiological evidence is not of any significant assistance in resolving the causation issue in this case.
Furthermore, the Judge wrote:
the epidemiological evidence is not of any significant assistance in the resolution of the question of the cause of the plaintiff's fibrosis.
Medical evidence was supplied by Professor Bruce Robinson, Professor Bill Musk, Dr. David McEvoy and Associate Professor McKenzie; the first three experts agreed with the diagnosis of asbestosis while the fourth, testifying for the defendant, diagnosed the plaintiff's condition as cryptogenic (or idiopathic) pulmonary fibrosis. Once again, the Judge was not persuaded by the defense:
Nor does the evidence otherwise satisfy me that there is a threshold level of exposure for asbestosis. That being so, I do not make the finding invited by the defendant, namely that there is a threshold of 25 fibre/ml years (or any particular level) below which asbestosis will not occur or be clinically observable.
Finding that Ford had been negligent, the Judge awarded the claimant the sum of $840,000. Expressing her gratitude to the Judge, Connie Lo Presti said the 5 year court battle had taken its toll on the whole family:
My kids have suffered through this as well and I'm glad it's over. It's been real tough since he hasn't worked, with me trying to battle three jobs and a family and look after him has been really tough... I am happy that we've won, not only for our sake, but for thousands of other people around that are probably going to go through the same thing
P.S. (added April 4, 2008)
According to an official announcement, the Ford Motor Company of Australia will appeal this verdict.
1 The judgment can be read online:
\cs15\fs18\insrsid14877614\charrsid3408300 \hich\af0\dbch\af11\loch\f0 http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/wa/WASC/2008/12.html?query=^Antonio%20Lo%20Presti
2 Slater & Gordon press release: http://www.slatergordon.com.au/docs/MediaReleases/Landmark%20Win%20on%20Asbestos%20Brake%20Pads%2008-02-19.pdf
3 Cowan S. Mechanic awarded $840,000 for asbestosis from car brakes. The West Australian. February 20, 2008;p.3.