Wins by Australian Claimants 

by Laurie Kazan-Allen



December 2006 was a bumper month for asbestos plaintiffs in Western Australia with important victories for lung cancer and mesothelioma claimants. On December 8, 2006, Justice Heenan of the Supreme Court of Western Australia, issued a plaintiff's verdict on behalf of the estate of Paul Steven Cotton against defendants: the State of South Australia, Amaca Pty Ltd, formerly James Hardie & Coy Pty Ltd, and Millennium Inorganic Chemicals Ltd, formerly SCM Chemicals Ltd. Mr. Cotton had significant asbestos exposure having worked from 1975-1978 laying and fitting asbestos-cement water pipes in and around the city of Adelaide; he was subsequently exposed to asbestos by the 3rd defendant during asbestos removal operations commencing in 1988.

According to Solicitor Tim Hammond, from the Perth offices of Slater & Gordon, Mr. Cotton, a lung cancer sufferer, was:

“a smoker who worked with asbestos, but had no plaques or asbestosis and a RR well under that required by Helsinki (the Court found it was somewhere between 1.1 and 1.2). Justice Heenan has recorded some extremely helpful views in relation to Helsinki and AWARD, and the shortcomings of epidemiology and science in an attempt to answer what is essentially a medical question.”

On December 22, 2006, actions brought by mesothelioma plaintiffs Dennis Walter Moss and David Richard Hannell succeeded when the Supreme Court of Western Australia found that James Hardie was also liable for their asbestos diseases. The plaintiffs' solicitor, Tim Hammond, explains:

"Mr. Hannell and Mr. Moss live in Perth. They are approximately 63 and 72 respectively. Their exposures were 'everyday' type exposures associated with relatively low level, non-occupational exposures from DIY jobs. ... (defendants) Hardies contested almost all the points up until the conclusion of the trial, including whether a duty was owed, if they breached the duty, whether the exposures were a cause of their condition given the background levels of ambient asbestos in the air.

I am extremely pleased to say that the Judge found James Hardie liable in both circumstances, in that they wholly failed to warn our clients of the dangers, and the steps they did take were vastly inadequate. What is also helpful about the judgments is that the judge reviews much of the internal Hardies documents and relays their substance in the judgment (including the 'employ older men' memo)."

Mr. Moss was born in Surrey, UK and moved to Australia, aged 62. He worked as a professional musician for over 40 years. His only known exposure to asbestos was during renovation work carried out at his homes in Woodvale, (Perth) Australia in 1989, 1990 and 1992; in each instance, he was exposed to James Hardie asbestos-cement products. Mr. Hannell, who also came from the UK, worked as a gardener and horticulturalist in London and Perth. His only exposure to asbestos took place at his home where he:

“dismantled a Hardiplank woven asbestos fence… He broke and cut asbestos cement sheets using a handsaw and asbestos cutters and used an electric drill. In 1985 he sanded back and repainted the asbestos cement eaves of his house using a wire brush and sandpaper working above his head. In 1990 he painted the corrugated asbestos fence on both sides of his property, brushing down the sheets with a wire brush before painting them over.”

The sums awarded were: Aus$240,321 (US$188,58, 95,881) to Mr. Cotton; Aus$537,032.99 (US$421,475, 214,217) to Mr. Hannell; Aus$225,000 (US$176,603, 89,757) to Mr. Moss.


January 16, 2007



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