The process of engaging a lawyer and making a claim for compensation can be the last thing a family wants to deal with when a loved one receives a bad diagnosis.
Being told you have mesothelioma is not worthy of comparison to any other life event that might drive someone to a lawyer.
How you behave as a lawyer acting for the person in this situation is an important element for the respectful management of what such a dying person might personally regard with some reluctance or even suspicion.
Many people in this situation have never dealt with lawyers or the legal process. For many the idea of suing for compensation is wrongly of course, akin to asking for a “handout”.
The last 3 mesothelioma cases in which I acted had all the typical objective elements of sadness (contrasted with the abiding humour that seems almost paradoxically to remain) along with various subjective challenges of proof that are commonly associated with proving a claim that arises out of events that occurred decades before.
Kim was only 18 or 19 when she worked in a secretarial role for a business that amongst other things supplied asbestos cement building sheets manufactured by James Hardie & Coy Pty Limited. Although Kim was a young secretary she went to the warehouse area where these asbestos cement products were cut and shaped for use and supply and sadly at the relative youthful age of 57 she was diagnosed with mesothelioma.
The company that had employed her was deregistered and long gone, and an insurer of that deregistered company for the relevant period could not be identified.
Accordingly the claim that remained was against the manufacturer.
Researching these historical matters regularly involves enquiries of the old Workers’ Compensation Commission looking for a company or its insurer, speaking to directors who may still be alive that you might track down from company searches or even from a visit to the Mitchell Library looking for historical material that might point you in the right direction. Witnesses are often hard to find and often it is a matter of relying on your own experience with previous claims and matters that can help you through the puzzle.
Sadly in Kim’s case the cancer was so aggressive that she passed away, not before I had got the claim and particulars of it filed and served, but before there was time to resolve her matter and it fell to her husband to complete the claim as the legal personal representative of the estate.
That process required first securing probate and then moving for the appropriate substitution in the Tribunal. These procedural matters can take time before the Claims Resolution Process can again direct the parties to mediated negotiations and settlement. That had its own emotional consequence for Alf who has coped with the loss of his wife when they were planning many years together. Finalisation of the claim in May 2017 provided considerable relief.
As a young man John did an apprenticeship as a carpenter/joiner. That ultimately led him into his own business working with lots of builders in NSW doing the roofing on new housing.
He moved from job to job with some regularity and worked with so many different builders and in varying partnerships with different people along the way that it was almost impossible for him to remember the details.
Collecting and collating the history of that large variety of work and work places, the identity and availability of former workmates, details of the varying products that he purchased from different hardwares throughout his career and so on, was again typically challenging. John was coping with his illness and the chemotherapy that was being prescribed which made him feel worse than the illness.
John was almost inclined to the view that the legal process was more than he could cope with. He was reassured that it was in our hands and that it was not for him to worry.
Ultimately, the history and chronology was put in order and with records of hardwares that supplied the various materials coupled with his own affidavit evidence, the matter was successfully resolved at a mediation in March 2017.
Ken took regular walks and played golf and became puzzled and concerned at the sudden and severe lack of breath he encountered on one of his walks. Unsurprisingly the diagnosis that followed was a blow for him and his wife. They had not then recovered from the recent loss of their daughter to cancer.
Ken had always been handy and had trained as an electrician. His early employer and the place where he was first exposed to asbestos, had long gone and there was no one to sue there. Ken had been young at that time and so he really did not know asbestos products or the manufacturers with any certainty.
Again however, he had done subsequent building and electrical work throughout the rest of his career and was able to identify James Hardie products that he had worked with.
The progress of Ken’s cancer was such that it required an urgent application to the Tribunal to take Ken’s evidence at his hospital bed. Following the taking of that evidence and with authority to his 2 sons to attend at the mediation on his behalf, Ken’s claim was able to be settled and Judgment entered only shortly before Ken passed away in April 2017.
The ability and experience of managing matters with urgency to ensure the proceedings are filed and the dying person’s rights not lost with death, is critical. Similarly the experience of being able to bring a matter urgently to the Tribunal’s attention and have evidence taken in those circumstances is critical.