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A 42-year-old Perth father, who was exposed to asbestos dumped by James Hardie at an orphanage and children’s railway, has been awarded $2.07 million compensation by the Western Australian Supreme Court.
Slater and Gordon client Simon Lowes was exposed to asbestos as a young child when he made a series of visits to the Castledare Miniature Railway on the grounds of a Christian Brothers orphanage south of Perth.
Acting on Mr Lowes’ behalf, Slater and Gordon filed a writ in 2009 after Mr Lowes was diagnosed as suffering from mesothelioma, an asbestos-caused cancer that is almost always fatal. The James Hardie compensation fund denied responsibility and refused to pay compensation forcing Mr Lowes to endure a two-week trial in April 2010.
During the trial the court heard that unbeknown to the thousands of visitors to the railway, James Hardie had been dumping its asbestos waste on the grounds of the orphanage where the waste was used as a base for the railway; to fill swamp land and to cover roads and tracks. As a four-year-old in the early 1970s Mr Lowes played in the asbestos when visiting the site, unknowingly covering himself with the deadly fibres.
During the trial, James Hardie’s compensation fund argued that dumping the asbestos waste on the grounds of the orphanage was acceptable behaviour in the early 1970s. This was despite the fact that James Hardie’s own safety officer visited the dumping site in 1971 (before Mr Lowes visited) and wrote an internal memo that declared the dumping “unwise”. Despite the advice, the dumping continued.
Judge Michael Corboy, in a 350 page decision issued today, found that James Hardie should never have dumped its asbestos waste at the site, and that the company’s negligence had caused Mr Lowes’ cancer.
Slater and Gordon lawyer Michael Magazanik said the result was a tribute to Mr Lowes’ courage and persistence.
“He’s battled on in the face of illness and a company which did everything it could to deny him compensation. It is appalling that James Hardie’s compensation fund did not pay Simon two years ago but instead put him through a Supreme Court trial,” Mr Magazanik said.
“This case has revealed the worst type of corporate behaviour. James Hardie dumped asbestos on what amounted to a children’s playground. Its own staff said it should stop and James Hardie knew small amounts of asbestos could be deadly. Yet it continued to expose children to death in a playground.”
Mr Lowes said his legal fight had been exhausting.
“This has been a long struggle; but it has always been about making sure my two daughters are looked after. I just hope that the defendant accepts the umpire’s decision and lets me get on with my life. I’d like to now spend time with my family and concentrate on staying healthy,” Mr Lowes said.
Mr Magazanik said evidence provided at the trial demonstrated James Hardie dumped its asbestos waste at sites all around Australia.
“James Hardie’s behaviour was scandalous. It left ticking bombs wherever it dumped its waste without adequate precautions. Its conduct has ruined Mr Lowes’ health and placed his life in peril. Its disregard for the health of visitors to Castledare, and boys living at the orphanage, was outrageous.”
Mr Magazanik said that if anyone, including former James Hardie employees, had information about the company’s former dump sites for asbestos waste, they should contact Slater and Gordon so that a proper data base could be kept for the benefit of future victims.
Mr Lowes is continuing to undergo treatment and monitoring for his mesothelioma.
Mr Magazanik also paid tribute to Robert and Rose Marie Vojakovic of the Asbestos Diseases Society of Australia who supported Mr Lowes and his family throughout the legal battle.
“Robert and Rose Marie have been tirelessly assisting victims of asbestos disease for 30 years. Without them and the battles they have fought and won, people like Simon would likely not even have been able to bring a claim. "