The incidence of asbestos-related diseases is set to peak after 2010, meaning asbestos lawyers can only expect more work to come their way as Australia experiences the lingering effects of its post-war building boom. Briana Everett reports

Australia has the highest rate of asbestos-related disease in the world and because of the extensive latency between exposure to asbestos and the onset of disease, the incidence of cases it set to heighten in the years ahead.

As a result, the work for asbestos lawyers on both the plaintiff and defendant side will become even more complex as they are required to investigate brief exposures to the highly toxic asbestos from 30 or more years ago. Used at its peak in the 1970s, it was not until 2003 that asbestos use was completely banned in Australia and there are still vast amounts of asbestos in Australian houses, schools, hospitals and other public buildings.

Time is precious

Asbestos lawyers, particularly those on the plaintiff side, are dealing with extremely ill people and this proves to be the biggest challenge. They must act within incredibly tight timeframes while also accommodating the needs of clients and their families.

Theodora Ahilas, a plaintiff asbestos lawyer at Maurice Blackburn, says the greatest difficulty associated with working in the asbestos law area is that everything must be done on an expedited basis. "The pressure is added by the fact that you're dealing with very ill people...and you're also trying to get their cases [moving] to protect their entitlements and the family's entitlements," she explains.

Describing the incredibly quick turnaround required in asbestos cases, which on average range between three to five months depending on the extent of illness, Ahilas says unless a statement of claim is filed within the lifetime of the plaintiff the general damages die with them, so there is always an urgency to file claims as soon as possible.

"[For a recent case] I met the family at 7pm on a Saturday night, outside the hospital. I received instructions at 7am on Sunday morning, filed the statement of claim at 9am on the Monday morning and we were taking his bedside evidence at 2:30pm that day," Ahilas says, recounting the race to get things done.

While the clock is ticking fast particularly from the plaintiff's perspective, Slater & Gordon's national practice group leader Margaret Kent points out that the time constraints are difficult for everybody, including those on the defendant side. "Everybody has to work to a very fast timetable. Sometimes we have to take evidence by people's bedsides or in hospitals in circumstances where evidence needs to be preserved...so it is a bit special compared to other areas of litigation," she says.

On top of the ability to work quickly, Kent highlights the depth of knowledge required of asbestos lawyers beyond their legal expertise. She says asbestos lawyers must have an understanding of all asbestos-related illnesses, such as the asbestos-specific disease mesothelioma, and must also understand the diagnosis and treatment processes. She says as an asbestos lawyer, a lot of time is spent looking at history in order to piece together what happened and this requires a lot of investigation and knowing what to ask. Given that in the wrong person mesothelioma can occur after just half a day of exposure, Kent notes that asbestos lawyers are not always looking for lengthy exposures but instead are attempting to track down very brief events in an individual's life, which can be a difficult task.

As well as medical knowledge, Kent says a good understanding of the historical uses of asbestos is vital for asbestos lawyers. "[Asbestos] was used in a huge range of industries and often your client doesn't know that, but you need to [know] because then you are able to figure out what happened to them," she explains. "You need to know when the material was used, what all the different names of the different brands are and what sorts of uses asbestos is involved in."

The new wave

In the early days of asbestos litigation, the exposures to asbestos were typically occupational. However, 20 years on a new wave of non-occupational cases are starting to increasingly appear as a result of briefer, lighter exposures to asbestos known as "bystander exposures".

"That [has been] the most significant change over time in asbestos law since it began 20 years ago," Kent says. "A bystander exposure is quite representative of what we see more and more of and we will continue to see more and more of [them]. Exposures, such as home renovations, are the growing trend."

No direct contact with asbestos is necessary and Kent says such exposures commonly occur in relation to do-it-yourself home renovations including instances where a child is exposed when their parents renovate.

With this increase in bystander exposure cases, Ahilas says the work of an asbestos lawyer becomes that much harder, given they are dealing with such incidental exposures. In these cases, she says after being diagnosed with an asbestos-related disease, the plaintiff often has no recollection or cannot pinpoint when or where exposure may have occurred and so it is up to the lawyer to uncover what happened.

Given that asbestos litigation often relates to exposure alleged to have occurred 30 to 50 years ago, Herbert Geer partner Michael Gatehouse says there are significant forensic and evidentiary challenges for lawyers who act for employers or occupiers.

"It is rare for companies to retain records and documents for such a long period. Witnesses are also often very difficult to locate or have passed away," he says. "The lack of records sometimes makes it difficult to confirm insurance for the claim. Without records, it is often necessary to conduct extensive enquiries in an effort to indentify an insurer."

Concerns for the future

In the wake of the James Hardie inquiry (now known as Amaca Pty Ltd) Kent warns that defendants such as James Hardie and CSR must be watched closely in the future to ensure sufficient funding is available to meet their asbestos liabilities and compensate victims.

"The biggest concern is to ensure that asbestos victims are able to be compensated by those defendants which commonly have claims against them. There are several of them and it's not just James Hardie and CSR. This is a problem that will go on in Australia for many years to come," she says.

"And an even larger concern is that the country is still full of asbestos materials. We need to get much clearer as a country about how dangerous even quite fleeting exposures to asbestos can be."

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