Asbestos News. [ accident compensation ] The latest Australian and international news

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1 d finitive [ accident compensation ] Keeping you informed. JANUARY 2013 Asbestos News The latest Australian and international news The last six months have seen an influx of news, policy changes and healthcare developments in the asbestos arena. This d finitive gives you all of the latest developments as at January 2013, including: Key: >> A new best practice asbestos policy for local councils in NSW >> The launch of the Australian Office of Asbestos Safety >> James Hardie s court win against the ATO and the implications for the government and the Medical Research and Compensation Foundation >> The NSW Government scraps asbestos legislation changes >> The NZ EQC s controversial decision to encase rather than remove asbestos Disease and research Court outcomes Compensation and insurance Asbestos use and management >> A.M. Best increases its estimate of the ultimate cost of asbestos claims to the US insurance industry >> Canada moves to abolish asbestos trade >> A new procedure could lead to longer survival times for mesothelioma victims. Read on for details of these stories and more in asbestos news from across the world. Sydney Auckland Melbourne Wellington d finitive JANUARY 2013

2 Australia >> Apr 2012 Rise in illegal asbestos dumping In the past five years the EPA has launched 11 prosecutions against seven defendants for illegal dumping, and 16 charges are currently before the Land and Environment Court. The single biggest factor behind illegal dumping is the high price of disposal the average asbestos roof costs as much as $5,000 to remove. The EPA estimates that 200,000 tonnes of asbestos-contaminated waste is being properly sent to landfill each year, but suspects twice that amount is being illegally dumped. >> May 2012 James Hardie s asbestos foundation flush after court win James Hardie was able to pay back its $30 million worth of government debt and inject $165 million in cash into its Medical Research and Compensation Foundation for asbestos-related claims following a win in court against the ATO. The current estimate of the company s asbestos liability is $1.58 billion. James Hardie contributes 35% of its cashflow to the foundation each year, and has contributed $556 million since the fund was established. 456 people made a claim against the fund in the 2011/12 financial year. >> May 2012 NSW government scraps legislation changes The Law Reform Commission s proposed changes to asbestos compensation regulations would have meant families could claim full benefits up to 12 months after the sufferer s death. Dependants cannot currently lodge a posthumous claim for damages with the NSW Dust Diseases Tribunal. The O Farrell Government said that under the existing compensation agreement with James Hardie, no changes to compensation laws could be made. Victoria, WA and SA have all removed hurdles that prevent families from claiming compensation after a sufferer s death. >> Jun 2012 Landmark victory against BHP Former Whyalla shipyard worker William Parket successfully proves that BHP exposed its workers to asbestos when it knew of the potential health consequences of doing so. This victory paves the way for other Whyalla BHP workers who contract an asbestos-related disease. Mr Parker, who has asbestosis, was awarded $20,000. >> Aug 2012 Tasmanian asbestos compensation improvements The Tasmanian State Government has proposed legislative changes which will benefit asbestos disease sufferers who are claiming through the courts. The changes to the Limitations Act 1974 and Civil Liability Act 2002 allow victims to take action even if the disease was diagnosed more than 12 years after exposure (the current limit), and also allow the awarding of provisional damages in dust-related disease cases. The current legislation has features which disadvantage asbestos disease sufferers due to the long latency period and often quick health deterioration. 2 d finitive JANUARY 2013

3 >> Sep 2012 Wittenoom children have higher cancer risk The Western Australian Institute for Medical Research is the first to monitor the long term effects of asbestos exposure on children. It concludes that women exposed to asbestos before the age of 15 have a 20-47% greater risk of developing a range of cancers (mesothelioma, ovarian and brain) than the rest of the population. Males who had been exposed also had higher rates of cancer. The study found almost 2,500 Wittenoom children were exposed to asbestos before the age of 15, with a median age at exposure of three years. >> Sep 2012 New Commonwealth Office of Asbestos Safety The Australian Government has launched the Office of Asbestos Safety to improve community awareness of asbestos and remove asbestos from Australian buildings. This follows a government review that called for a Commonwealth-led national effort to manage asbestos and reduce people s exposure. The Office is charged with costing and implementing the review s recommendations, including the staged removal of asbestos from government and commercial buildings by >> Oct 2012 Third Wave victims increasing A WA study published in the Medical Journal of Australia says that the proportion of male mesothelioma cases due to home renovation exposures has increased from 3% in the 1990s to 8% by The proportion is almost 36% for women. >> Nov 2012 Hardie directors breached duties Directors at James Hardie Industries were found in 2009 to have breached their duties when they approved a false and misleading announcement which stated that the company s foundation for asbestos-related compensation, the Medical Research and Compensation Foundation, was fully funded. Last May, the High Court decided that the approach taken by ASIC to prove that the misleading announcement had actually been approved by the directors was acceptable. The approach, which pointed to the minutes of the James Hardie board meeting held in February 2001, had previously been invalidated. However the directors have made appeals with considerable success. The NSW Court of Appeal reduced the penalties of most directors to a three year ban (originally five years). Peter Macdonald s (CEO) penalty remained at 15 years, and Phillip Morley s (CFO) remained at five years. >> Nov 2012 Geelong being considered for asbestos removal trial The Federal Government s asbestos removal plan may be piloted in Geelong, with the aim of understanding the cost of a national asbestos removal program. The proposal, put forward by Geelong Trades Hall Council, suggests picking a building, removing the asbestos and recording all steps and costs. Federal Member Richard Marles has said the government is really interested in the notion. >> Nov 2012 Model Asbestos Policy for councils The NSW State Government launched a Model Asbestos Policy for local councils during Asbestos Awareness Week. The policy sets out best practice for dealing with asbestos, and covers waste disposal, emergency response and public education goals. You can find it here: 3 d finitive JANUARY 2013

4 New Zealand >> Jan 2013 EQC s sparks controversy with decision to encase asbestos NZ s Earthquake Commission will encase rather than remove asbestos in ceilings of more than 4,000 Christchurch homes damaged by earthquake. The EQC says enclosing is a reliable method for containing asbestos safely when it is not damaged or deteriorating. Critics of the decision say that leaving asbestos in place will create a potentially fatal legacy with future homeowners potentially being unaware of the asbestos and that the decision is about saving money. They maintain that all asbestos should be removed, and that homeowners should be able to choose whether to have this done. The EQC says that the encasing method requires consent from the homeowner, is reliable and follows health guidelines of the Department of Labour. North America >> May 2012 Any-exposure theory refuted The Pennsylvania Supreme Court has barred the use of the any-exposure theory, which says that the exposure to a single fibre of asbestos is comparable to a greater level of exposure. The court argued that it is contradictory to maintain that a single fibre can lead to the contraction of asbestos-related diseases which have been traditionally recognised as dose-responsive. Pennsylvania is the second jurisdiction (after Texas) to invalidate the anyexposure theory, which was advanced by Dr John C. Maddox. Plaintiffs will be required to show the relationship between the amount of an individual s asbestos exposure and the resulting condition. >> May 2012 Asbestos trusts need transparency to prevent fraud 5 May 2012 A US federal bill, the Furthering Asbestos Claim Transparency Act of 2012, will require federal asbestos bankruptcy trusts to produce quarterly reports regarding claims and associated activities to bankruptcy courts. The aim of the requirement is to minimise the practice of asbestos claimants making multiple claims in multiple jurisdictions for the same complaint. Proponents said that the reporting requirement would provide a cost-effective, efficient way to deal with claims, while opponents argued that the measure would only slow payments to claimants. >> Jun 2012 Large settlement thwarted 2 Jun 2012 A court has ruled that a US$500 million settlement made between The Travelers Indemnity Company, insurer of onetime asbestos manufacturer Johns-Manville Corporation, and asbestos claimants was unenforceable; the settlement was preceded by 30 years of litigation. Travelers had originally sought to make the lump sum payment to claimants in exchange for immunity against future asbestos claims. This agreement was challenged by Chubb Insurance in 2010, who were concerned about their own claims against Travelers. The recent court decision removed the immunity clause, meaning the original settlement is invalid. 4 d finitive JANUARY 2013

5 >> Jun 2012 US$48 million verdict A Californian man and his wife were awarded US$48 million after he was diagnosed with mesothelioma, which was attributed to his exposure to asbestos on a construction site in the 1960s and 70s. The verdict, which was awarded in two phases, represented the largest US settlement in 2012 and included US$18 million in punitive damages. >> Aug 2012 Scarred lungs not an injury After a US (multi-jurisdiction) court ruling that pleural plaques is not an asbestos-related injury, 50,000 filings for asbestos claims by merchant marines have reduced to about 2,000 cases. The court case dismissed the scarring of tissue in the lungs or pleural changes as indications of asbestos-related injury. The pleura the membranous outer lining of the lungs can be pierced and become scarred when asbestos fibres are inhaled. >> Aug 2012 All-sumswith-stacking Last August, the California Supreme Court endorsed the all-sums-with-stacking rule. In cases of progressive injury, all insurance policies issued over different years can be stacked so that their combined limits are available to pay for a loss. >> Sep 2012 Compensation for mesothelioma sufferers after 9/11 attacks The Zadroga Act, approved by US Congress in 2012, means mesothelioma will now be covered by the government fund which was set up to compensate those who became ill due to the World Trade Center attacks. >> Sep 2012 Canada moves to abolish asbestos trade Canada will no longer oppose the listing of asbestos as a hazardous material on the UN Rotterdam Convention, a global list of hazardous substances that places restrictions on trade. In addition, Quebec s new Premier Pauline Marois is proposing to stop subsidies to asbestos mines, which may see the end of asbestos mining in Canada. >> Dec 2012 Increased estimate of cost of US asbestos claims Ratings firm A.M. Best has increased its estimate of the ultimate cost of asbestos claims to the US insurance industry, from US$75 billion to US$85 billion. The increase is due to rising claims costs and higher success rates by plaintiffs attorneys. The insurance industry has already paid out US$51 billion over the past 25 years. Asia >> Aug 2012 Nearby factory responsible for asbestos death A Kobe District Court in Japan ordered machinery maker Kubota Corp to pay Kojiro Yamauchi s mourning family 31.9 million (over A$370,000) in damages. Yamauchi, 80, had worked near Kubota s plant in Amagasaki for 20 years until 1975, and died of pleural mesothelioma caused by asbestos released from the plant. 5 d finitive JANUARY 2013

6 The victory was the first time a court had recognised corporate responsibility for asbestos-related illnesses of local residents by industrial pollution. Kubota had originally set up a fund to pay relief money ranging from 25 million to 46 million, but with no liability. Yamauchi s relatives sought damages from Kubota and the state; their attempts to claim from the state have been unsuccessful so far. >> Dec 2012 Court requires Japanese Government to compensate victims The Tokyo District Court ordered the central government to pay 1.06 billion (nearly A$13 million) in compensation to workers who suffered asbestos-related diseases after exposure on construction sites. The judge ruled that the government measures against asbestos were insufficient, but denied plaintiffs claims against the asbestos manufacturers. United Kingdom >> Mar 2012 Inhalation of asbestos fibres the trigger Employers liability policies will now respond to mesothelioma. This follows a Supreme Court Judgement in March 2012 that insurance policies will respond upon the inhalation of asbestos fibres, rather than on the later manifestation of asbestos-related diseases. This ruling is irrespective of policy wording, which is contrary to a Court of Appeal determination in >> May 2012 New treatment for mesothelioma may prolong life International experts attending the 2nd Annual Symposium for Lung-Sparing Therapies for Malignant Pleural Mesothelioma heard about a new procedure which could lead to the possible extension of a mesothelioma victim s life by five years. Developed by King s Health Partners in London, the innovative method involves washing the lung cavity with warm water and a povidone-iodine mix, alongside traditional radiotherapy and chemotherapy. Experts at the symposium re-affirmed the general consensus that radical surgery, including extra-pleural pneumonectomies and other procedures which involve lung removal, may be more harmful than beneficial and should not be used to treat mesothelioma. These types of radical surgery have an average survival term of one year. >> May 2012 NHS seeks recovery of treatment costs Proposed legislation will enable the Welsh government, on behalf of the NHS in Wales, to recover the costs of NHS treatment and care provided to victims of asbestos-related diseases who have received a civil settlement from liable employers and their insurers. The Recovery of Medical Costs for Asbestos Diseases (Wales) Bill was introduced on 3 December 2011 and is in the first stage of a four-stage process towards being passed. >> Jul 2012 Mesothelioma fund to pay when employer can t be found A 300 million fund will be set up to help victims of mesothelioma who cannot trace their employers insurers. The fund will commence in 2014, and mesothelioma sufferers diagnosed from 25 July 2012 will be eligible to claim. About 3,000 sufferers are expected to be compensated over the next 10 years. Employers liability insurers will provide the funding. 6 d finitive JANUARY 2013

7 Finity & Asbestos d finitive [ accident compensation ] Finity s asbestos practice is committed to keeping on top of local and international developments in the legislative, legal, political and medical environments. We are pleased to share this information via our Asbestos News d finitive for our valued clients with an interest in asbestosrelated news. Finity advises government agencies, insurers, reinsurers and other companies on their asbestos-related liabilities. Our experienced consultants remain at the forefront of actuarial research into compensation for asbestos-related diseases in Australia. Since 1991, we have collected and analysed data on asbestos-related disease claims arising from industrial, environmental and product-related exposures; this extensive historical database represents a key resource for the provision of our advice. We regularly update our modelling approach to respond to changes in disease incidence as well as trends in the claims and litigation environment. Contacts If you have any queries relating to the material contained in this newsletter please feel free to contact David McNab on or by at david.mcnab@finity.com.au Brett Riley brett.riley@finity.com.au David McNab david.mcnab@finity.com.au Asbestos News is a summary by Finity of information from the media and other public sources. Finity takes no responsibility for the accuracy of the content. This newsletter does not constitute actuarial or professional advice. Further clarification can be sought from our consultants. Australia & New Zealand Insurance Industry Award Service Provider of the Year 2006, 2007, 2008, 2009 and Australian Insurance Industry Awards - Inaugural Inductee into the Hall of Fame Australia Sydney Tel Level 7, 155 George St The Rocks, NSW 2000 Melbourne Tel Level 3, 30 Collins Street Melbourne, VIC 3000 New Zealand Auckland Tel Level 27, 188 Quay St Auckland 1010 Wellington Tel Level 16, 157 Lambton Quay Wellington 6140 Contact the Author David McNab Tel david.mcnab@finity.com.au Melbourne Office Finity Consulting Pty Limited ABN

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