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Mining company loses appeal on $2m mesothelioma case

New South Wales’ Supreme Court of Appeal has refused to overturn a decision that saw a mesothelioma sufferer receive $2,236,959 last year.

The man worked for a well-known global mining company between 1979 and 1981, in which time he was exposed to asbestos fibres that eventually led to a tumour developing on the epithelial cells of his lungs.

However, after losing the original case, his employer appealed the decision on several grounds, including rejecting the court’s judgments regarding evidence admissibility, breach of duty obligations and the strength of evidence.

Firstly, the company claimed the sworn affidavit of one of the plaintiff’s witnesses, a general foreman of the firm’s blast furnaces, should not have been allowed into evidence. In his statement, the foreman revealed that many employees were exposed to asbestos during the late 1970s until the mid-1980s.

While the mining firm had attempted to test substitute materials in this time, they had failed to find a suitable alternative. The organisation argued the foreman was not an expert on asbestos and would not have been able to identify whether or not materials used at the furnace were in fact the hazardous substance.

Nevertheless, the original judge admitted the employee’s statements into evidence based on its convincingness and his extensive experience with the company. The appellate judges reaffirmed this ruling.

Firm challenges breach of duty claim

According to the company, the original decision of the courts failed to establish the magnitude of the risk to which the plaintiff was exposed, thus making a breach claim untenable.
However, the appellate judges upheld the previous ruling, noting that precautions to lower employee exposure to asbestos were limited. As such, the business was deemed to have failed in proving an error of law was made.

Lastly, the appellant suggested there was not enough evidence to show that it had not adequately warned employees of the dangers of asbestos. It also argued little proof had been provided to accurately indicate the claimant’s level of exposure to the hazardous material.

Again, the organisation’s reasoning was rejected. It was also described as negligent because it failed to conduct atmospheric testing for asbestos and didn’t provide workers with specialist laundry and waste disposal facilities. This meant employees were exposed to the material through their clothing and during clean-up operations.

The company therefore failed on all three counts of its appeal, with the courts dismissing the case and ordering the company to pay any costs associated with the additional proceedings.

© 2015 
Gerard Malouf & Partners
 — Personal Injury Compensation Lawyers

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