Dust Disease Claim Lorraine Fay S –v- Allianz Australia Limited

PUBLISHED 30 Apr 2013

In this matter, the Plaintiff, Mrs Sim, was the widow of the late David Sim, an Asbestos Worker who contracted Asbestosis and subsequently lung cancer from which he died on 6 July 2009.

During his life, Mr Sim worked for Australian Asbestos for approximately two years (1964-1966), Asbestospray Fireproofing and Insulation (1967-1972), Asbestospray corporation (1972-1975) and Bells Thermalag (1975-2002).

A claim was commenced on behalf of David Sim in the Dust Diseases Tribunal of New South Wales in early 2009, when Mr Sim was still alive.

The claim was commenced against the Workers Compensation Insurers of Mr Sim at each of his employment from 1960’s until 2002.

The Defendants argued that whilst Mr Sim had been exposed to Asbestos dust and fibre in each of his employments, each exposure was not in itself sufficient to cause Mr Sim to develop a lung cancer.

The argument was of a technical nature and forced the Lawyers for Mr Sim to demonstrate that each of the exposure to asbestos that Mr Sim had with each employer was of a level capable of causing the development of lung cancer.

Mr Sim could not provide evidence in person as he passed away before the matter was heard by a Judge.

A few days before Mr Sim’s demise, the Lawyer for Mr Sim obtained a comprehensive Affidavit from Mr Sim which covered all his exposure to asbestos at each stage of his employment.

As the Plaintiff had passed away the Defendants challenged genuinity of Mr Sim’s Affidavit and tried to discredit the Lawyer who had taken the Affidavit. 

The Lawyers for Mr Sim called four different lay witnesses who were co-workers of Mr Sim at each of the said places of employment to confirm that the level of asbestos contamination was extremely high.

In his Decision dated 24 December 2010, Judge Curtis of the Dust Diseases Tribunal of New South Wales accepted the version of the facts provided by both the Lawyer for Mr Sim as well the lay witnesses and found that each of Mr Sim’s employments represented an environment that was sufficiently contaminated with asbestos to cause Mr Sim to develop lung cancer.

The Defendants appealed Judge Curtis’ decision to the New South Wales Court of Appeal. A Court formed by three Judges in the Court of Appeal heard the matter. in the All three Judges found in favour of the Plaintiff and upheld his Honour Judge Curtis’ decision. The widow and family of the late David Sim received an award of damages of approximately half a million dollars.

The case of the Late David Sim is currently still one of the main authorities on the issue of causation with respect to asbestos related lung cancer victims.

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