Medicolegal aspects of the third wave of asbestos-related disease in Australia

On the Australian mainland, there have only been two manufacturers of asbestos cement products used in home construction and renovation: James Hardie and Wunderlich, a subsidiary of CSR. Asbestos products were manufactured from the 1920s up until 1984, when Hardies ceased using asbestos in their building products (Wunderlich had been acquired by James Hardie in June 1977). In 1978, James Hardie boasted that their products were in most homes in Australia.

The range of asbestos cement building products (once widely known as “fibro”) that were made in Australia include flat and striated walls, eaves and panels; corrugated panels (used primarily for fencing and roofing); flat sheets covered with crushed or artificial brick; flues for gas heaters; thick sheets for flooring or as tile underlay; and sheets covered with coloured or patterned vinyl used in bathrooms and other wet areas.

As the country with the highest rate of mesothelioma in the world,1 Australia has lived through two “waves” of asbestos-related disease — the first from the mining of asbestos and the manufacturing of asbestos products, and the second from asbestos use in industry. In this issue of the Journal, Olsen and colleagues clearly reveal that the “third wave” of the asbestos disease epidemic in Australia comprises non-industrial users of asbestos products,2 and a significant contributor to this cohort are the non-professionals who cut and fixed asbestos cement products in home renovation or maintenance and other do-it-yourself activities, or who demolished asbestos cement products during renovations. Family members present during these activities are also part of this cohort.

The most alarming feature of this third wave is its potential to continue to grow for many years to come. Neither James Hardie nor CSR have ever taken any steps to systematically warn people who have asbestos products in their homes — including products that contain the highly dangerous Wittenoom blue asbestos used by both manufacturers — of the potential for fatal consequences in 20–40 years if they demolish those products today. We contend that the manufacturers have a legal duty of care to these people (Box).

Claims for compensation and damages for people with asbestos disease because a manufacturer breached a duty of care have been pursued for over 25 years. Many of the legal precedents derived from the early claims against CSR by workers at the Wittenoom mine, and against James Hardie by its employees, have been applied in these product-user claims.

Most mesothelioma claims are now successfully resolved out of court without a trial. When this does not occur, the claims primarily involve one or two instances of construction or demolition. The major issues of controversy are (i) the claimant’s ability to prove that the manufacturer could, and should, have taken steps that would (before the time of exposure) have drawn the risk to the user’s attention; and (ii) proving, more probably than not, that the exposure in such limited circumstances was a cause of, or made a contribution to, the mesothelioma manifesting many years later.

Almost from the first acceptance in 1960 of mesothelioma as a cancer uniquely related to asbestos, it has been recognised that this cancer could be caused by very low exposures.1 The argument is sometimes put that mesothelioma can occur without asbestos exposure at all, or can be caused by exposure to the very low “background” levels present in most urban environments and some non-urban environments. In reality, in an individual mesothelioma case, all cumulative asbestos exposure — “background”, unrecalled or unrecognised exposure, and specifically recalled exposure — must, on biological mechanistic grounds, be considered to be playing a part in causation.3 With acceptable evidence of specific exposure, no matter how slight, a claimant should succeed, as such exposure would add more than a minimal dose to any background exposure. No threshold for asbestos causation of mesothelioma has been demonstrated.4,5

The article by Olsen et al documents an upward trend in mesothelioma cases in home renovators.2 This trend was appearing in reports of the Australian Mesothelioma Register operated by the National Occupational Health and Safety Commission (NOHSC) up to 2001.6 However, until now, it has not been possible to statistically confirm the trend, because of incomplete coverage of the Register from 2001 onwards. This was a consequence of the drastic cutbacks in the scientific capacity of the NOHSC, and over-stringent privacy legislation preventing comparisons with state cancer registries and the collecting of data on exposure history. We hope that the newly reconstituted Australian Mesothelioma Registry collaboration, administered by the New South Wales Cancer Council, and covering all mesothelioma cases in Australia diagnosed after 1 July 2010, will enable continued monitoring across the whole of Australia of this tragic third wave of the mesothelioma epidemic.

While the Western Australian Mesothelioma Register study2 and the new Australia-wide initiative will be of small comfort to those who already have or will develop mesothelioma, these initiatives may assist in maintaining an awareness of the risks of exposure during home maintenance, and of other possibly unrecognised exposures, and hasten regulatory and control activities both nationally and internationally.

All asbestos use was banned in Australia in 2003, and it is also banned in 56 other countries. (There are a few very limited, technical exceptions to the ban; eg, for military use where no substitute is available.) However, there are a few countries where it is still being used in building products (eg, India, Thailand, Russia, China and Indonesia). Data from Australian registers serve a very important purpose in sending a global warning of the deadly nature of this substance and the need for a complete global ban on any future use.7