The Full Court of the Supreme Court this week ordered BHP Billiton pay $190,000 compensation for pain and suffering to the family of Raymond Hamilton.
Mr Hamilton died in August 2007 after contracting mesothelioma while working as an electrician for the mining giant at a Whyalla shipyard between 1964 and 1965.
In June last year, the District Court awarded his wife Margaret Hamilton almost $233,000 compensation, including $115,000 for pain and suffering, after it found BHP’s negligence led to her husband’s death.
The company appealed the decision, arguing that it had not breached its duty of care to Mr Hamilton, or caused or contributed to his contraction of the disease.
But the Full Court of the Supreme Court this week dismissed that appeal and instead increased Mrs Hamilton’s compensation by $85,000 after reviewing payouts in other jurisdictions.
Mrs Hamilton said she was “upset and disappointed” BHP had challenged the decision, especially because as she had no intention of doing so.
“I am at least happy that everything I have gone through over the last years has resulted in a benefit for others who have suffered the misfortune of being struck down by mesothelioma and for the partners who lose one to this terrible disease,” she told The Advertiser.
“My husband suffered terribly. I have suffered the loss of my husband, no amount of money can ever compensate for that.”
In their judgment, Chief Justice Chris Kourakis and Justices Malcolm Blue and Tim Stanley found BHP Billiton was negligent in failing to identify steps to reduce its workers’ asbestos dust inhalation.
This, they found, was despite the availability of recognised measures – including engine room ventilation, respirators, appropriate clothing and vacuum cleaners – to alleviate the issue during Mr Hamilton’s employment.
“A reasonable employer in 1964 or 1965, who knew of the risk that a person in the position of the deceased was exposed to the risk of contracting mesothelioma through the inhalation of asbestos dust in its workplace, would have taken those measures,” Justice Stanley said in the judgment.
“In these circumstances, (BHP’s) failure to adopt these measures constituted a breach of its duty of care.”
Justice Stanley said he found the $115,000 compensation for pain and suffering awarded to Mrs Hamilton as “manifestly inadequate”.
“In reaching this consideration (to increase compensation to $190,000) I am influenced by the disparity between the level of award for damages under this head… and the level of awards for mesothelioma cases in other jurisdictions.
“This court should adjust the level of awards for mesothelioma cases in this state.”
South Australia Asbestos Disease Society president Ian Sheppard praised the courts for supporting victims.
“With BHP there is always a fight on their hands. It’s a wonderful result for the family,” he said.
Moloney and Partners lawyers managing partner Peter Moloney described the case as a “watershed decision for mesothelioma sufferers in this state”.
“It ensures that South Australian victims of asbestos disease will now receive compensation for pain and suffering on a comparable basis to that awarded to claimants interstate,” he said.