something old, something new

The Australian
Industry has head in sand over rising silicosis claims
Michael West
June 30, 2005
THE way the unions see it, toxic dust in the workplace is a national tragedy "which will see thousands of Australians die". But you wouldn't know that from the business fraternity, which professes to know little about any potential liability arising from dust-borne diseases.

It's little wonder. While asbestos claims are soaring, cases of silicosis - that is, lung damage from inhaling fine particles of sand - appear few and far between. Many victims, says the head of the Department of Medicine at the University of Tasmania, Professor Haydn Walters, have either not been diagnosed properly, or have even been wrongly diagnosed with emphysema from smoking, or lung cancer.
It is hardly surprising that the feedback from companies contacted by The Australian over the past week has been muted.
Orica (via ICI), Nylex, Jotun Asia Pacific, ACI and the present owners of Dimet or PGH don't believe they have any liability to silicosis and other toxic dust conditions.
BHP, which faces a slather of asbestos claims from its Whyalla plant, is also likely to invite scrutiny due to its interests in shipyards and in mining. Insurer IAG - whose subsidiary CGU has been sued in a silicosis case and won - says it has made provision for silicosis lawsuits but has experienced few claims.
Further, silicosis is predominantly a disease of the 1960s and 1970s suffered mostly by sandblasters, labourers, miners and spray-painters who inhaled toxic dusts and didn't know for another 20 or 30 years that they were sick. That's the incubation period, just like asbestosis.
Since then, the advent of modern health and safety measures in the mid-1970s and the sale, restructuring and winding up of protective coatings companies such as Dimet and PGH have muddied the waters on liability. There were once 20 companies in the Dimet Group, later to be sold off, liquidated or inherited by a slew of other domestic and foreign players.
That Dimet and PGH, among others, were executing government contacts on RAAF bases and at ports when workers were exposed clouds the legal picture even further. And it was a long time ago.
In general, says Tom Faunce, senior lecturer in law and medicine at the ANU, exposure to silicosis happened before adequate protective clothing was introduced in the 1970s. Since then, respiratory experts have increasingly made the link between fine particles of sand and small airways disease and silicotic lung injury.
Faunce's view is echoed by a group of leading respiratory surgeons and academics who have called for a Senate Inquiry on Workplace Exposure to Toxic Dust. The inquiry is calling for submissions next week from victims, peak bodies, medical and workplace experts and industry. The response from industry, however, will be guarded.
For instance, Nylex spokesman Tim Allerton says there are no actions afoot against the company and Nylex has not taken legal advice.
"To our knowledge we have not picked up any business which has any relationship with any of those products."
His comments reflect the tenor of all responses from industry. The peak body that represents chemicals companies, the Plastics and Chemicals Industry Association (PACIA), declined to respond at all.
Steve Munchenberg, general manager of government and regulatory affairs at the Business Council of Australia, says the BCA will monitor the situation but at present it is a matter for individual companies and sectors.
The BCA went public on asbestos only after the James Hardie scandal hit the front pages via the NSW government commission of inquiry and subsequent Jackson Report threatened the corporate veil and incited politicians into talk of legislation that might curtail corporate freedoms.
The campaigner behind the senate inquiry, Richard White, worked as a sandblaster for Dimet after school in the 1970s. He now suffers silicosis. After a decade of respiratory infections and ill health, White sued Pink Batts (which had acquired Dimet) and its insurer, CGU, in the Northern Territory Supreme Court in 2000. He lost the case.
Claiming silicosis as a result of working as a sandblaster, White also lost on appeal to the High Court in 2003. This time the case was quickly thrown out when the defence argued that he was a smoker.
Shortly after the loss in the High Court, his doctors performed open-lung surgery and found the silicate particles that had damaged his lungs. Having exhausted his legal avenues for further appeal, White put an ad in the paper appealing to those who had worked at Dimet, PGH, Pink Batts, ICI and Nylex.
He received almost 1000 responses, many from relatives of those who had died and others from those living with respiratory disorders and cancer.
White's surgeons, Professor Walters, Professor Trevor Williams of Melbourne's Alfred Hospital, and Professor David Bryant of Sydney University and St Vincent's Hospital in Sydney, back him. He amassed the support of occupational health experts, the Australian Lung Foundation, the Catholic and Anglican churches and other peak bodies and lobbied the Senate.
Liberal senator Gary Humphries and the Democrats' Lyn Allison took up the cudgels early this year and last week succeeded in winning the numbers for an inquiry. The terms of reference, originally planned to centre on silicosis, were expanded to encompass all toxic dust after consultation with the CSIRO.
Corporate liability may indeed rest with dozens of companies, both suppliers and manufacturers of the silica, asbestos, strontium chromate, coal tar pitch, lead, tri-butyl tin oxide and other hazardous chemicals in protective coatings. There is strong evidence, says Tom Faunce, to suggest that companies knew the dangers but failed to protect their employees.
Indeed, toxic dust is a worldwide problem that may become an epidemic, Professor Walters believes. The pace of industrial development in the Third World, especially India and China, has not been matched by the development of protective standards for workers.
Silicosis is a hotly debated issue in the US but only in the UK has there been a significant class judgment in favour of workers. In the biggest personal injury litigation in British history, a group of Welsh coal miners who worked for British Coal won a long legal battle in 1999 and were awarded damages.
The Government then set up a compensation fund for workers and hundreds of millions of dollars have been claimed for exposure to coal dust and resulting conditions such as chronic bronchitis, small airways disease, asthma, chronic airflow limitation and emphysema.
The High Court in Cardiff found that inhaling coal dust had similar effects to cigarette smoking.

Hard Road Ahead For Nylex - CSFB
Wednesday, June 08, 2005 6:34:29 PM ET
Dow Jones Newswires

0822 [Dow Jones] STOCK CALL: Comments at Nylex's (NLX.AU) AGM yesterday on operating businesses were mixed bag, says CSFB; slowdown in housing markets plus some softness in consumer markets, input cost pressures add up to hard road ahead. "We have generously given the company some benefit of the doubt in both 2006 and 2007, although our level of confidence is not high." Yesterday's news that price for auto assets keeps shrinking doesn't improve confidence levels; if interest cost impact of this is incorporated into FY06 forecasts, they would fall 6.5%. Maintains Neutral rating, 30 cent price target; closed yesterday up 1 cent at 28.5 cents. (WES)