Asbestos patients die awaiting compensation

PEOPLE suffering from the asbestos disease mesothelioma are dying before their compensation cases are completed due to a cost-saving system introduced in 2005, a Sydney judge says.

In a judgment handed down last month, Judge Bill Kearns urged the NSW Government to change the rules "with some urgency", saying the issue was causing additional anguish to claimants and compromising their ability to give lucid evidence.

The new system was brought in after the issue of legal costs in asbestos cases was raised during the 2004 furore over James Hardie's $1.5 billion underfunding of a compensation trust.

The Government responded by making mediation the standard method of resolving claims, with a set timetable.

A Government review of the first year of operation concluded that plaintiff legal costs were falling slightly and defendant costs were falling substantially.

Cases can be referred to a judge of the Dust Diseases Tribunal if there is medical evidence that a plaintiff is likely to die before the mediation timetable runs its course.

At a hearing in February, Judge Kearns said he knew of at least 10 cases in his two years on the bench where the plaintiff died within a fortnight of the case being removed from the claims resolution process under this provision.

"There is something seriously wrong with a system that, because of its structure, denies a plaintiff access to a judge until the last fortnight or the last few days of his or her life, and at a time when he or she is in a state of seriously poor and deteriorating health and with little prospect of his or her case being completed during his or her lifetime," Judge Kearns had said in February, in comments reproduced in his May judgment.

The Dust Diseases Tribunal referred Judge Kearns's comments to the Attorney-General, John Hatzistergos, earlier this month.

"He has asked his department to investigate the resolution process and any efficiency improvements as a matter of priority," a spokesman said.

The judge's comments "give rise to serious concerns", said Ross Letherbarrow, SC, chairman of the NSW Bar Association's common law committee.

The committee was "looking at the issue with a view to seeking changes to the system", he said.

Vincent Goldrick, a partner of the commercial law firm Goldrick Farrell Mullan, said he agreed with Judge Kearns's view that the previous system would have allowed more cases to be determined before claimants died.

Mr Goldrick pointed out that the strict requirements proving medical evidence of urgency were a problem.