Opinion
Third wave asbestos exposure: when bystanders are endangered
9th Oct 2015
Tonya Fenton, 55, was diagnosed with malignant mesothelioma in October last year. Her only exposure to asbestos occurred when she worked in close proximity to the Expo 88 construction site in South Brisbane in the mid-1980s.
Tonya told her story to the ABC in the hope that it would make others aware of the risks of asbestos exposure.
In the early 1980s, South Brisbane was a very different place. Run down and dilapidated, the future site of Expo 88 was lined with old boarding houses, blocks of flats, industrial estates and fibro homes.
When Tonya Fenton was 25-years-old, she started work at the old Yellow Pages Building on the corner of Grey and Sidon streets. Just a few months later in mid-1985, demolition work was well underway to make way for Expo 88.
As a high performing sales consultant, Tonya often worked long hours, sometimes arriving as early as 6am and other days not leaving before 10pm. She even worked weekends and attended numerous business meetings and lunches at nearby pubs, restaurants and cafes.
Her building was on the boundary of the Expo 88 site. There was a lot of pressure to complete the project on time and Tonya said that the demolition site was incredibly dusty and dirty. She couldn’t escape the dust – it covered her car, her clothes and her shoes at the end of every work day.
Despite her office being completely enclosed, the dust still managed to penetrate their working space. Desks were regularly covered in a film of dust from the demolition site, to the point where her employer arranged for fresh hand towels to be delivered several times a week to allow staff to wipe down their work spaces. Another company was engaged to wipe down all of the plants in the building, which regularly accumulated dust as well.
A set of flats right next to her office building was demolished just metres away from Tonya’s window. This demolition produced huge amounts of dust and looking back, Tonya is certain it would have contained asbestos dust which she then inhaled.
After the demolition, the excavation started and Tonya remembers it was just as dusty as the demolition work. Telegraph poles, underground pipes, roads and telecommunications pits were all removed and many of these concrete pits and sewers contained asbestos. Workers used power saws to cut pipes to size and Tonya remembers seeing clouds of clouds of dust less than 20 metres from where she was standing.
No steps were taken to minimise the spread of the dust. Tonya never walked through the prohibited area of the construction site and only walked on the outside of the site in order to conduct day-to-day business, but the simple act of coming to work was enough to expose Tonya and her colleagues to significant amounts of asbestos dust.
Tonya was never warned about the dangers of asbestos at the time. Her employer never issued any cautions and there were no notices regarding the dangers of asbestos placed anywhere around the Expo 88 site at the time of the demolition and excavation work.
Had she known about the dangers of asbestos and the fact that no appropriate protections were in place, Tonya would never have walked in the vicinity of the Expo 88 site. At the very least, she would have spoken to her manager about whether it was safe to come to work.
Tonya was diagnosed with malignant mesothelioma after a biopsy in October 2014. She is currently undergoing chemotherapy in a bid to prolong her life.
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Tonya’s case is illustrative of the 'third wave' of exposure – those who are involved with disturbing materials containing asbestos in situ which includes demolition workers, home renovators and those who are in the vicinity of home renovators.
Despite years of public awareness campaigns, this type of third wave exposure is becoming increasingly common. Cancer Council Queensland research indicates that in Queensland alone there were on average 169 mesothelioma cases per year in 2012, a significant rise from 17 per-year in the 1980s.
While mesothelioma is attributed to asbestos exposure in most cases, there are still many significant evidentiary hurdles that need to be overcome in order to succeed in such a claim.
In contrast to legislation that has been passed in other jurisdictions (similar to the recent firefighter presumptive provisions introduced in the Workers’ Compensation and Rehabilitation Act 2003 (Qld)), a significant evidentiary onus rests on claimants’ shoulders, which needs to be discharged by adducing compelling factual evidence regarding the nature and extent of any alleged asbestos exposure.
Such evidence needs to be led not only by the claimant, but often many others – both lay witnesses and expert witnesses. Verification of exposure is crucial in such cases, particularly when the latency period between exposure and development of disease can range between about 10 to 60 years.
Tonya’s matter serves as a timely reminder of the risks associated with asbestos exposure endured by innocent bystanders. It also demonstrates the importance of registering asbestos exposure which in most cases is as simple as providing a written record of the salient details of the exposure. Law firms that specialise in asbestos disease compensation claims are able to register asbestos exposure. There is also a National Asbestos Exposure Register which is managed by the Asbestos Safety and Eradication Agency. Taking this simple step will ease a claimant’s evidentiary burden when it comes to adducing proof of asbestos exposure that was endured many years ago if a claim for compensation is ever justified in the future.
Martin Rogalski is a Senior Associate with Slater and Gordon Lawyers. His current practice focus is compensation claims for asbestos disease as well as general latent onset occupational disease. He acts for people from all walks of life who have been diagnosed with various forms of disease including mesothelioma, lung cancer, asbestosis, laryngeal cancer as well as rare malignancies. He has acted for asbestos disease litigants in landmark cases in the Supreme Court of Queensland and Court of Appeal and has pursued compensation claims throughout Australia, New Zealand, the United Kingdom and Holland. You can follow him on Twitter at @martin_rogalski.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
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