Jock Anderson

Australian courts are wrestling with the tricky question raised by a New Zealand asbestos victim of whether a company can be sued in one country for damage done by its product in another.

A decision is expected soon on whether a former New Zealander with asbestos-related lung diseases can take his compensation claim against building products giant James Hardie to Australia’s High Court.

The landmark compensation case – which stumbled at the Australian Court of Appeal this year -  is being handled by leading personal injury and insurance law barrister Graeme Little. The case has international compensation ramifications.

Mr Little, who has sought special leave to appeal the decision to the High Court of Australia because he believes it is a case of great public importance, is a New Zealand lawyer based in Sydney for more than 20 years and who has just returned to practice in Auckland.

He is a Senior Counsel, the equivalent rank of Queen’s Counsel, a former judge of the Compensation Court of New South Wales and former member of the Dust Disease Tribunal.

In July the Court of Appeal in Australia overturned a landmark $320,000 payout to 61 year old Bernard Frost, who was exposed to the killer fibres while working for James Hardie subsidiary Amaca installing insulation products in Cambridge between 1963 and 1966.

Mr Frost was diagnosed with asbestos-related lung diseases in 2000, four years after moving to Queensland.

In what was believed to be the first payment in Australia to a New Zealander poisoned by asbestos in this country, Australian courts made the award a year ago after the Dust Diseases Tribunal in New South Wales accepted Mr Frost’s case against James Hardie subsidiary Amaca.

At the time Mr Little, who has been working on several related test cases, said the decision could pave the way for thousands of New Zealanders to sue Australian asbestos suppliers.

He said New Zealand accident compensation legislation meant that if a person had cover they could not sue in New Zealand. “But it doesn’t mean you can’t sue elsewhere,” Mr Little said.

He said at the time that if James Hardie had done the wrong thing in New Zealand, they could be sued in Australia.

Dismayed by the recent overturning of the claim, Mr Little said the Australian Court of Appeal decision meant that, because of the limitations of accident compensation legislation in New Zealand, James Hardie could dump blue asbestos in New Zealand without any ramifications and use New Zealanders as guinea pigs.

Mr Little told CaseLoad yesterday he expected to know in about eight weeks if the Australian High Court would hear the appeal. He said he was optimistic because of the important and very tricky product liability issues at stake.

Feed back on this story to jockanderson@ihug.co.nz