Justice

Landmark case for asbestos lung cancer claimants

A landmark ruling means a small but significant number of Kiwis who have developed terminal lung cancer through secondary exposure to asbestos will now be covered by ACC.

About 10 Kiwis a year with mesothelioma – a fatal and aggressive lung cancer – apply for ACC cover but are denied because the disease is not work-related, and has - until now - not been covered under ACC law.

But a High Court ruling, delivered on Monday, sets new precedent for those who have developed mesothelioma, or potentially other illnesses and injuries directly related to asbestos, as a consequence of secondary exposure to the harmful substance.

This will make them eligible for things like funeral costs, weekly compensation and treatment costs.

It would also include funding of the expensive, life-prolonging drug Keytruda, which is not currently Pharmac-funded for lung cancers, and costs thousands of dollars per treatment.

While the number of Kiwis who would be directly affected by this ruling was not large, it was significant.

Especially as New Zealand entered what’s known as the ‘third wave’ of asbestos-related illness – the first wave being the people who mined the mineral and converted it into construction supplies, the second being the tradies exposed on construction sites, and the third being the families and bystanders affected by secondary exposure.

Asbestos was used widely in New Zealand until the 1980s, when its harmful effects became known.

A James Hardie advertisement in 1955 stated: "The material can be cut, scored and sawed with the normal tools of trade. It is non-irritating to the skin and non-toxic".

'Personal injury caused by accident'

The precedent-setting ruling by Justice Jillian Mallon, found Deanna Trevarthen should have been covered by ACC after developing malignant mesothelioma due to secondary exposure to asbestos.

Mesothelioma is peculiar in that about 95 percent of cases were developed after exposure to asbestos as the single agent. It also has a long latency period – about 40 years.

Trevarthen’s mesothelioma developed after she was exposed to asbestos as a child, in the 1970s.

Her father was an electrician and she would hug him when he arrived home, still in his work clothes.

Deanna (right) with her father Phillip (left). Trevarthen would hug her father when he got home from work, unknowingly being exposed to asbestos. Photo: Supplied

Tumours could develop after a single exposure to asbestos, but the risk rose when there were numerous exposures, as was the case for Trevarthen and other children.

There were also cases of wives inhaling asbestos while cleaning their husband’s work clothes, or people being exposed during DIY work.

Trevarthen was diagnosed with the fatal cancer in 2015 and then applied to ACC for cover.

While ACC legislation provides cover to people who have contracted mesothelioma from work-related exposure to asbestos, this did not apply to Trevarthen as her exposure was secondary.

Therefore, she needed to claim cover under a separate part of ACC law, and show that her mesothelioma was “a personal injury caused by an accident”.

Her initial claim was denied by ACC on the basis she was seeking cover for personal injuries caused wholly or substantially by a disease (which is excluded), and because she could not identify a specific occasion of asbestos inhalation which caused the disease.

“You’re right, she’s not here. We’d much rather have her here and never have had to do this, but life throws rubbish things at you sometimes. And it’s how you deal with them.”

Trevarthen died in 2016, on the day her case review decision was issued. The review upheld ACC’s decision, as did the District Court.

But Trevarthen’s sister-in-law, and estate trustee, Angela Calver promised Trevarthen she wouldn’t let this go.

And on Monday, Justice Mallon sided with the appellants, ruling the fatal cancer constituted a personal injury, and it was caused by inhaling asbestos.

If it could be proven that inhaling asbestos was an accident, then the claim should be covered, which Mallon believed was proven.

In her judgment, she said despite the arguments in the case, it was not necessary to identify the specific occasion of asbestos inhalation which caused her mesothelioma to show that the inhalation was an accident.

Promise to a loved one

Calver said the three-year court battle was about seeing through the promise she made to Trevarthen.

The way the ACC system had been dealing with people who had become ill due to second-hand exposure to asbestos was “unjust”.

Trevarthen’s death was a tragedy, “but if this can be part of her legacy in the world, that would be great”.

“You’re right, she’s not here. We’d much rather have her here and never have had to do this, but life throws rubbish things at you sometimes. And it’s how you deal with them.”

Calver said she was glad other families would not have to go through the same stress of having to raise thousands of dollars to access the treatment they needed.

“There are many wars being waged within the field of asbestos-related conditions, so this is a small win.”

In 2016, the government decided Pharmac would fund Keytruda treatment for skin cancer, but lung cancer was not covered.

Trevarthen’s family fundraised and used all their savings to raise the $80,000 – $8000 every three weeks – to fund her access to the drug in order to prolong her life, and give her better quality of life for the short time she had.

While this was an important case for people with mesothelioma, Calver said she hoped the Government would change the law to allow cover for all asbestos-related diseases where a reasonable link to another person’s occupational exposure can be established.

This is something Labour promised to consider in its 2017 election manifesto, and in January last year ACC Minister Iain Lees-Galloway said he was considering this change, and had asked for official advice on changing coverage.

A small but significant win

John Miller Law solicitor Beatrix Woodhouse, who had been working on this case for the past three years, said due to the peculiar nature of mesothelioma, and its direct link to asbestos exposure, the ruling was unlikely to impact many other illnesses.

“It won’t open the floodgates,” she said, referring to the number of ACC claims affected by the ruling.

But it would make a significant difference to the length and quality of life for a handful of claimants who had mesothelioma.

“This case has been my leading interest for a few years, so I am pleased with the result – but this is obviously not about me,” Woodhouse said.

“There are many wars being waged within the field of asbestos-related conditions, so this is a small win.”

The division between work-related cases and cases of secondary exposure was “unfair and unequitable”, she said.

“It’s a battle that people have been fighting for some time, and we’re just lucky with this particular client, she was willing to take it all the way.”

While Trevarthen died in 2016, there had been a positive outcome for other people in the same situation, she said.

For those who could not get ACC cover, there was an avenue open to sue. However, people had found this a difficult route to pursue, owing to evidential difficulties arising from this unique disease

ACC has 21 days to appeal the decision, and a spokesperson said it was currently considering the decision.