Skip to main content

Medico-Legal Aspects of Mesothelioma in Australia

Because of the misfortune of having the Wittenoom mine located in its far north, Western Australia (WA) has one of the highest per capita rates of mesothelioma in the world. It is not surprising to find that the first claims for damages for contracting mesothelioma were brought in that State.

Causation

The issue which has most vexed asbestos litigation is, undoubtedly, that of causation.
There are three contexts in which the issue of cause potentially arises in asbestos disease claims:

1. Has a particular asbestos exposure ‘caused’ the disease suffered by the claimant?
2. Which one or more of a number of exposures to asbestos give rise to legal culpabil- ity for the disease suffered by a claimant?
3. Has the disease for which legal culpability exists caused the loss and damage suf- fered by the claimant with the disease?

These causation issues arise both in statutory workers’ compensation claims where the issue of fault in exposing the worker to asbestos is irrelevant (and so the causationissue becomes subject to statutory abrogation has the work exposure caused the disease?), and in common law damages claims (where the issue is usually) has the breach of a duty to take care (i.e. fault or breach of a duty imposed by a statute) caused the disease?
Although a good deal of court time has been occupied by physicians, pathologists, epidemiologists, medical scientists, and lawyers in arguing this issue, it would seem that its resolution has been achieved by the application of legal principles of reasonably long standing and is encapsulated in two judgments by Australia’s foremost jurist and most highly regarded judge, Sir Owen Dixon, former Chief Justice of the High Court.

Foreseeability

An employer will owe an employee a duty of care if there exists a ‘foreseeable risk of injury’ in the event that the employer fails to discharge the duty. Similarly the manufacturer of a product owes the user of that product a duty of care, if there is a foreseeable risk of injury in the use of the product, or if dangers, of which the manufacturer is aware, are not advised to the product user.
Thus, in order to establish that a duty exists, the employee or product user must show that there was, at the time of the alleged breach, a foreseeable risk of injury occurring as a result of that breach. Furthermore, the employee or product user, in order to claim damages as a result of the breach of duty, must show that the injury or disease that they have suffered was an injury that is the same type as that which should have been foreseen (as well as, as we have seen above, that the injury was caused or materially contributed to, by the breach of duty).
Labels:

Comments

Post a Comment

Popular posts from this blog

The mesothelial cell

The mesothelial cells line the serosal cavities of the body, the pleural, peritoneal and pericardial spaces. Geographically, across the serosal surfaces, mesothelial cells canbe seen to have a variety of morphologies between flat or cuboidal and showing few or a dense forest of microvilli. Although their important in vivo functions have not been identified, they have the potential to regulate cell traffic, the balance between coagulation and fibrinolysis, cell proliferation, and fibrogenesis within and around the pleural space. They likely represent the progenitor cell for mesothelioma. In in vitro studies, the mesothelial cell demonstrates a multitude of abilities. Mesothelial cells can produce most of the components of the submesothelial matrix, at amounts comparable to that of fibroblasts. They can also release growth factors such as TGF-beta and insulin-like growth factorI. The cells may regulate the fibrinolytic and procoagulant activities on their cell surface and in the pleural ...
Post a Comment
Read more

Novel Molecular, Epidemiological, and Therapeutic Issues in Mesothelioma: The Role of SV40

The rise in mesothelioma cases that has occurred since 1950 has been associated with the widespread commercial use of asbestos. However, less than 10% of asbestos workers exposed to high levels of asbestos actually develop the disease, suggesting that additional factors may increase an individual’s susceptibility to the carcinogenic effects of asbestos. In addition, about 20% of mesotheliomas are not associated with asbestos exposure, suggesting that alternative factors may also cause mesothelioma. * The SV40 SV40 is a DNA tumour virus which was introduced into a significant portion of the human population between 1955 and 1963 through polio vaccines and adenovaccines contaminated with the virus. SV40 and human tumours The discovery that SV40 produced tumours in hamsters led to the PCR analysis of human mesotheliomas for the presence of SV40. Our group was the first to investigate whether there was any correlation between Polyomavirus and mesothelioma, and this was accom- plished in tw...
Post a Comment
Read more

Mesothelioma Article: FREE DOWNLOAD

M alignant mesothelioma is a 20th century phenomenon and as we begin a new century it is timely to review the clinical, research, epidemiological and legal aspects of this disease. I t is a canser, and canser is " a slang or slang-like term for any malignant growth or tumor caused by abnormal and uncontrolled cell division". Cancer affects people at all ages with the risk for most types increasing with age. Cancer caused about 13% of all human deaths in 2007 (7.6 million). T umor is derived, via the Old French tumour , from the Latin tumor "swelling". It originally meant an abnormal swelling of the flesh. In contemporary English, tumor is synonymous with solid neoplasm. A tumor may be benign, pre-malignant or malignant. The nature of the tumor is determined by a pathologist after examination of the tumor tissues from a biopsy or a surgical excision specimen. T he epidemic of mesothelioma has been seen throughout the world, not just in Australia. In Europe mesot...
Post a Comment
Read more