KERRY O'BRIEN: First tonight - an update on the story of disgraced asbestos company James Hardie.
And under intense pressure from last week's damning report into its move offshore, Hardie's has given up its attempts to replace existing court compensation with a new lawyer-free statutory system.
Hardie's has also been heavily criticised for merely standing down its heavily criticised CEO Peter Macdonald - now under threat of criminal charges - instead of demanding his resignation and allowing him to continue to run Hardies' important American operation.
Tonight, a former Hardie managing director says he finds it hard to believe that key members of the Hardie Board were unaware of the actions of their managing director.
Matt Peacock reports.
MATT PEACOCK: Belinda Dunn was scarcely four years old when she inhaled the deadly asbestos fibres that eventually gave her cancer.
She was 30, her new-born son four weeks old, when doctors gave her the terrible news.
BELINDA DUNN: You can't be told you've got cancer and give up on a baby.
You get given this baby, and you're looking at this baby thinking, "I can't die!"
MATT PEACOCK: She hired lawyer Tanya Segelov to help her determine just where she'd been exposed to the asbestos that gave her the mesothelioma.
Extensive questioning of the family revealed there'd been home renovations conducted 30 years ago.
Tanya Segelov tracked down the plans and then the builder.
TANYA SEGELOV, LAWYER: He had a very distinct recollection of the job because Belinda was such a small girl and she climbed on to the top of this pile of sheets and had been singing, 'I'm the King of the Castle' and he actually told her to get off because he was scared she'd fall.
Once I had that I could place Belinda on top of the sheets, which I knew were asbestos cement corrugated sheets made by James Hardie.
MATT PEACOCK: Belinda Dunn's case is typical of the so-called third wave of asbestos victims - people who've never worked in the industry, but who have encountered asbestos incidentally in their everyday lives.
She maintains that without the detective work by her lawyer she and her baby would have been lost.
BELINDA DUNN: They went into battle for me, and as much as it's a horrible process, they eased the pain, because it's daunting going into a court, but they were there to back me up.
They were brilliant.
MATT PEACOCK: Three years ago Belinda Dunn won a settlement from the foundation that James Hardie left behind in Australia, after lodging her claim before the NSW Dust Diseases Tribunal .
It's that very tribunal Hardie insisted it wanted to bypass.
MEREDITH HELLICAR, CHAIRMAN, JAMES HARDIE INDUSTRIES: $432 million to go into the pockets of lawyers.
I think it's worthwhile finding a better mechanism, and I believe we owe it to our shareholders to see if we can find a mechanism whereby we can reduce those costs and any other costs that aren't going into the pockets of claimants.
MATT PEACOCK: As a former Hardie managing director, David Say played a prominent role in previous strategies to reduce the company's asbestos costs.
More than a decade on, he admits to feeling uncomfortable with the tactics followed by some of the company's insurers.
DAVID SAY, FORMER MANAGING DIRECTOR, JAMES HARDIE INDUSTRIES: The awards to someone who has died, or to their relatives, was always lower than if they were still alive, even if they had hours to live.
Obvious temptation to lawyers for the insurers to spin it out.
It was a horrible situation.
MATT PEACOCK: Legislation has since ensured that the victim's claim before the Dust Diseases Tribunal lives on, even after the victim dies, and the tribunal frequently holds hearings next to the claimant's hospital bed.
Judge Peter Johns, who retired from its bench last week, says it would be difficult to safeguards victims' rights under any statutory scheme.
JUDGE PETER JOHNS (RET), DUST DISEASES TRIBUNAL: The best way to determine a person's rights is before an independent judicial tribunal which is subject to the scrutiny of courts of appeal.
MATT PEACOCK: Yeah, but that's just lawyers' talk.
I mean, you would say that - you've got a vested interest?
JUDGE PETER JOHNS: You would have to say that an alternative scheme of necessity will diminish the individual's rights, and it potentially would have an effect on what might be a fair recovery of damages.
MATT PEACOCK: It's a view echoed by Belinda Dunn.
BELINDA DUNN: My case is very different to the next person's, who's very different to the next person's.
You've got to look at, in my case, who is going to look after my child?
MATT PEACOCK: In the notes prepared for Hardie CEO Peter Macdonald's report to the board meeting of February 2002, Belinda Dunn's settlement is referred to as one of the "recent outrageous cases" - "It is possible to see a scenario where every mesothelioma victim in Australia 'remembers' a connection, no matter how spurious, to the former James Hardie product.
Given the Dust Diseases Tribunal's propensity to view itself as the source of compensation for victims rather than a legal arbiter of the facts, claims could run at very high levels, well beyond the ability to be funded by the foundation."
Talks with the ACTU on how to boost the foundation's fund have until now stalled because of the company's opposition to the Dust Diseases Tribunal, but overnight the company appears to have buckled.
GREG COMBET, ACTU SECRETARY: And that's an important breakthrough, and I expect those negotiations will start from the basis that we talk about the current compensation system, identify ways in which we can improve it and cut down costs, but that we provide certainty for victims, both in compensation outcomes and in their right to representation.
MATT PEACOCK: Yesterday, Peter Macdonald stepped aside as CEO, but his predecessor, David Say, says if he's to go so should the board.
DAVID SAY: I don't believe for a moment he was the only person who knew about the problems and the problem with setting up the fund, if anybody knew about it.
He would have been had to have shared that with the chairman, the audit committee, the board members.
MATT PEACOCK: Australia has used more asbestos cement building products per head of population than any other country, and most of that supplied by James Hardie.
Health authorities are now bracing themselves for thousands more cases of disease caused by the use of those products.
David Kilpatrick specialises in identifying asbestos hazards.
WOMAN: On the weekend we pulled out this stove to clean behind it.
DAVID KILPATRICK, INDUSTRIAL HYGIENIST: Yes, I can see a black label down the bottom there.
I'll take a sample off that, if you don't mind.
Look, it's terrible.
Most people, very unaware, really most people are.
I just plead with people - don't hack into asbestos in your house.
Find out where it is.
MATT PEACOCK: It's advice that comes too late for Belinda Dunn, who lives on borrowed time to be with her son.
BELINDA DUNN: We shouldn't be sort of making everyone scared.
We should be sort of saying, "OK, from now on protect yourself, find out if it's asbestos and remove it safely and properly."
KERRY O'BRIEN: In our interview with Hardie's chairman Meredith Hellicar six weeks ago after the asbestos inquiry had been finished but before the report was handed down, Ms Hellicar declined to answer a number of questions until after the Jackson Report was released.
She gave a very clear undertaking that night to come back for round two after the report's release.
Let me refresh your memories.
KERRY O'BRIEN (FILE FOOTAGE): When Mr Jackson QC does bring down his report, will you come back on this program and address those questions that you haven't addressed tonight?
MEREDITH HELLICAR: Yes.
KERRY O'BRIEN: The devastating Jackson report was released more than a week ago, we renewed our invitation to Meredith Hellicar on that day and have repeated that invitation several times.
Yesterday Ms Hellicar was available to talk to newspapers but, according to a Hardie's spokesman, was too tired to talk to us.
She declined again today because, according to another Hardies spokesman, she wants to wait until negotiations on a framework for compensation are concluded.
He could not say whether that would be next week, or next month.
The invitation remains open. |
