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 March 2008

  Asbestos litigation -   A recent decision by the                After a trial lasting 15 days and
                          Supreme Court of Western                involving significant medical and
         not over yet     Australia highlights the                legal issues, Justice Beech held
                          continued vitality of asbestos          that Mr Lo Presti had contracted
Lo Presti v Ford Motor    litigation in Australia.                asbestosis as a result of Ford's
           Company of     Companies and insurers with             negligence. The trial judge found
                          potential exposure to asbestos          that Ford should have provided
     Australia Limited    claims need to ensure they              some warning (as a label or insert in
                          are prepared for litigation             Ford's brake spare parts) as to the
     [2008] WASC 12
                          well into the future.                   dangers of asbestos and possible
                                                                  risk minimisation techniques.
                          The decision                            The plaintiff was awarded an
                          Mr Lo Presti was a mechanic. He         agreed sum of $840,000.
                          worked for two different Ford
                          dealerships in the period 1970          The range of possible
                          to 1985.                                defendants
                          During the 1970s and 1980s              The decision in Lo Presti
                          vehicles were fitted with brakes        demonstrates the way in which
                          lined with fiction material including   "nontraditional" defendants can be
                          asbestos. Mr Lo Presti alleged that     caught in the cross hairs of litigation.
                          he was exposed to asbestos when         In Australia the "traditional"
                          he handled and cleaned brake linings    defendants in asbestos claims have
                          while servicing Ford vehicles.          been manufacturers of asbestos-
                          Lo Presti sued Ford. He alleged         containing products such as asbestos
                          Ford negligently failed to warn of      cement ("fibro"). However claims are
                          the possible dangers associated         also being made against companies
                          with asbestos which could be            with peripheral involvement
                          liberated from the brake linings.       in asbestos - for example
                          As a result Mr Lo Presti alleged        hardware stores and occupiers
                          he contracted asbestosis - a lung       of premises where asbestos
                          condition caused by asbestos.           products may have been used.

                          Ford was not the manufacturer of        The New South Wales Dust
                          the brake linings. However Ford did     Diseases Board classifies industries
                          admit that vehicles manufactured        in premium order reflecting
                          by it were fitted with brake linings    risks of potential dust (including
                          containing asbestos and that Ford       asbestos) claims. Following fibro
                          also supplied brake linings to its      manufacturing in premium order
                          licensed dealers and distributors.      are rubber tyre manufacturing,
                                                                  shipbuilding and carpentry
Lo Presti v Ford Motor Company of Australia Limited

                                               services. Among the next group         n   Employment records
                                               are textile manufacturing,             n   Any records of work undertaken
                                               petroleum refining, iron and steel,        on asbestos containing plant
                                               electricity supply, construction,          or machinery - for example the
                                               and sea freight industries.                removal of lagging from boilers
                                               In the United States asbestos-             or pipework
                                               related claims have been made          n   Documents showing the
                                               against thousands of entities              suppliers of asbestos-containing
                                               listed in 75 out of the 83 different       products (for example
                                               industry sectors recognised by             insulation) or asbestos-related
                                               the US Department of Commerce.             services (installation or removal
                                               However claims appear concentrated         contractors)
                                               in the construction, chemical,
                                               metal product and machinery            CBP assistance
                                               manufacturing industries.              CBP has experience in dealing
                                               The range of possible defendants       with all aspects of asbestos-
                                               in asbestos claims is extensive.       related claims from the provision
                                               With male mesothelioma (a              of advice on policy wording and
                                               malignant condition caused by          interpetation to the conduct of
                                               asbestos) claims not expected to       litigation at trial and on appeal.
                                               peak in New South Wales until 2014     We are happy to assist with any
                                               companies and insurers within the      questions on this complex and
                                               relevant industry categories should    important area. Please feel free
                                               be prepared for involvement.           to contact David Miller on +61 2
                                                                                      8281 4419 or
                                               What steps to take?
                                               The events that give rise to
                                               asbestos claims usually took place
                                               decades ago. The most important
                                               thing for companies and insurers
                                               to do is to preserve records that
                                               might be relevant to claims.
                                               Steps should be taken to
                                               preserve if possible:
                                               n   Insurance records including
     David Miller
                                                   workers' compensation and
     Special Counsel
                                                   public liability policies. In
     T: 02 8281 4419
     E:                             particular any extensions or
                                                   endorsements of the policies
                                                   should be recorded

 T   61  881 4555      Level 4,  Park Street    DX 80 Sydney                                           Colin Biggers
 F   61  881 4567      Sydney NSW 000            Advoc Asia member                                       & Paisley
 E      Australia                                                                          ABN 38 941 300 979

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