Maryanne Gatt's (left) father John, died only four weeks after being diagnosed with an asbestos related disease and had no time to claim for compensation. Picture: Rohan Kelly Source: The Sunday Telegraph
Asbestos disease is a quick killer, snatching its victims in agony within just weeks of diagnosis. But a cruel NSW legal logjam means unless victims lodge a compensation claim in their dying days, their bereaved families are left with nothing. Jennifer Sexton reports.
When doctors told Maryanne Gatt her father had mesothelioma, she mouthed to her sister, a nurse, across his hospital bed: "What's that?"
The diagnosis on Christmas Eve in 2010, that John Gatt had contracted the rampant cancer, came just months after a six-week holiday with his wife, Lily, through his birth country of Malta, and then Greece and Italy.
There were few signs on the trip that the cancer was spreading in a thin tissue across the internal organs of this fit 72-year-old. His appetite had waned and he felt a little tired, but had done a lot of walking.
Back home in Sydney's south he underwent 26 tests, including MRIs and CT scans. When diagnosis was finally made after a lung biopsy, it was rapidly followed - just four weeks later - by his death.
His weight had plunged from 60kg to an emaciated 50kg. His family did whatever they could, through the shock, confusion and sadness of those final weeks, to keep him comfortable. He spent his final two weeks at home in Menai, surrounded by the garden that he had attentively nurtured in retirement.
It never occurred to the family that this precious time should be spent talking to lawyers.
The only mention of lawyers came from the brutal comment of the doctor who delivered the diagnosis: "Lawyers love mesothelioma."
Maryanne told Agenda: "Dad was crying when that doctor left the room. He left us with no shred of hope."
After his death on January 25 last year, Gatt's family was soon to suffer another shock. They are not sure, but they think Gatt's exposure to asbestos used in lagging at the paper factory he worked at for 30 years caused his disease. Yet his wife's eligibility to make a claim for compensation before the Dust Diseases Tribunal had died with him.
Had Gatt, in his lifetime, filed a statement of claim, the family would have received up to $300,000 in damages.
"At the time, you are not in any frame of mind to be dealing with solicitors. You don't even think about it," Maryanne says. "It's an aggressive disease. You are faced with managing a crisis and the fact that you have to lodge a claim before they pass away; it's just wrong."
Last year Maryanne wrote a submission to the Law Reform Commission when it was reviewing this unfairness in the law: "There needs to be some allowance for people in our situation. We mustn't be the only ones in a situation where the death occurs so quickly and the family is in no mental state to consult lawyers. Dad was certainly in no state to talk to lawyers."
The commission agreed, and recommended that the NSW government introduce legislation to give better access to compensation for victims' families and 12 months after a victim's death to make a claim.
It proposed scrapping a complex legal hurdle called the Strikwerda principle - which means there is often no point in a defendant making a claim for compensation after the victim has died.
But Attorney General Greg Smith sparked outrage among asbestos support groups and families with his announcement a week ago that the O'Farrell government had thrown out the changes. Smith cited cost and said under the existing compensation agreement between the NSW government and the company responsible for manufacturing most of the nation's asbestos, James Hardie, no changes to compensation laws could be made.
Already three other states have implemented the changes - Victoria, Western Australia and South Australia - abolishing the draconian Strikwerda principle.
"He needs to rethink what he has done," Maryanne says. "Why should we be different to other states? No one knows what it's like, until you are in that situation.
If it was his (Smith's) family, he might think differently."
Lawyers, the Opposition, the Greens and asbestos victims group the Bernie Banton Foundation last week called for a rethink.
"It's a gross injustice," NSW Greens MP David Shoebridge says. "Do you want to spend the last three or four months with your family dealing with lawyers, getting statements of claim on, or do you want to spend your time with your family and children?
"The next wave of asbestos victims are going to be home renovators and the children of fathers who came home covered in asbestos - and I think for many people, that's quite frightening."
Karen Banton, widow of mesothelioma sufferer and advocate for a better deal for victims, Bernie Banton, said the victims of asbestos were getting younger and more families will lose a father or mother when children are young.
"As far as we understand, the numbers of victims haven't even peaked yet. Claims will keep increasing until 2020," Karen Banton says. "Young families have been left without financial security, and there will be more as well."
She joined the Opposition in calling for the government to reopen negotiations with James Hardie to find a way to scrap the Strikwerda principle without jeopardising the existing $1.5 billion compensation agreement. "They need to get Hardies back to the table," shadow attorney general Paul Lynch says.
Joanne Wade, a lawyer with Slater and Gordon who has represented many victims of asbestos, says: "The financial cost of implementing it over, say, the next 40 years are minimal. At most, the projections by KPMG are $184 million over 40 years - only $4.6 million a year. This is in comparison to the financial burden faced by victims' families where they miss out on thousands of dollars of compensation after the death of their loved one."
A spokesman for Mr Smith says: "The government acknowledges that no compensation can possibly make up for what asbestos victims and their families go through."
But he gives victims little hope Mr Smith was willing to get Hardies back to the table to negotiate a way around the hurdle. "James Hardie had made clear that it will not waive its rights under the Funding Agreement.
"The government's decision that it was not appropriate to implement the Law Reform Commission's recommendations was a hard decision, reluctantly made, in what we believe to be the overall best interests of both current and future asbestos victims and their families."
Maryanne feels particularly sorry for younger people who will be taken by the disease and who leave behind families short-changed by the government. "This happens to young people as well. The law needs to change for anybody else who has to go through this."
