Cancer victim Mathew Harrison Werfel has compensation payout reduced to $2.2m following landmark Supreme Court appeal

A cancer victim has had his asbestos compensation reduced by a million dollars but has successfully showed he was owed a duty of care, paving the way for more cases.

Mathew Werfel, 42, has been awarded $2.2m in compensation for cancer he contracted from breathing asbestos fibres. Pictured with his wife Jenny and three daughters, aged 10, 7 and 6, Mr Werfel’s legal win paves the way for more claims against Amaco Pty Ltd, formerly James Hardie. Picture: Supplied By Family

A father with terminal cancer from inhaling asbestos dust has had a million dollars knocked off his compensation payout.

But while the decision to reduce Mathew Harrison Werfel’s compensation to $2.2m has disappointed his family, they are happy the Supreme Court judgment has paved the way for more cases against Amaco Pty Ltd, formerly James Hardie.

Mr Werfel, a 44-year-old father of three, said no amount of money would make up for the milestones and years of his life he would miss.

“This case was never about me,” he said.

“From day one we were fighting on behalf of everyone across Australia who continues to be unknowingly exposed to James Hardie’s deadly asbestos products in their homes, workplaces, and schools.”

Mr Werfel was exposed to asbestos fibres between 1994 and 1997 when he was working for a contractor repairing fencing at Housing Trust homes.

He was also exposed when he was working on his own home in Pooraka in 2000 and again in Parafield Gardens in 2004.

He contracted a rare form of mesothelioma which only came to his attention when he discovered a lump in his groin.

Despite going into remission, doctors have given Mr Werfel a life expectancy of only two years.

Following an urgent trial before South Australia Employment Tribunal deputy president Judge Leonie Farrell, Mr Werfel was awarded $3.1 million in compensation.

James Hardie appealed the payout to the full sitting of the Supreme Court, arguing they did not owe Mr Werfel a duty of care and were hence not liable for his terminal cancer.

On Monday, Chief Justice Chris Kourakis and Justices Kevin Nicholson and Mark Livesey allowed the appeal, but only to reduce the amount of compensation to $2.2 million.

The court dismissed the rest of James Hardie’s appeal and held that the company owed a duty of care to current and subsequent owners and buyers of homes built using their materials and tradespeople who may remove or repair asbestos on those properties.

James Hardie argued that the group of people it owed a duty to was “indeterminate”, but the court held that while it was certain to be a large cohort, it would still be identifiable.

The court held that the company had breached its duty of care by failing to warn people of the risks of using its products.

Mr Werfel’s later work as a workplace safety representative led the court to conclude that if he had been warned of the risk of sanding asbestos, he would have taken precautions.

Mathew Werfel with his wife Jenny and three daughters, aged 10 Mya (back left), 7 Alana (front) and 6 Cadence (right). Picture: Supplied.

Mathew Werfel and his young family. Picture: Supplied.

The court held that as early as 1898 there had been evidence that asbestos dust was likely to cause harm because of its glass like qualities.

In 1963 a medical officer working for James Hardie shrugged off concerns about the products, saying it was not their problem once the sheeting left the factory.

Annie Hoffman, for Mr Werfel, told The Advertiser that despite the reduction in the compensation, the case was still the largest pay out to a person affected by dust disease in South Australian history.

“This case is hugely important for more than just Mr and Mrs Werfel,” she said.

“It’s impact is far reaching. The judgment opens up liability claims for hundreds if not thousands of people who have been affected by this product, some of whom won’t even have been diagnosed yet.

“The dollar amount of this case by far exceeds any other judgment in this state by about a million dollars.”

Mr Werfel said he hoped the lasting legacy of his legal battles was that every Australian would know of the asbestos risks which continue to be prevalent in our society.

“If I can prevent even one other person from contracting a deadly asbestos disease, this legal fight will have been worth all the energy we put in,” he said.