Can ACC cover asbestos-contaminated sand claims?

The country is still reeling from the news of the recall of potentially asbestos-containing play sand, sold at Kmart for several years.

The prospect of children, and a wide range of people who work with children, being exposed to a cancer-causing substance is deeply unsettling.

I’m a legal academic, so you should turn to health, safety and support organisations for information on asbestos and associated conditions. But I can comment on the possibility of ACC cover and the practical steps that might be important for receiving ACC support.

On expert advice, Australian product safety authorities have concluded there is a "very low risk to human health".

People generally get cancer from asbestos by inhaling asbestos fibres. The most dangerous form of asbestos, which is more likely to result in fibres, has not been found in the sand, but its dryness and how it is played with creates a risk of inhalation.

The greater the level of exposure, the greater the risk.

For many people who might have encountered the contaminated sand, the risk is low, but it is possible to get mesothelioma, a rare and aggressive form of lung cancer, from a one-off exposure to asbestos fibres.

There is a long latency period — it can be decades from exposure to diagnosis. Once the condition is diagnosed, typical life expectancy with treatment is about a year to 18 months.

In general, ACC covers injuries caused by accidents but excludes illnesses (disease and infection conditions and conditions that develop gradually).

One relevant exception is that there is scope for cover for work-related illnesses.

For people who develop cancer as a result of exposure to asbestos-contaminated sand (assuming the rules do not change).—

• When the exposure was at work: "Lung cancer or mesothelioma diagnosed as caused by asbestos" is on a schedule to the Accident Compensation Act which triggers a special approach to cover which essentially means that the claimant gets cover unless ACC can show that the cancer was caused by non-work factors.

• For everyone else (children, parents, grandparents, etc): The definition of accident includes "inhalation of any solid ... or foreign object ... on a specific occasion", so people who get cancer due to inhalation on a specific occasion get cover, but, where causation occurred over a long period of time, there is arguably no cover.

These claimants have to show causation on the balance of probabilities.

Cover for mesothelioma following an inhalation accident was considered by the Court of Appeal in the case of Calver.

The case was about Deanna Trevarthen who, as a child, inhaled asbestos fibres brought home by her father on his work clothes. The Court of Appeal upheld the High Court’s finding that Trevarthen had cover for mesothelioma as personal injury caused by an "inhalation ... on a specific occasion" accident.

The High Court’s approach in this case gives us some insight into how the courts might approach a sand-related claim.

The court made it clear that inhalation on "a specific occasion" was not limited to literally one breath and an "occasion" could be something like inhaling fibres over the course of a weekend renovation.

The High Court also stated that, where there has been exposure over time, the exposure that brings the person over the line in terms of how much asbestos was needed to trigger mesothelioma in that person could count as a "specific occasion" leading to cover.

That analysis is on the generous side and was not tested in the Court of Appeal, but is in keeping with a number of cases that say that the courts should take a generous approach to the reading of the ACC Act.

If someone has cover from ACC, then there are two main consequences.

First, they can be eligible for entitlements, including compensation for lost earnings, treatment, and lump sum compensation for permanent impairment.

For mesothelioma specifically, ACC generally recognises that the condition is so severe that it qualifies for the maximum lump sum of almost $180,000.

The second consequence of cover is that you cannot sue for compensation.

Although ACC cover might be available in theory for people who get sick from asbestos-contaminated sand, that they will not be diagnosed until decades in the future raises some practical problems.

When any future claim is made, ACC will make a decision based on the available evidence.

If that evidence includes material from close to the time of exposure, then the case for cover will be stronger.

So, for anyone who thinks they, or children they care for, may have been exposed to contaminated sand: collect any evidence of possible exposure and keep it in a safe place.

At the next GP visit, mention the possible exposure so it can go on the medical record (but don’t seek a GP appointment or lodge a claim with ACC solely to report possible exposure).

Bearing in mind that any symptoms, if they do arise, are likely to be at least a decade in the future, this step will mean that exposure can be considered as a possible cause and make the ACC claims process go more smoothly. — Newsroom