BHPBilliton and the victims of asbestosPublished by MAC on 2004-11-02
In 2000 BHP cheated local communities along the Ok Tedi and Fly Rivers from just and appropriate compensation for the environmental damages caused by their Ok Tedi mine. Now in Australia, their efforts to unjustly pay out asbestos victims for liability suffered as a result of their work with BHP have been exposed on the Insight Television Program. A transcript of the program follows.
BHPBilliton and the victims of asbestos
November 2, 2004
JENNY BROCKIE: If ever there was a gap between what the community expects and the way an individual company behaves, it's apparent in the James Hardie asbestos debacle. As people continue to die of asbestos-related disease, the disgraced building products company drags its feet on providing the necessary money for future compensation - arguing it must look after its shareholders. To add insult to injury for asbestos victims, James Hardie's former chief executive recently walked away from the company with a payout worth nearly $9 million. Tonight - balancing business with what's decent. But first, Ruth Balint reports on the behaviour of another big Australian company, BHP Billiton.
REPORTER (Ruth Balint): This is Geoff Arbon. He worked in the BHP shipyards of Whyalla for a decade. About 18 months ago he went to the doctor, complaining of a cough.
GEOFF ARBON: I developed this cough and couldn't shake it and my doctor said "We better send you for a chest X-ray." And the chest X-ray showed that there was some abnormality there and then he sent me for a CAT scan and the CAT scan showed that I had pleural plaquing on the lungs and I went "Oh, my God", you know, that was - because I didn't know what...
MERILEE ARBON: That was devastating news, wasn't it?
GEOFF ARBON: What the extent of it was, you know, because you think asbestos, asbestos. Geoff was diagnosed with pleural plaque, a thickening on the lining of the lung. It isn't life-threatening or even disabling. But it is evidence of exposure to asbestos. Geoff contacted BHP to pay his medical expenses.
GEOFF ARBON: He wanted me to write out a work history or something like that and I sent that back to him. They in turn wanted me to go and see a Dr Antic in Adelaide to have a breathing test and lung function test and all that sort of stuff. So consequently I did that and came out of there feeling quite good because he said it's not life-threatening, I'm fine and all that sort of stuff. Whyalla was built on the back of BHP's steelworks and shipbuilding industry. Over 20,000 people worked in the shipyards during its 37 years of operation. After contacting BHP, Geoff received a letter in August of this year.
GEOFF ARBON: And then I received a letter from BHP offering me $20,000 and I thought, "Well, that's a bit strange because if they say there's nothing wrong with me, why are they offering me $20,000?" So I got pretty upset about it again. I'm going, "People don't give you $20,000 if there's nothing wrong with you." So that made me feel pretty bad. Geoff is not alone in receiving one of these letters of offer. Hundreds of former BHP employees have received payouts for pleural plaque. Increasingly, former workers see this apparent generosity as an attempt to prevent BHP having to pay out more later.
MAN: You'd go to work in there most days and the lagging would be falling down on you like snowflakes. It is a Wednesday in late October. About 40 former BHP workers have turned up to a meeting organised by the Maritime Union of Australia to discuss the issues surrounding exposure to asbestos.
JAMIE NEWLYN, MUA: It is a very terrible disease that in most cases does not come out for 20, 30 or 40 years.
BRIAN: I mean, I'm up to 30 years now. I was 16 when I went to the shipyards with Norman and everybody else. I mean, 30 years and you're starting to think - I've got little kids, you know, and you don't know what's happening and it starts playing on your mind. You hear this 30, 40 years, you don't know what's around the corner.
BUTCH: Don't think twice about doing what you want to to get anything off them. Because they've been killing us and they've known about it and they keep bloody doing it. So anything of any problems, just go ahead and don't think about what it's going to cost them or anything. You go for it. Because it's your life and your family's life. 130 Little Collins Street, Melbourne 3000 Royce Babidge worked for BHP for 21 years. He found out he had pleural plaque about 10 years ago.
ROYCE: I did an apprenticeship. I started in 1950, worked right throughout the works area in town maintenance of houses, building toilets with asbestos and even putting malfoid on the roofs of railway carriages which contained asbestos and we didn't know.
REPORTER: You weren't told of the dangers?
ROYCE: No, never.
REPORTER: Have you been checked?
ROYCE: I've had a payout from BHP for $29,000 10 years ago. Being concerned like I was, I thought I'd set myself up with a house for the wife and kids and that would be that. At least they're covered if I'm not. So, I guess there were at that time a lot of others claiming off BHP as well. We all fell into the same little rut. Jane McDermott, a lawyer with Slater and Gordon, the national legal firm that has represented many victims of James Hardie products, has come to Whyalla to discuss the legal options of workers exposed to asbestos. The next day following the meeting, Royce visits Jane to talk about his concerns.
ROYCE: Tightness in the chest and some pain comes and goes occasionally even now, but it's developed more since then with the coughing, spitting, wheezing in the chest.
JANE McDERMOTT, LAWYER, SLATER AND GORDON: How do you feel now having taking it, like, now you're 10 years older, you've got three dependent children and your wife. You've come here today and what would you like us to look at?
ROYCE: Well, the inadequacy of the payment. In hindsight, at the time it seemed fair, but I argued with them on that point and got nowhere. And they said that's what they would give me and if I wasn't prepared to accept it then forget it, you know. And that's just the problem. Royce might develop something more serious, 130 Little Collins Street, Melbourne 3000 like mesothelioma or asbestosis, and normally could be entitled to compensation in the vicinity of $100,000 to $300,000. But by taking the $29,000, Royce may have tied up his options for future compensation from BHP.
JANE McDERMOTT: It seems to be a way in Whyalla of hushing the people up here because the settlements are usually confidential, they're not allowed to tell other people. The company, I hear, is very strict about that and tells people "You can't disclose this settlement amount to anybody." And I just think it's causing them to - a culture of being quiet about it.
REPORTER: So you think it's hush money?
JANE McDERMOTT: Well, whether it's hush money, I mean, it is compensation for pleural plaques, but it's certainly not in the range of what they are potentially liable to pay. Whyalla, the steel city. It was the promise of BHP employment that brought Tom Pall with his wife here to work in the shipyards. He's already suffering the effects of asbestos exposure.
REPORTER: You lose breath very easily, Tom.
TOM: Oh yeah.
REPORTER: How long has this been going on?
TOM: Going on for a while, but the last three or four months I've been on antibiotics. I've approached BHP about it, they sent me down to Dr Antic in Adelaide, they paid the expenses and stuff. And after a while they offered me $7,500.
TOM: BHP, they offered me $7,500. Well, I didn't accept it.
REPORTER: Why didn't you accept it?
TOM: I didn't think it was enough money. (Coughs)
REPORTER: If you accept it, is that...
TOM: I would have been clean finished, with no more claims. That would have been it. So any expenses I had after that, I would have had to have pay for it. Geoff Arbon didn't accept his offer of compensation either. Two months later, he receives another letter from BHP. It says that the settlement would ordinarily include a term "to ensure that you are not precluded from seeking further compensation should your asbestos condition deteriorate."
GEOFF ARBON: When the lawyer read the letter, it doesn't actually mean that. It means that I can't sue BHP. I would have to go and sue the manufacturers of the asbestos. It's impossible to know how many workers may develop serious illnesses. Lawyers 'Insight' spoke to believe the small one-off payments for pleural plaque mean that BHP will never have to pay out the larger amounts for fatal diseases like mesothelioma. And BHP says it has never paid anyone a second time.
JENNY BROCKIE: Ruth Balint with that report. Well, we did ask BHP Billiton to take part in this program. The company declined. It sent 'Insight' a short statement saying it will meet all its liabilities, and pointed out that all claimants are advised to seek legal advice. Well, Jane McDermott you're a lawyer and you're one of the people they're seeking legal advice from. What's wrong with BHP offering this compensation? At least they're offering something.
JANE McDERMOTT, SLATER & GORDON LAWYERS: Well, they are offering something, Jenny, but as you can see, the amount of people affected by asbestos in Whyalla, it's enormous. They had over 30,000 employees over 30 years. This compensation is just something that recognises an asbestos problem but in no means goes to the heart of the problem which is what does a company like BHP - what should it be doing as a good corporate citizen. Is it out in the community, is it advising people of the public health risk involved, is it running programs of awareness for the community, is it looking at everything it should be looking at in light of this - its enormous asbestos liability?
JENNY BROCKIE: Now, as I understand it, BHP is saying that it doesn't stop former workers from coming back and seeking further compensation, is that your understanding of the contracts you've seen? What have you actually seen?
JANE McDERMOTT: Of some of the agreements filed with the industrial court in SA, prior to about this year or last year, people were prohibited from bringing another claim. However, that has recently been amended and should someone who has pleural plaques go on to develop mesothelioma, they would be able to bring another claim. However, should they have lung cancer, as so many people who smoked and worked with asbestos do develop, or asbestosis like that gentleman, they would not be precluded from another claim.
JENNY BROCKIE: So it only covers mesothelioma?
JANE McDERMOTT: Only mesothelioma.
JENNY BROCKIE: They can only go back if they get mesothelioma. Butch Smale, you worked at Whyalla, you have pleural plaques on the lungs as I understand it. You haven't received an offer yet, is that right?
BUTCH SMALE, FORMER BHP EMPLOYEE: I've lodged no claim or nothing.
JENNY BROCKIE: What would you do if a letter arrived in the mail and said $20,000, would you take it?
BUTCH SMALE: I think it's like - money, you can't put money for health or life or anything but I think I'd be very upset. $20,000 is not very much. Like, you work for a company. It doesn't give you the right to kill you.
JENNY BROCKIE: Brian Slee, what about you?
BRIAN SLEE, FORMER BHP EMPLOYEE: I agree with Butch. The amount of people that are dying in Whyalla that nobody knows about from mesothelioma, and this is going to get bigger and bigger and bigger.
JENNY BROCKIE: Can you understand why people in Whyalla would be tempted to take $20,000 if it was offered to them?
BRIAN SLEE: It's a possibility that people are a little hesitant about saying anything or actually even coming forward or putting on a turn about what they were offered simply because they've got family still there, working there, and they probably don't want to put family or friends in jeopardy. JENNY BROCKIE: So, money in the hand.
BRIAN SLEE: Exactly.
JENNY BROCKIE: Jane McDermott, why shouldn't the workers take the money in the hand rather than line the pockets of lawyers like you, for example.
JANE McDERMOTT: Oh, Jenny. Because as Butch just said, money is just - it doesn't give you your health, and it doesn't appraise - BHP isn't actually advising people "This is the massive health risk that we have exposed to you to." It's not providing the medical treatment in Whyalla that people who have pleural plaques or anything would then be able to access.
JENNY BROCKIE: So you're saying it's actually about their behaviour as a corporate citizen?
JANE McDERMOTT: It is.
JENNY BROCKIE: You're not only unhappy about the amount of money but you're unhappy about the broader behaviour that it represents?
JANE McDERMOTT: Absolutely.
JENNY BROCKIE: Is BHP acting outside the law in any way at all?
JANE McDERMOTT: These agreements are lawful, it's just - are they ethical, or are they the acts of a large, multinational company?