'Hug of death' asbestos case could open up compensation for many cancer sufferers
Simple hugs between a father and daughter could have contributed to the cancer that killed Deanna Trevarthen.
Trevarthen, who died in 2016, aged 45, was one of the youngest in New Zealand to die from mesothelioma, an aggressive form of cancer directly linked to asbestos exposure.
Her family lawyer says she was exposed to toxic asbestos dust on her father Phillip's electrician uniform when, as a young girl, she would hug him on his return home from work.
Now the family are taking ACC to court in the hope that other victims of secondhand asbestos exposure will have an avenue to compensation.
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The case has the potential to set a legal precedent, possibly allowing hundreds of other mesothelioma sufferers to lodge a claim.
ACC handles compensation claims for the effects of asbestos exposure in New Zealand, but claimants must have been exposed at work, meaning their families are not covered.
The legal firm taking the case, John Miller Law, aims to pursue the claim as an accident relating to the inhalation of a foreign object, rather than the established route of a work-related accident.
Trevarthen's sister-in-law Angela Calver said Phillip Trevarthen was an electrician working on new houses in the 1970s.
"She can remember doing cleanups for him and sitting on piles of particle board and breaking them up and playing with them while her dad was at work," Calver said.
"But because she cannot remember getting pocket money, or getting paid for doing that work on her dad's work site, she was refused cover by ACC under workplace compensation."
Principal lawyer John Miller said the legislation was open to interpretation. But given the intention of the act to facilitate rehabilitation after an accident, there was a strong argument for compensation.
Beatrix Woodhouse, the lawyer representing the family, said Deanna would hug her father when he returned home each day.
"Unbeknown to her, she was being exposed to asbestos fibres on his work clothes, which has likely led to her diagnosis of mesothelioma years later."
Trevarthen began to feel ill during a holiday in Fiji in July 2015. In October, she checked herself into hospital with trouble breathing, Calver said.
"On her birthday they told her – when she was by herself, unfortunately – that she had mesothelioma."
When chemotherapy failed, the family raised thousands of dollars for treatment with Keytruda, a medicine not covered by public funding. That failed as well, and she died in December the following year.
"We did have conversations about it being the easiest thing to do, to give it all up, when she died, but this case could make it fairer for everybody," Calver said.
The case is scheduled to begin in Wellington District Court in September. Woodhouse said ACC's appointment of a Queen's Counsel to handle it was unusual at a district court level, and was probably an attempt to "stamp out" the case from the outset.
"With mesothelioma claims it's quite an insidious disease, so it takes about 20 to 50 years before the signs of the disease become apparent, and then once they are diagnosed they only have a year or so to live."
The latency period made it hard to sue the manufacturers and employers that allowed the asbestos exposure in the first place, she said.
An ACC spokesman said it could not comment on an issue that was before the courts.
According to ACC figures, there were 1928 asbestos-related claims made between July 2005 and June 2015, of which 285 were declined.
The vast majority of claims, 1798, came from men aged 50 and over, with only 57 from women.
Last week, Stuff revealed Elva Halliday, 84, is taking building products supplier James Hardie to court over asbestos exposure she suffered from washing her husband's work uniform, which she says contributed to her mesothelioma.