Who will really benefit from the James Hardie compensation? The
victims or the lawyers? Accredited specialist personal injury attorney
Terence O’Riain disagress with Crikey Hardy correspondant.

Lawyers bleating about Hardie proposal

Subscriber email – 16 August

James Hardie shares hit a new three-and-a-half year low on the ASX on
Monday after Friday’s shock offer to beef up funding of the scheme to
fund asbestos victims. The 12c fall to $5.02, after the stock hit a low
of $4.95, would further suggest there is something right in the offer.

There are a few quibbles and the company will have to be held to the
outline and the moral sense of Friday’s announcement in any final
settlement. It can’t be allowed to finesse things away.

As you can see from this SMH report and this piece in The Australian,
the unions have a few concerns, which is understandable. But what is
hard to understand is the demand that the company not be allowed to
trade-off its compensation deal and any possible charges.

What do the unions want? The compensation deal or the prosecution of
the company, the board and the management? It will probably end up a
little bit messy here but I would have thought the unions’ first
interest should still be holding James Hardie to the spirit and
structure of Friday’s announcement.

The fact of whether there is any charges recommended or breaches
alleged is for Mr Jackson QC, the Special Commissioner, not the unions,
the NSW Government or any other party. Judging by his performance you
would have though that he has a good idea of the whole sorry case and
we wouldn’t have got to the present ‘breakthrough’ situation without
the significant prodding by him during the closing oral submissions
from the various parties which must have frightened Hardie and its
advisers.

But the SMH report gets to the crux of the present situation
when it suggests quite strongly that as a result of the settlement,
lawyers are quite likely to have their prospects of tapping a rich flow
of future work and fees very much reduced. And that can only be a very
good thing because it will mean there will be more money available for
the victims now and in the future and they will get their money in a
timely fashion and not significantly eaten up by lawyers’ fees,
contingent or otherwise.

This prospect of course has brought the legal beagles out of the
woodwork at the weekend and into The AFR. Stand by for more special
interest pleading and horror stories from the lawyers and their mates
in the unions, plus their antagonists in Hardie and its advisers. It
will all get very unseemly, and greed will show its ugly head in the
guise of public interest.

It will be up to Bob Carr and his Government not to bend to the
lawyers, many of whom are in well-connected industrial law focused
firms in Sydney and Melbourne. Mr Carr, who has claimed victory on
behalf of himself and his government following the Hardie announcement,
now has the power to limit the involvement of lawyers to proscribed
areas so as to maximise the speed and size of the payouts and to keep
pressure on Hardie not to delay settlements through legal games.

Equally Hardie and its advisers, Allens in particular, will have to be
encouraged or told that it will be as much in their interests as
everyone else for payments to be maximised to victims through all
possible means and not delayed because of legal argy bargy.

Who really bleats about legal costs

Accredited specialist personal injury attorney Terence O’Riain writes:

I reckon that I have never heard so much self-serving crap as Jimmy
Hardie’s and Crikey’s rants about how desirable it is to push out the
lawyers in compensating the victims of asbestos. I do not have
any files in this area, but so called lawyer free compensation schemes
always mean that those who are seeking the compensation are like lambs
who are supposed to trust wolves. Legal costs for companies in
James Hardy’s situation can write off all their costs as tax deductible.

It is happening in every statutory scheme ever invented. Look at
Comcare. Often the legal costs of claimants are not covered yet the
Commonwealth spends many millions on lawyers to oppose claims.
Ditto all the state workers comp schemes.

As for a victory for the diabolical Carr it should be exposed as his
shame. He was all ready to shaft the asbestos victims as he had
the workers and other accident victims. Events got ahead of him
though and it turned out that this enquiry was bona fide as well as
having plaintiff law firms providing $2m of legal aid for the
victims. Even if the NSW government had provided legal aid it
would be only be $120 per hour cf with $400 per hour for Hardies
lawyers (Allens billing will reflect this). That does not even
cover the overheads.

It is also dishonest to depict the plaintiffs lawyers as greed
driven. The size of the big plaintiff firms are small fractions
of Allens, Blakes and Sparkes etc. I do this work because I like
helping people and earning the equivalent of a high school principals
wage when you have to take all the risk and responsibility is pretty
daunting. I am sure it goes for most of my colleagues.
Don’t believe the hype

Peter Fray

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Peter Fray
Editor-in-chief of Crikey

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