Asbestosis and Fear of Cancer in the United States: What are the Lessons?

Abstract

Australian courts and tribunals are beset by cases relating to the compensability of mental harm in the contexts of Post-Traumatic Stress Disorder (PTSD) and/or Generalized Anxiety Disorder (GAD) which is alleged by applicants to be war- or service-caused for the purposes of Commonwealth military pensions. Such an applicant must satisfy, among other things, a requirement that the anxiety or other mental condition that he/she experiences is not idiosyncratic and personal but service-related and is a diagnosed mental illness described in the Statements of Principle (SoP) issued by the Repatriation Medical Authority. This article argues that the tradition of skepticism and circumspection taken toward service-caused mental harm claims in this jurisdiction has been confirmed in Todd v Repatriation Commission to apply to the situation in which an applicant wishes to argue entitlement to a pension because diagnosis with asbestosis has triggered a of cancer. In Todd , the Federal Court found that, because there was evidence that the applicant had been experiencing most, if not all of these symptoms for some time previously he could not satisfy the SoP requirement that there was a connection between his GAD and the conditions of his military service. The strict approach in Todd is compared in this article with the liberal genuine and serious fear of contracting cancer standard applied to the US railway workers/asbestosis sufferers in Norfolk & Western R. Co. v Ayers . In Australia, the CLA regimes of normal fortitude in tort and proof of increased mental harm resulting from asbestosis diagnosis in Todd have a significant role in stemming a high volume of of cancer (FOC) litigation in Australia. In this article it emerges that, the lack of prominence of such settings in the US has left federal employers wide open to employees bringing compensation actions for asbestosis-related mental harm.