“General damages amount increased by DDT for mesothelioma caused by exposure to asbestos.” – Phillip Raymond Kirkpatrick v Babcock Australia Pty Ltd [2009] NSWDDT 4

Author: Andrew Spearritt

Judgement Date: 1st April, 2009

Citation: Phillip Raymond Kirkpatrick v Babcock Australia Pty Ltd [2009] NSWDDT 4

Jurisdiction: Dust Diseases Tribunal of New South Wales

In Brief

  • The Dust Diseases Tribunal of New South Wales was asked to assess damages in respect to a claim arising out of the condition of mesothelioma.
  • His Honour Judge Curtis awarded $280,000 for general damages which is a benchmark for damages awarded in the Dust Diseases Tribunal.  However, the case may be distinguishable on its facts given the Plaintiff’s age and the fact that he underwent three surgical procedures, and underwent chemotherapy and radiotherapy in addition to further radical surgery.

Circumstances

  • Phillip Kirkpatrick was 61 years of age and commenced proceedings in the Dust Diseases Tribunal of New South Wales seeking damages, interest and costs to compensate him for the condition of mesothelioma, arising out of his exposure to asbestos.
  • The Plaintiff was employed by Babcock Australia Pty Ltd as an engineer and the matter proceeded on an assessment of damages basis only.
  • In November 2006, the Plaintiff experienced symptoms of right-sided chest pain and he ultimately underwent a pleural biopsy, pleural aspiration and talc pleurodesis in December of that year.  However, there were three unsuccessful attempts to aspirate fluid from the Plaintiff’s right pleural cavity resulting in extreme pain on each attempt.
  • After continued symptoms of pain, the Plaintiff was admitted to the Strathfield Private Hospital on 14 August 2007 where he underwent a right sided thoracotomy, partial pleurectomy, pulmonary decortication and a further talc pleurodesis at the hands of Professor Brian McCaughan.  The Plaintiff was then diagnosed as suffering from mesothelioma.
  • Chemotherapy treatment commenced on 9 October 2007 to which the Plaintiff responded poorly, resulting in fevers, constipation, vomiting and abdominal pain.  It was necessary for the Plaintiff to undergo a blood transfusion as a result of the amount of pain medication he was taking.
  • The Plaintiff commenced 13 days of radiotherapy treatment on 5 January 2009 with numerous Hospital admissions to address the Plaintiff’s pain.  A nerve block was inserted in the Plaintiff’s cervical spine in an attempt to relieve the pain.
  • During his evidence, the Plaintiff described being “reduced to tears” and “writhing in pain on the floor” as a result of the pain and the medical experts who gave evidence confirmed that the Plaintiff’s prolonged life expectancy had come at a significant price.

Judgment

  • The Plaintiff was awarded $280,000 in general damages, plus amounts for interest, loss of expectation of life, future loss of earnings, care and out of pocket expenses.
  • The judgment has not identified the Plaintiff’s pre-injury earnings and the parties were directed to prepare consent orders reflecting the finding that the Plaintiff would have continued to work (at a reduced capacity) until the age of 70 years.
  • It is anticipated that the total damages are likely to exceed $600,000 plus costs.

Implications

  • The significant aspect of this judgment is the amount allowed for general damages.  Prior to this decision, the high range allowed for general damages in a mesothelioma matter was approximately $250,000 following the decision of Curtis J in McNamara v Amaca Pty Limited and Gifford v Cockatoo Dockyards
  • Whilst this decision may be distinguishable on its facts given the number of surgical procedure undergone by the Plaintiff and the significant levels of subsequent pain, it is clear that the Tribunal is raising the bar in terms of general damages.