Western Australia Supreme Court – Increase in Mesothelioma Damages Award

The recent judgment of the WA Supreme Court (WASC) in the matter of Parkin v Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd) [2020] WASC 306 (Parkin) saw a significant increase in the amount previously awarded to mesothelioma sufferers in respect of general damages.  Significant sums were also awarded in relation to treatment costs and the provision of gratuitous services.

 

Parkin is the first mesothelioma case to go to trial in Western Australia since 2011. The matter went to trial on the issue of quantum only, liability having been admitted by the defendant. The court awarded the plaintiff a total of $1,041,480 damages.

The plaintiff in Parkin was a 63 year old former clerk, who contracted pleural mesothelioma as a result of her exposure to asbestos fibres, which emanated from asbestos cement building products manufactured by the defendant.

The exposure to asbestos fibres occurred whilst the plaintiff was a teenager and she assisted her father with renovation work, sanding and painting the family home.

The total awarded included awards for the following head of damages;

General Damages – $360,000

Both parties referred the court to awards for damages for non-pecuniary loss (general damages) in respect of pain, suffering and loss of enjoyment of life, made in earlier decisions.  Le Miere J held that the court may have regard to such decisions.

The plaintiff referred to a number of cases concerning awards of general damages in the Dust Diseases Tribunal of New South Wales (DDT), which generally range from $350,000 to $400,000 for such damages.  The plaintiff also referred to non-mesothelioma cases involving plaintiffs who had suffered sexual assault, which had seen Western Australian courts award general damages of $400,000.

The defendant referred to a number of cases, including Lowes v Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd) [2011] WASC 2087 (Lowes), in which general damages of $250,000 were awarded.  Le Miere J noted however that Lowes was decided almost ten years ago and awards of damages had increased significantly during that period.

The court also referred to the very recent DDT decision in the matter of Kennedy v Cimic Group Limited & CPB Contractors Pty Ltd [2020] NSWDDT 7 (31 July 2020) (Kennedy).  In Kennedy, the plaintiff was 82 years of age at the time of trial and suffered from mesothelioma.  The trial judge, Scotting J, was required to assess general damages, applying the substantive law of Western Australia.  Scotting J had regard to the previous cases decided by the Supreme Court of WA, including Lowes and Amaca Pty Ltd v Hannell [2007] WASCA 158, but concluded that the cases “lacked contemporaneity”. In Kennedy, an award of $350,000 was made for general damages.

Le Miere J stated that in determining the award for general damages, the court must have regard to the particular circumstances of the plaintiff and noted that the evidence disclosed that the impact on the plaintiff of mesothelioma had been enormous.  Le Miere J awarded the sum of $360,000 in respect of general damages.

Past and Future Treatment – $126,451

Amounts awarded in respect of past and future treatment notably included an amount of almost $60,000 in respect of past and future treatment with the immunotherapy drug Pembrolizumab, which is marketed under the brand name of Keytruda.  The court noted that Keytruda is not a chemotherapy or radiotherapy drug, but rather a checkpoint inhibitor, a type of immunotherapy.  The drug blocks proteins that stop the immune system from attacking cancer cells.

The defendant submitted that the plaintiff’s claim to be compensated for the cost of Keytruda treatment was not supported by the evidence.  The defendant submitted that the plaintiff must establish that treatment was reasonable.  The defendant relied upon medical evidence that treatment with Keytruda for mesothelioma generally, with or without chemotherapy, is not adequately supported by current medical knowledge.  On that basis, it was argued that the claim for such treatment was not reasonable.

Le Miere J considered the available medical evidence, including the results of clinical trials, which showed potential benefit to mesothelioma suffers from such treatment.

It was also noted that the plaintiff appears to have done well from the treatment to date.

Le Miere J found that the Keytruda treatment was reasonably required by the plaintiff as a consequence of her mesothelioma, caused by the defendant’s negligence.  Le Miere J held that the treatment is appropriate in the sense that it serves a purpose. It was noted that medical research had shown that treatment including Keytruda and chemotherapy had a greater capacity to reduce the progression of mesothelioma than treatment by conventional chemotherapy alone.  It was also noted that the cost is substantially greater than the cost of treatment by chemotherapy alone, but that the additional cost of the treatment is not disproportionate to benefits that accrued, which included reducing the progression of mesothelioma and improving well-being.

Past and future care and assistance (Griffiths v Kerkemeyer) – $335,933.45

Damages were awarded for past and future care and assistance in the amounts of $139,402.74 and $196,530.71 respectively.

The plaintiff resided with her sister in their own home.  The court heard that the plaintiff and her sister were very close.  The court heard that since the onset of symptoms, the plaintiff had relied on her sister for assistance with domestic tasks.

It was noted by an occupational therapist instructed by the defendant that the plaintiff and her sister had a very special bond, having done most things together for years prior to the plaintiff’s diagnosis.  The plaintiff and her sister were described as being “somewhat enmeshed in each other’s lives” and that as a result, the plaintiff’s sister had provided more care and assistance than the occupational therapist had seen in other cases of a similar nature.

The court made limited allowances for services provided by the plaintiff’s sister to the plaintiff, whilst the plaintiff was in hospital.

Following the plaintiff’s discharge from hospital in the later stages of her illness, an occupational therapist instructed by the plaintiff assessed the plaintiff’s need for care and assistance from her sister as being significant, making allowances for constant supervision provided by the plaintiff’s sister, which it was stated provided emotional support for the plaintiff.

The defendant accepted that emotional or psychological support may be of comfort to the plaintiff, but submitted that there is no appropriate expert evidence that the plaintiff had a need for such supervision and care.

The court considered cases involving consideration of gratuitous services provided to a plaintiff by a person with whom he/she is in a marital or other personal and permanent relationship, including provision of protective attention.  Le Miere J held that the supervision or protective attention provided to the plaintiff by her sister was a compensable gratuitous service and made allowance for provision of such supervision or protective attention at various stages of the plaintiff’s illness.

Summary

The amount awarded by the court in respect of general damages is the highest such award made in Western Australia in a mesothelioma case and appears to be commensurate with awards made in other Australian jurisdictions.  It is to be expected that this decision will place upwards pressure on negotiated settlements in mesothelioma claims.

For some time, defendants have resisted being required to fund immunotherapy treatment, or treatment which is described as experimental only.  During negotiated settlements, defendants have typically refused to make allowance for treatments with immunotherapy drugs, such as Keytruda.  Following the decision of the WASC of Parkin, that position may now be untenable.

Claims for gratuitous services are to be assessed on the merits of each case.  In Parkin, the close nature of the relationship between the plaintiff and her sister gave rise to the supervision and protective attention provided by the plaintiff’s sister to the plaintiff being regarded as a compensable gratuitous service.  Of note, the court adopted the higher Silver Chain hourly rate for provision of services.  As a result, the application of the Silver Chain rate is now likely to be of the norm in negotiated settlements.