WESTERN AUSTRALIA RAISES THE ANTE IN DUST DAMAGES
September 2, 2020
Parkin v Amaca Pty Limited – Supreme Court of Western Australia
27 August 2020
Thirteen years elapsed between judgments in the Supreme Court of Western Australia in a claim for damages for mesothelioma. In 2007, Mr Lowe, a man aged in his 30s, was awarded $250,000 in general damages. That has formed somewhat of a ‘benchmark’ with regard to assessment of potential liabilities in Western Australia, albeit, significantly lower than verdicts in comparable cases in other states and territories.
The judgment in Parkin has altered the Western Australian landscape insofar as general damages are concerned and also provides an interesting insight as to how the Supreme Court of Western Australia is likely to approach other heads of damage, particularly damages for out-of-pocket expenses, gratuitous provision of care and assistance, and vicissitudes deductions from future losses.
Defendants should expect Western Australian plaintiffs to be significantly more ‘bullish’ in claims for damages into the future.
Facts of Parkin
Ms Parkin was a 63 year old woman who developed mesothelioma following the inhalation of asbestos dust and fibre due to the negligence of Amaca.
She was a long term employee of Perth Zoo as a customer service officer having worked in that job for about 20 years before the onset of the mesothelioma disease. It was uncontroversial that mesothelioma would cut short her employment. Although she did not have a financial need to work, she testified that she enjoyed the job and intended to continue in that employment to about 70 years of age, being three years after the ‘usual’ retirement age.
She resided with her sister and had done so all their lives. Neither had married nor had children and the sister worked alongside Ms Parkin as a customer service officer at Perth Zoo. The Trial Judge held that the sisters had a particularly close bond.
Ms Parkin developed symptoms of mesothelioma in 2018 and, before that, was a fit and healthy woman enjoying exercise and social activities.
The Trial Judge assessed the devastating impact of the development of mesothelioma on Ms Parkin.
In addition to the tumour present in Ms Parkin’s chest, she also had a malignant uterine mass. Expert evidence, although to a degree inconsistent, generally accepted that the uterine mass was related to the mesothelioma. It accordingly followed that the plaintiff could have expected to live a full life but for onset of mesothelioma [there was no obvious intervening non-asbestos related comorbidity] and thus all of the pain, suffering and loss of enjoyment of life could be attributed to Amaca’s negligence in exposing her to asbestos dust and fibre, and causing the development of the disease.
The trial judge awarded $360,000 in general damages plus $15,000 in damages for loss of expectation of life.
That is, a figure which is generally ‘in line’ with similar awards of damages made by Judges in South Australia, the Northern Territory and New South Wales in similar types of cases. If anything, a marginally higher award of damages may have been awarded had the case been litigated to completion before the Dust Diseases Tribunal due to
Ms Parkin’s relative youth [63 years of age] by comparison to some older claimants with similar disease processes who have been award $375,000 by Judges of the Tribunal.
An issue arose between the parties as to whether immunotherapy treatment, which
Ms Parkin was undergoing with apparently good results [the tumour had progressed at a slower speed than that which medical practitioners had expected without that treatment and thus her quality and length of life had, on balance, been improved by the treatment].
An argument developed based upon contradictory expert evidence as to the extent to which immunotherapy could be considered to be experimental medication and consequently of dubious therapeutic benefit from an objective medical perspective. If that finding had been made, it would follow that the plaintiff would not have recovered damages for the cost of immunotherapy treatment.
The Trial Judge preferred the plaintiff’s expert evidence that immunotherapy was legitimate treatment with an established therapeutic benefit which was supported by results of clinical trials. He awarded damages for the cost of the immunotherapy treatment.
Loss of economic capacity
It is legally uncontroversial that a claimant is entitled to recover damages for future loss of economic capacity occasioned by the inability to work as a consequence of a disease such as mesothelioma. Further, the damages are appropriately reduced by the extent to which personal maintenance would be expended by the claimant in the period after the anticipated date of death and by vicissitudes of life.
Issues on this head of loss arose, first from the period of expected future employment [specifically, whether it could be reasonably said that Ms Parkin would have, on the balance of probabilities, worked beyond the usual retirement age of 67 to the age of 70], secondly as to the extent of the reduction for the ‘lost years’ personal maintenance deduction and finally on the appropriate vicissitudes deduction.
The trial judge accepted Ms Parkin’s evidence of her intention to continue to work to the age of 70 noting her longstanding connection to Perth Zoo, the fact that she worked with her sister in that employment and substantially enjoyed that part of their relationship and that she had continued to work in that capacity for many years after which she was not required to do so from a financial capacity perspective.
Thereafter, as regards to the lost years deduction, Ms Parkin endeavoured to rely upon a factual analysis of her contribution to the shared household with her sister [which proved to be somewhat incomplete], and Amaca endeavoured to rely upon a statistical analysis of the likely contribution being evidence given by a forensic accountant based upon commonwealth statistical records.
The Trial Judge preferred the factual analysis to the statistical analysis and, after adjusting to take into account some costs which had been omitted in Ms Parkin’s initial analysis, reduced the future loss by a lesser figure than the statistical analysis would dictate.
Pausing there, it is important when preparing this type of case to give consideration to whether the personal circumstances of the claimant are such as to render it more or less likely that the cost of personal maintenance is at, or higher than, the statistical expectation. A claimant with a lavish lifestyle would be disadvantaged in this respect whereas a frugal claimant would be advantaged.
The most interesting aspect of this analysis was the approach taken by the Judge on vicissitudes.
At the time of trial, Ms Parkin had an expectation of a further seven years of employment. In similar types of cases heard before the Dust Diseases Tribunal, claimants have had a greater than normal reduction for vicissitudes in circumstances where they intend to work beyond the usual retiring age. That situation arises because of evidence such as that given by Amaca’s forensic accountant in Parkin, being that the actual retirement of people is statistically earlier than the age at which they intend to retire.
As such, Judges of the Tribunal have made a 15% vicissitudes deduction up to the usual retirement and intend to increase that to 20% beyond the usual retirement age.
In Parkin, the Trial Judge did not accept that there was a significant risk in that regard warranting an increase in vicissitudes and indeed reduced the future loss by only 5% for vicissitudes.
This head amounts to what the writer expects to be the most substantial impact of the case insofar as future claims for damages are concerned.
Ms Parkin had received substantial gratuitous care from her sister. It was anticipated that situation would continue albeit that Ms Parkin would be, from time to time, hospitalised at which time her sister would spend substantial portions of the day at the hospital providing emotional support and, it was expected, some care.
As regards to the periods of hospitalisation, some authorities have determined that the visiting and provision of emotional support to a person in hospital is not appropriately characterised as compensable gratuitous care. Rather it could be reasonably expected that a competent hospital would provide the necessary care such that the time spent by a visitor, regardless of the capacity and the task performed, would not sound in damages.
Other cases have been less ‘strict’ such that some aspects of the care would be payable.
In Parkin, the trial judge found that the sister would provide four hours of compensable care per day during periods of hospitalisation.
Otherwise, based upon competing reports of expert occupational therapists, a series of stages of increasing need due to the anticipated developing levels of incapacity were identified.
Assessments were then made of the amount and type of care required, and the cost of that care was assessed by reference to commercial provision of that care. A significant issue arose as to the appropriate ‘hourly rate’. The plaintiff’s expert identified a commercial carer which had provided some assistance to Ms Parkin in the past and assessed the loss in accordance with those rates. Amaca’s expert identified that the cost of care could be less by reference to the National Disability Insurance Scheme prescribed rates.
It appears from the judgment that Amaca’s expert evidence did not go far enough to specifically identify the availability of care providers in Ms Parkin’s region who would provide the care required at the NDIS rates and, as such, the Trial Judge found the appropriate hourly rates to be that assessed by the care company specified by the plaintiff’s expert.
That substantially increased the damages from care by comparison to the NDIS rates [probably by a factor of about 35 – 40%].
The overall damages for past and future care were awarded at about $340,000 inclusive of interest, being more than $250,000 above the ‘common allowance’, in Western Australian settlements over recent years.
Naturally, the value of the care component of the claim is specific to that claim.
A claimant with a short life expectancy will not recover substantially less in damages for this head of loss by comparison to a claimant with a long life expectancy.
It is not yet clear whether Amaca will pursue an appeal.
Having said that, it is plain that expectation is now that damages in claims in
Western Australia will be assessed in a reasonably consistent fashion to claims in other states and territories of Australia, with the exception of Victoria, where the impact of a jury tends to result in a significantly higher expectation in general damages.
Further information / assistance regarding the issues raised in this article is available from the author Stephen Taylor-Jones – Partner or your usual contact at Moray & Agnew.
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