Vbr Lawyers has successfully litigated two mesothelioma matters back-to-back in the Dust Diseases Tribunal of NSW to kick off the New Year.
The first matter, Bradley v Amaca Pty Ltd [2024] NSWDDT 1 was heard before Judge Strathdee on 5 and 6 February 2024 and verdict was handed down on 9 February 2024.
The second matter, Davis v AMACA Pty Ltd [2024] NSWDDT 2 was heard before Judge Russell on 7 and 8 February 2024 and verdict was handed down on 22 February 2024.
Bradley Verdict
Mr Bradley is a 79 year old man diagnosed with mesothelioma as a result of his work as a carpenter from using James Hardie building products in NSW and South Australia. The only issue in dispute at trial was the quantum of his damages.
The Plaintiff relied on evidence from Associate Professor Klebe (Pathologist), Dr Robert Edwards (respiratory specialist), Dr Michael Jones (radiologist), Dr Neha Aggarwal (oncologist) and Ms Amy Vincent (occupational therapist).
James Hardie relied on no expert evidence.
Some of the key points from the verdict include: –
- Judge Strathdee noted the Plaintiff will suffer symptoms caused by his mesothelioma for approximately 3.5 years. She awarded $500,000.00 for general damages.
- James Hardie submitted a 15% reduction for vicissitudes was appropriate when assessing the damages for future care and medical and other expenses. This was rejected by Judge Strathdee on the basis Dr Edwards’
opinion on Mr Bradley’s prognosis and health decline from his mesothelioma was unchallenged and hence Mr Bradley’s decline as a sufferer of mesothelioma is a surety and capable of being projected to a high degree of accuracy. Judge Strathdee also acknowledged the possibility of ‘positive vicissitudes’ where given the Plaintiff positive response to immunotherapy, Mr Bradley may live longer than predicted. Accordingly, she determined in would be inappropriate to apply a discount for vicissitudes. - At the time of his court hearing, Mr Bradley was living in a motel room but had been searching for a granny flat type accommodation to accommodate his symptoms. Mr Bradley gave evidence that he was adamant he would not go into a retirement village. Given the uncontested evidence of Dr Edwards and Ms Vincent, Judge Strathdee awarded the sum of $171,547.14 for future care and assistance which allowed provision for full time commercial care which will fulfill Mr Bradley’s wish to be cared for at his home.
The total verdict awarded to Mr Bradley was $832,402.12.
James Hardie was also ordered to pay the Plaintiff ‘s legal costs on an indemnity basis from 8 December 2023.
The Davis Verdict
Mr Davis is presently 82 years of age and was also diagnosed with mesothelioma as a result of working as a carpenter in Queensland and South Australia when using James Hardie building products.
James Hardie relied on evidence from Professor Richard Fox (oncologist) and Mr Stephen Woolley (occupational therapist).
The Plaintiff relied on evidence from Dr David Deller (respiratory specialist), Dr Keith Horwood (oncologist) and Mr Stepehen Hoey (occupational therapist).
James Hardie accepted that Mr Davis had sufficient exposure to asbestos in both Queensland and South Australia alone to cause his mesothelioma.
This resulted in Judge Russell delivering a split verdict for the different assessments of damages for the Queensland and South Australian tort.Some of the key points from the verdict include:-
- James Hardie submitted that it was appropriate in assessing damages, applying the law of South Australia, to consider the decision of the Full Court of the Supreme Court of South Australia in Amaca Pty Ltd v Werfel [2020] SASCFC 125 which considered an award of $400,000.00 in general damages “was manifestly excessive and out of step with the general level of damages awarded in this State”. The Full Court on appeal reduced such damages to $280,000.00. James Hardie submitted that an award of $340,000.00 for general damages would accord with the South Australian approach.
- In respect of the Queensland tort, James Hardie submitted there was no particular guidance provided by the courts in that State for mesothelioma verdicts, and thus a “New South Wales approach” could be taken to the assessment of general damages arising form the Queensland tort. Given this concession, Judge Russell noted the debate about whether general damages should be lower in this case because of a South Australian tort, is rather academic.
- Counsel for the Plaintiff submitted the decision of Werfel was distinguishable as Mr Werfel had mesothelioma of the tunica vaginalis whereas Mr Davis had pleural mesothelioma. The symptoms caused by both conditions are very different.
- Counsel for the Plaintiff also argued there is only one indivisible common law of Australia and having regard to both South Australian and Queensland exposure, an award of $485,000.00 was appropriate.
- Judge Russell emphasised in his verdict that the Full Court in Werfel made it plain they were expressing their “opinion” about the appropriate level of general damages for that particular claimant. He then approached the assessment of general damages in this case on the same basis and awarded $475,000.00.
- There was disagreement as between the two occupational therapists called over the level and cost of care that would be required due to Mr Davis’ mesothelioma. James Hardie relied on evidence from Mr Woolley who had never spoken to the Plaintiff and his wife, nor had he visited their home. The plaintiff relied on evidence from Mr Hoey who had visited the Davis home and spoke to Mr and Mrs Davis. Judge Russel rejected Mr Woolley’s opinion and preferred the opinion of Mr Hoey. He accepted Mr Hoey’s opinion about a home visit being “the cornerstone of occupational therapy”, so that a therapist can understand the dynamics of the home environment. Judge Russell also accepted the evidence of Mr Hoey that while the Calvary Care offers a 24-hour rate (something that Mr Wooley only knew from searching the website), a 24-hour rate is not suitable for someone with complex needs of a mesothelioma patient. Mr Hoey also
costed the commercial value of care that Mrs Davis would provide to her dying husband and which Mr Wooley failed to quantify. Judge Russell ultimately awarded $283,338.35 (on South Australian discount rates) and $274,788.25 (on Queensland discount rates) for future care.
The split verdicts awarded to Mr Davis was $897,020.64 under South Australian
law and $888,420.54 under Queensland law.
James Hardie was also ordered to pay the Plaintiff ‘s legal costs on an indemnity
basis from 7 December 2023.
