The Plaintiff was 79 years of age at time of judgment. He was diagnosed with malignant epithelioid mesothelioma, on 19 December 2022.
Prior to being diagnosed with mesothelioma, the Plaintiff lived a very active life and worked “on the tools” as a self-employed carpenter until December 2022. Upon retirement, the Plaintiff had planned to travel and continue his pastime of fishing. He was the president of the Canberra Fishing Club for fifteen (15) years.
The Plaintiff first experienced asbestos-related symptoms, including shortness of breath, in about September 2022. The Plaintiff underwent eleven (11) immunotherapy treatments of Ipilimumab and Nivolumab between January 2023 and August 2023. Expert evidence provided a prognosis of two (2) years, from 20 December 2023, however it was noted that the Plaintiff may pass prior to that date. Although the Plaintiff responded well to the immunotherapy, it was noted that there is no cure for mesothelioma and the Plaintiff will ultimately die as a result of his asbestos-related disease.
The only issue in dispute was quantum.
The Dust Diseases Tribunal considered the Plaintiff’s past and future suffering. This involved not only assessing the Plaintiff’s physical pain but also the emotional distress and grief associated with his impending premature death. In assessing general damages, the Tribunal found that it is more probable than not that the Plaintiff will suffer the symptoms of his condition of mesothelioma for approximately 3.5 years, noting that based on his prognosis, he will continue to suffer during that period, and that such suffering will increase day by day. Specific references were made to the Plaintiff’s ruminations regarding his retirement plans prior to being diagnosed with mesothelioma. The Tribunal awarded $500,000.00 for general damages.
In regard to care and assistance, the Plaintiff claimed the commercial cost of assistance with meal preparation, laundry and grocery shopping. Such a claim was brought in circumstances where the Plaintiff resided in a motel room in the Australian Capital Territory. Although the Defendant argued that some of the domestic tasks were already provided by the motel, the Tribunal highlighted that, “…tragically, it matters not where the Plaintiff lives nor the type of accommodation he is in when he goes through the final stages of his mesothelioma…he will need the care in any event”. After considering the Plaintiff’s level of functioning, capacity, and his potential needs given those circumstances, the Tribunal awarded damages for future care and assistance in accordance with the uncontested expert evidence.
The Tribunal ordered the Defendant to pay the Plaintiff’s costs of the proceedings on an indemnity basis.
Date Posted: February 23, 2024