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Appeal against largest award for general damages in mesothelioma case fails

On 29 November 2021, the Supreme Court of Victoria Court of Appeal dismissed an appeal against the award of general damages Reid v. Seltsam. Segelov Taylor Lawyers acted for Mrs Reid, who suffers from mesothelioma. In the trial judgment, Justice Forbes awarded Mrs Reid $580,000 for general damages for pain and suffering and loss of expectation of life. This is the largest amount ever awarded for such damages by a judge in Australia. Read about the case here.

Seltsam Pty Ltd sought to appeal Forbes J’s trial decision on five grounds. In their joint judgment, Beach JA, Kaye JA and Niall JA rejected all five proposed grounds and refused the leave to appeal.

The first proposed ground was that the amount awarded as general damages failed to consider relevant considerations and was ultimately “manifestly excessive”. The appeal judges agreed with the trial judge observations that the disease had “[…] not simply diminished her quality of life, it is destroying it in every aspect.” The appeal judges also rejected the defendant’s submission that the plaintiff’s pre-existing anxiety condition required a reduction in damages awarded by the judge. The appeal judges dismissed the defendant’s submission and agreed that the plaintiff’s anxiety resulted in the effects of her mesothelioma being greater on the plaintiff. The appeal judges held that the amount awarded for general damages was not excessive but instead was fair and reasonable in the circumstances.

The second proposed ground for appeal was that general damages for pain and suffering were also awarded under s 28ID of the Wrongs Act. The appeal judges rejected the second ground. The joint decision held that Forbes J did not commit ‘such a basic error as doubly compensating the plaintiff in respect of the same loss.’

The third proposed ground for appeal was that the trial judge erred by giving undue weight to previous decisions. The appeal judges held that the trial judge’s determination of damages was based on the plaintiff’s individual circumstances. The sum of the damages was proportionate to the plaintiff’s situation, thus rejecting the proposed third ground.

Ground four was that the trial judge erred in failing to give adequate reasoning for the award of general damages. The appeal judges found that the trial judge’s reasons were adequately exposed, rejecting ground four.

The fifth ground was that the total amount was a “wholly erroneous estimate of the damage”; the appeal judges had already rejected this notion in grounds one, two and three.

Beach JA, Kaye JA and Niall JA rejected the leave for appeal. They ordered that Seltsam pay Mrs Reid’s costs on an indemnity basis. The affirming of the decision maintains the position of the Courts’ ongoing acceptance of the devastating impact of mesothelioma.

The judgment of Justice Forbes and the subsequent dismissal of the appeal is of enormous significance to settlements in mesothelioma claims in Victoria and around Australia. They represent a significant realignment that future plaintiff’s compensation will be greater than it would otherwise have been.

Segelov Taylor thanks Mrs Reid for her instructions in this matter and acknowledges her efforts and those of her family in achieving this outcome.

Read the full judgement here.

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