Segelov Taylor client, the late Charles Abegglen was diagnosed with mesothelioma in early 2018. Prior to the development of symptoms associated with mesothelioma, Mr Abegglen had been fit and healthy. Aged 80, he still walked several kilometres a day and was the primary carer of his de facto, Margaret Piatti, who suffers from dementia. When Mr Abegglen’s case was heard in the Dust Diseases Tribunal the critical issue was the availability, and extent, of damages for the loss of his ability to care for Ms Piatti.
Mr Abegglen arrived in Australia in 1965 from Switzerland. Between 1965 and 2007, he worked in various roles in the building industry. During this time, Mr Abegglen was regularly required to handle asbestos cement fibro sheets and other asbestos cement building materials manufactured and supplied primarily by James Hardie. Mr Abegglen recalled that these products gave off large amounts of dust when they were worked with and as a consequence he was exposed to asbestos dust and fibres.
The majority of this exposure occurred while was Mr Abegglen was contracted to two companies: Granosite Pty Ltd where between 1965 and 1968 Mr Abegglen was required to sand and repair fibro sheets before applying an exterior paint product; and Surface Shield Pty Ltd, where Mr Abegglen installed and repaired fibro sheeting and worked with other asbestos products between 1968 and 1987.
Claim in the Dust Diseases Tribunal
Mr Abegglen’s stepson, Ronald Piatti, approached Segelov Taylor Lawyers in early 2018 following Mr Abegglen’s diagnosis with mesothelioma. Mr Abegglen had been experiencing symptoms since mid-2016.
Segelov Taylor commenced proceedings on behalf of Mr Abegglen in the Dust Diseases Tribunal of NSW against Granosite Pty Ltd, Mr Abegglen’s former employer, and Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd).
Although Granosite had ceased trading and the company was deregistered some years before, Segelov Taylor were able to identify the workers compensation insurer at the date of Mr Abegglen’s last employment with the company and applied to the Supreme Court of New South Wales to restore Granosite to the register of companies. This enabled the company to be sued and access to the workers compensation policy.
Both defendants accepted liability for Mr Abegglen’s illness. The disputed issue at trial was the availability and extent of damages for the ongoing care of the late Mr Abegglen’s de facto, Margaret Piatti.
Prior to symptoms from his mesothelioma Mr Abegglen provided care to Ms Piatti who suffers from dementia.
Under legislation in NSW, it is possible to recover damages which compensate a person for the loss of capacity to provide domestic services to a dependant who requires the services at least 6 hours a week for at least 6 months as a result of age, physical or mental incapacity (section 15B Civil Liability Act 2002 (NSW)). However, the defendants submitted that because Mr Abegglen was deceased at the time of the hearing, and the claim in the Dust Diseases Tribunal was now being brought by his estate, there was no entitlement to recover damages for the loss of capacity to provide domestic services to a dependant.
The court rejected this argument. It held that if Mr Abegglen had not contracted mesothelioma as a result of the defendants’ negligence, then he would have continued to provide ongoing care to Ms Piatti. Damages were awarded to compensate for Mr Abegglen’s loss based on the care he would have provided Ms Piatti’s in the past and future but for his mesothelioma.
However, the trial judge calculated these damages by reference to the number of hours of care provided by Mr Abegglen at the time the liability arose, that is the time he became sick in 2016. At this time, it was estimated he provided care for around 16 hours a day. However, by the time of his death in 2018, Ms Piatti required 24-hour care. Despite submissions from Segelov Taylor that damages should be calculated by reference to the level of the care that Mr Abegglen would be providing had he not become ill, the judge felt constrained by a number of previous cases to confine the assessment of damages to the 16 hour/day figure.
The client plans to appeal this determination to the NSW Court of Appeal and will seek damages for Ms Piatti’s care which properly reflect the family’s needs.