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Significant precedent set for asbestos victims by NSW Court of Appeal

On Friday 28 August 2020, the NSW Court of Appeal handed down a significant, precedent setting ruling in case brought by Segelov Taylor Lawyers in the matter of Piatti v ACN 000 246 542 Pty Ltd.

The late Mr Abegglen suffered from mesothelioma and died on 22 April 2018. Shortly before his death, Mr Abegglen brought proceedings in the Dust Diseases Tribunal of NSW suing his former employer Granosite Pty Ltd (now ACN 000 246 542 Pty Ltd) and Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd), the manufacturer of the asbestos cement sheets that he worked with. The proceedings were continued by the Late Mr Abegglen’s estate.

Prior to symptoms from his mesothelioma, Mr Abegglen provided care to his wife, Mrs Piatti, who suffers from dementia. As part of his claim in the Dust Diseases Tribunal of NSW, Mr Abegglen claimed damages for his loss of ability to provide services to his wife in the past and future because of his diagnosis of mesothelioma.

At the trial, Judge Russell of the Dust Diseases Tribunal found in favour of Mr Abegglen and awarded damages in the amount of $1,058,000.00. Judge Russell found that at the time Mr Abegglen first experienced symptoms in 2016 he was providing 16 hours a day care to his wife. Judge Russell also found that in January 2018, Mrs Piatti’s condition deteriorated, and she required 24 hour care and supervision from that time and for the rest of his life.

Judge Russell only awarded damages on the basis of 16 hours of care a day (being the care provided at the time symptoms commenced) as he held that previous decisions did not allow him to increase the level of care despite finding that Mrs Piatti required increasing care and that Mr Abegglen but for his condition of mesothelioma would have provided that care.

The NSW Court of Appeal found that there was no such constraint and that provided Mr Abegglen met the threshold requirements (providing 6 hours of care a week for a minimum of 6 months to a dependant by reason of their as a result of age, physical or mental incapacity,  that there was a need for the services to be provided for those hours a week and that consecutive period of time and that need was reasonable in all the circumstances) then there were no limitations on the care that could be awarded. The Court of Appeal increased the damages awarded to the estate of the late Mr Abegglen by the sum of $305,860.00 to provide for the full time care that the late Mr Abegglen would have provided his wife but for his condition of mesothelioma.

Amaca Pty Ltd (formerly James Hardie) filed a cross appeal arguing that damages for the late Mr Abegglen’s loss of capacity to provide assistance to his wife should not have been awarded for the period following the late Mr Abegglen’s death. The Court of Appeal did not accept this argument noting that there was no legislation to the effect that such damages did not survive the death of the claimant.

The decision is an important decision for all asbestos claimants. It is not unusual for a claimant to be the carer, usually for their spouse or in some cases their children. In many cases the claimant’s spouse is suffering from a progressive illness such as dementia and the claimant, but for their condition of mesothelioma, would have continued to look after their spouse at increasing levels as their spouse’s condition deteriorated.

This decision allows the claimant and their dependants to be fully compensated for the claimant’s inability to provide that care in the past and future.

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