In the first West Australian mesothelioma case to run since 2011, Segelov Taylor client, Ms Parkin, has been awarded more than $1 million in damages. Significantly, this landmark win recalibrates the general damages amount available to claimants and sets a precedent to allow victims to claim the cost of immunotherapy treatment.
Ms Parkin was diagnosed with mesothelioma in late 2019 and had been given only six months to live. Prior to developing symptoms of mesothelioma, Ms Parkin, aged 62, lived a full life working part-time, travelling overseas, and being an active member of the local community. She now spends most of her time at home resting, due to her constant fatigue, stomach pains and breathlessness, under the full-time care of her sister.
The key issues before the Supreme Court of Western Australia were the amount of general damages to be awarded, and whether the combination of chemotherapy and immunotherapy treatments were reasonably incurred such that the defendant was liable to compensate Ms Parkin for the cost of past and future treatments.
Ms Parkin arrived in Australia in 1966 and moved to Perth a year later with her family. Sometime between 1970 to 1980, Ms Parkin was exposed to asbestos cement fibro sheets while she and her father were constructing an extension to their family home. These sheets were manufactured by James Hardie & Coy Pty Limited.
Ms Parkin underwent a combination of chemotherapy and immunotherapy to help alleviate her pain and suffering. The medication she was prescribed is not currently listed on the Pharmaceutical Benefits Scheme for mesothelioma and costs approximately $6,000.00 per treatment. A similar drug has been trialled with first line chemotherapy in mesothelioma as part of the DREAM study, with positive Phase 11 results.
The course of treatment was paid by Ms Parkin and she sought to be reimbursed to the sum of $60,000.00.
Claim in the Supreme Court of Western Australia
Tanya Segelov, Principal of Segelov Taylor Lawyers, brought proceedings on behalf of Ms Parkin against Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) in December 2019.
Whilst the defendant admitted liability for Ms Parkin’s illness, there was dispute over the amount of damages to be awarded.
Following an expedited hearing, Justice Le Miere awarded Ms Parkin $360,000.00 for pain and suffering and loss of enjoyment of life (general damages). His Honour noted in his judgement that regard must be had to the unique circumstances of each plaintiff and that for Ms Parkin, mesothelioma has had an enormous impact on her quality of life.
The amount Ms Parkin received in general damages is the highest amount to be awarded in Western Australia, bringing it in line with awards in New South Wales and the rest of Australia. Previously, the largest general damages amount by the same court had been $250,000.00 in Lowes v Amaca Pty Ltd.
Justice Le Miere also found in favour of Ms Parkin requiring the defendant to compensate for the combination chemotherapy and immunotherapy. Miere J found that the results of the DREAM Trial involving the checkpoint inhibitor and Ms Parkin’s positive response to the treatment justified the use of the immunotherapy drug.
This is a ground-breaking decision for all current and future mesothelioma claimants, particularly those who have difficulties affording such a course of treatment.
In light of this decision, Western Australian asbestos victims will be able to seek compensation from the company responsible for their exposure to asbestos to pay for costly immunotherapy treatments.
Potential claimants would also likely receive increased compensation following this case. Ms Parkin’s award of $360,000.00 for general damages has provided a much-needed recalibration of the way in which such an award is calculated in Western Australia. On this point, Justice Le Miere noted that Lowes v Amaca Pty Ltd, another significant case from the same court, had been decided almost a decade ago.
For Ms Parkin, she hopes her matter will help future mesothelioma sufferers receive a better outcome for themselves and their loved ones, and to ensure that companies like James Hardie pay compensation to asbestos victims at a standard that is more consistent across jurisdictions.
  WASC 287.
This information is current as of 4 September 2020 and is intended as general information only. It does not purport to be comprehensive advice or legal advice. Readers must seek professional advice before acting in relation to these matters