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Substantial award for Segelov Taylor client for loss of capacity

In a recent mesothelioma claim, Segelov Taylor client Mr Kennedy[1] was awarded compensation for his mesothelioma in the sum of $690,592.00.

Mr Kennedy’s case is significant as it involved a substantial award in respect of the care he will no longer be able to provide to his dependent granddaughter, and also because the NSW Dust Diseases Tribunal was required to apply both NSW and Western Australian law in determining damages.

Mr Kennedy was a surveyor who started working for Leighton Contractors in late 1967 in New South Wales. He was exposed to asbestos when he worked on the construction of a migrant hostel in Randwick during this period.  After a few years he was asked by Leightons to relocate to Perth where he worked for the company until 1980. In 1971 his employment was transferred to another company within the Leighton’s group.  Mr Kennedy was exposed to asbestos in Western Australia when he worked on the construction of the Reserve Bank building where steel beams were sprayed with asbestos.

As Mr Kennedy had exposure to asbestos both in NSW and WA, the court had to assess his damages twice as the law in relation to damages in Australia differs from State to State. Of importance in this case was the compensation Mr Kennedy sought for his loss of ability to provide care to his granddaughter, Penny. Penny is a ward of the State of WA and has lived with and been cared for by Mr Kennedy and his wife since she was two years of age. Penny was 16 years old at the time Mr Kennedy was diagnosed with mesothelioma. Penny suffers from a number of psychological issues and her mental health deteriorated significantly after Mr Kennedy’s diagnosis resulting in multiple hospitalisations and, for a period of time when the Kennedy’s could no longer care for her, placement in group homes where she suffered physical abuse.

Under NSW law (s 15B of the Civil Liability Act 2002 (NSW)) a person can be compensated for their loss of ability to provide services to a dependant if those services are provided because of age, physical or mental incapacity, the services are provided for at least six hours a week for a period of at least six consecutive months and the need for the services to be provided for those hours per week and that consecutive period of time is reasonable in all the circumstances.

WA law does not have a similar provision although a court can take into account in awarding general damages (damages for pain and suffering and loss of amenities of life) the effect on a plaintiff being unable to perform services for a dependant.

The issue as to the award for loss of capacity to provide services for Penny was hotly contested. Mr Kennedy argued that Penny’s condition deteriorated at the time he first became ill, Mr Kennedy being very close to Penny and her primary care giver for most of her life. Further, Mr Kennedy argued that when he could no longer look after Penny and she was forced to leave her home and live in group accommodation, her condition deteriorated further. The defendants argued that deterioration in Penny’s mental health was not related to Mr Kennedy’s illness but rather the inevitable result of her multiple diagnosis. The defendants argued that Mr Kennedy, who was 82 years of age, would not have been able to continue to provide the care Penny required even if he had not contracted mesothelioma due to his age and Penny’s complex medical conditions.

The Court did not accept the defendants’ arguments and found that Mr Kennedy’s illness was a cause of the deterioration in Penny’s mental illness that led to her subsequent hospitalisations and placement in group homes. The Court found that but for his condition of mesothelioma Mr Kennedy would have provided care for Penny for a further 5 years. Indeed, during the court proceedings, Mr Kennedy had become so concerned about Penny that she returned to live with him despite his illness.

The court awarded over $230,000 for Mr Kennedy’s loss of ability to care for Penny. This amount was paid by the NSW defendant. The court ordered the WA defendant to pay an additional $80,000.00 in general damages to compensate Mr Kennedy for his loss of amenities of life in being unable to care for Penny.

The case shows that the loss of ability to provide services to a dependant can be a significant part of a claim. Although this part of the claim was hotly contested and required expert psychiatric evidence to be called, the result has given Mr Kennedy the ability to put money aside for Penny’s future, which has provided him some peace of mind.

The full judgment can be found here.

[1] As Mr Kennedy’s granddaughter is a under a Child Protective Order, pseudonyms have been adopted for the plaintiff, his wife and granddaughter so that they not be identified.

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