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Charles Abegglen

The late Mr Abegglen suffered from mesothelioma. Shortly before his death, Mr. Abegglen brought proceedings in the Dust Diseases Tribunal of New South Wales suing his former employer, Granosite Pty Limited (now ACN 000 246 542 Pty Limited) and Amaca Pty Limited (formerly James Hardie & Coy Pty Limited), the manufacturer of the asbestos cement sheets he worked with. After his death, 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 sum of $1,058,000.00. Judge Russell found that at the time Mr Abegglen first experienced symptoms in 2016, he was providing 16 hours per 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 her life.

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

Mr. Abegglen’s Estate appealed this part of Judge Russell’s decision to the NSW Court of Appeal and was successful. The NSW Court of Appeal found that there was no such constraint and increased the damages awarded to the Estate of the late Mr Abegglen by the sum of $305,860.00 making the total judgment $1,363,860.00.

This decision is important for all asbestos claimants. It is not unusual for a claimant to be carer, usually for their spouse and in some cases, their children. In many cases the claimant’s spouse is suffering from a progressive condition 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 dependent to be fully compensated for the claimant’s inability to provide such care in the past and in the future.

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