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Fabian Kennedy

Mr Kennedy contracted mesothelioma as a result of his work as a surveyor with Leighton Contractors. Mr Kennedy started working for Leighton Contractors in New South Wales. After a few years he was asked by Leightons to relocate to Perth where he worked for the company until 1980. Mr Kennedy had exposure to asbestos both in New South Wales and in Western Australia when he was present on site while other workers cut and installed asbestos cement sheets, and in the case of the Reserve Bank Building in Perth, sprayed the steel beams with asbestos.

A large part of Mr Kennedy’s claim related to his loss of ability to provide care for his granddaughter, Penny. Penny had lived with and been cared for by Mr Kennedy and his wife since she was 2 years of age. Penny suffers from a number of psychological issues and her mental health deteriorated significantly after Mr Kennedy’s diagnosis resulted in multiple hospitalisations, and for a period of time the Kennedys could no longer care for her, Penny was placed in a group home where she suffered abuse.

As Mr Kennedy was exposed to asbestos both in New South Wales and Western Australia, the Court had to assess his damages twice as the law in relation to damages in Australia differs from State to State. Mr Kennedy was able to recover for his loss of ability to provide care to his granddaughter in New South Wales but not in Western Australia. The Judge however, in awarding damages in Western Australia, increased the damages for pain and suffering to consider the effect of Mr Kennedy of him being unable to look after his granddaughter.

The issue as to the award for loss of capacity to provide services for Penny was hotly contested. The defendants argued that Mr Kennedy would not have been able to look after Penny even if he had not contracted mesothelioma because of his age and her severe mental illness. The Court did not accept this argument.

Mr Kennedy was awarded the sum of $685, 726.00 including over $230,000.00 for his loss of ability to care for Penny.

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