We are delighted by the judgment handed down by Justice Le Miere this morning in the Supreme Court of Western Australia in favour of Christine Parkin, a 63 year old woman who suffers from mesothelioma, the terminal asbestos related cancer.
Ms Parkin’s claim is the first mesothelioma trial to run to judgment in Western Australia in recent years. By in large the majority of claims settle before the end of trial.
Ms Parkin’s claim was brought against Amaca Pty Limited (formerly James Hardie & Coy Pty Limited) the manufacturer of asbestos cement sheeting her father used to construct an extension to the family home when Ms Parkin was a child in the 1970s and 1980s.
This judgment will assist all Plaintiffs by setting an appropriate award for general damages (the head of damage for pain and suffering) which is commensurate with the times but also by acknowledging the extensive gratuitous care provided to sufferers of mesothelioma by their loved ones.
Justice Le Miere in his judgement detailed Ms Parkin’s symptoms of shortness of breath, fatigue and chest pain which first appeared following a bad cold she suffered in December 2018. Ms Parkin was initially misdiagnosed with pneumonia following a chest x-ray however, several months later she continued to experience increasing breathlessness, fatigue and chest pain. This led doctors to perform a CT scan in September 2019 which showed fluid on her right lung. Ms Parkin subsequently underwent a pleural biopsy and PET scan and a diagnosis of malignant mesothelioma was confirmed on 23 October 2019.
Since her diagnosis Ms Parkin has undergone chemotherapy treatment suffering significant side effects including stomach cramps, nausea and fatigue. Ms Parkin has also self-funded treatment using chemotherapy in conjunction with an immunotherapy drug called Pembrolizumab (more commonly known as Keytruda). This combination of therapies has been the basis of the DREAM clinical research trial being headed by Professor Anna Nowak at the Sir Charles Gairdner Hospital. Justice Le Miere held that the use of Keytruda by Ms Parkin was reasonable in the circumstances and the Defendant once known as James Hardie ought to be responsible for paying the cost of this treatment. He noted while there is no cure for mesothelioma the DREAM study has shown that Keytruda in conjunction with chemotherapy has a greater capacity to reduce diseases progression than treatment with chemotherapy alone, meaning a longer life expectancy for sufferers.
Several other issues led to Ms Parkin’s matter being contentious enough to proceed to trial including the value of general damages (how much is a person’s pain and suffering worth), whether a mass in Ms Parkin’s abdomen was a metastases of her mesothelioma or a second unrelated medical condition and whether the level of care she was receiving from her sister, Margaret was reasonable and necessary. On these issues His Honour Justice Le Miere found in favour of the Plaintiff in that the mass in Ms Parkin’s stomach which caused fluid to build up in her abdominal cavity was related to her mesothelioma and the level of care provided by her sister Margaret was reasonable as was the use of SilverChain care rates.
Most importantly for all Western Australian based mesothelioma sufferers was the Honourable Justice Le Miere’s award for general damages (pain and suffering) in the sum of $360,000. This judgment is a significant increase from the previous judgment on general damages in the matter of Lowes v Amaca Pty Limited in which the Plaintiff who was in his early 40s was awarded $250,000.
The judgement of Justice Le Miere this morning brings Western Australia’s compensation awards for general damages in line with other states of Australia including New South Wales where the Dust Diseases Tribunal regularly awards general damages in the sum of $350,000 to $400,000.
We are pleased for Ms Parkin. This is a fantastic win for the Plaintiff.