The Dust Diseases Tribunal has made an historic award of general damages to a plaintiff suffering from asbestosis. The case of Tullipan –v- Amaca Pty Ltd was brought by our client, an entrepreneurial carpenter who began his working life as an apprentice carpenter and ended it as the managing director of his own company. Judge Finnane found that our client would have continued his active involvement in the company, which was largely staffed by his immediate family, until at least age 80. However, our client, now 69, developed an asbestos related disease, the onset of which probably began in about 2000 and has progressed to a point where he is now bed ridden.

Exposure over a 20 year period

It was not in serious contention that our client was exposed to the asbestos contained in James Hardie products over a period of more than twenty years. The primary area of contention was the precise diagnosis to be given to him. It was clear on the medical evidence that two diagnoses were possible; it was either asbestosis or idiopathic pulmonary fibrosis (IPF). Given the length of our client’s asbestos exposure and the fact he probably had disease for 14 years, His Honour found that diagnosis of asbestosis was to be preferred. This finding was essential for our client to succeed, because IPF has no known cause and could therefore not be attributed to asbestos exposure.

The second main area of contention in the case was the question of damages. On general damages, the defendant invited His Honour to set the amount by reference to other cases in the Tribunal. His Honour however declined this approach instead preferring the approach that in every case general damages are to be quantified according to the particular loss of enjoyment of life and pain and suffering endured by the plaintiff. In this case, it was noted that our client had been prematurely precluded from fully participating in his only real pastime, namely the operation of his company. This had caused an immense sense of loss for our client, which was accompanied by the suffering arising from the terrible symptoms of advancing asbestosis. Thus, he was awarded an historic $350,000 in general damages, the largest for a sufferer of asbestosis to date.

The question of compensation for future loss of earning capacity was a mathematically vexed one because of our client’s position as a managing director. He took a nominal salary, and largely subsisted off his right to 40% of the company’s dividends. Although his asbestosis inflicted great cost on the company, which was forced to hire a number of staff to cover his absence, he did not lose his right to payment of those dividends. In the result, amidst a number of accounting proposals, His Honour calculated the loss by reference to the amount that the company would need to spend in order to replace our client. In the result, our client was awarded over $1 million for loss of future earning capacity.

In addition to these awards, our client received an amount for actual (past) loss of earnings, interest, loss of expectation of life, out-of-pocket expenses, and an amount for domestic care. In the result he received over $1.5 million by judgement.

The defendant has filed an appeal on the question of diagnosis and the award of general damages.