McGrath v Allianz Australia Insurance Limited [2011] NSWDDT 1 (15 March 2011)

Published 28 Aug 2015

Mr Bevan Arthur McGrath, the Plaintiff, initiated proceedings against his former employer in 2009. Mr McGrath had suffered from asbestos related pleural disease (ARPD). At this time, he also sought an order that he may claim further damages in the future if he contracted asbestosis, mesothelioma or asbestos induced carcinoma pursuant to section 11A of the Dust Diseases Tribunal Act 1989 (NSW).

In February 2010, the matter was settled for $140,000 in favour of the Plaintiff. At this time, the Tribunal made an order, pursuant to Regulation 5(4) of the Dust Diseases Tribunal Rules, that the Plaintiff could seek further damages if another dust-related disease occurred.

In November 2010, the Plaintiff sought further damages after contracting mesothelioma.

ISSUES

The parties agreed on the amount to be paid for damages for past and future domestic care and assistance which totalled $40,000 and the amount to be paid for loss of expectation of loss which totalled $20,000.

On 15 March 2011, President O’Meally was required to make a decision regarding the amount of general damages for pain and suffering which should be awarded in relation to the Plaintiff’s mesothelioma.

It was noted that the Plaintiff’s pain and discomfort had significantly increased after contracting mesothelioma. At the end of 2010, the Plaintiff commenced chemotherapy treatment which has brought with it side effects such as night sweats, cold sores in his mouth, hearing loss and hair loss. As a result of the condition, the Plaintiff experienced nausea and constipation and he was restricted in his ability to continue his hobbies such as fishing and bike riding.

President O’Meally noted how the assessment of general damages had to ensure that the Plaintiff was not compensated twice. His condition after contracting ARPD was considered and then compared to how his life has been affected by mesothelioma.

DECISION

President O’Meally awarded general damages totalling $215,000.

TOTAL FURTHER DAMAGES

1.       General damages, for pain and suffering, were awarded at $215 000 with an interest of $1 075.

2.       Damages for loss of expectation of life were awarded at $20 000.

3.       Damages were awarded for the gratuitous care provided to Mr McGrath as a result of the mesothelioma. This amounted to $40,000 including interest.

The further damages awarded to Mr McGrath on this date totalled $276,075.00.

If you suffer from mesothelioma or any dust related disease, please do not hesitate to contact the experienced dust disease lawyers and barristers at Gerard Malouf and Partners.