Record award of damages in the Dust Diseases Tribunal

Published 15 Jan 2016

Perez v State of New South Wales [2013] NSWDDT 1  [Judge: Curtis J ]

This case involved the assessment of damages that should be awarded for past and future care of dependents.

Facts:

Mr. Perez, 78 years old, brought proceedings against the Public Transport Commission of New South Wales for contracting mesothelioma during his employment. In 1987 the Defendant removed and replaced the asbestos root of its bus depot in Chullora. During the course of this replacement, the Defendant did not protect Mr. Perez from inhalation of asbestos dust and fibre.

Mr. Perez first manifested symptoms of the disease in May 2012. In July 2012, an MRI scan exhibited metastatic cancer of the spine. Thereafter, Mr. Perez developed large pleural effusions in his lungs and was diagnosed with mesothelioma.

Issue:

The main issue in this case was assessing the quantum of damages that should be awarded for past and future care for Mr Perez’s dependants. Prior to his diagnosis, Mr Perez provided gratuitous domestic care and assistance to his wife and grandchildren.

 Mrs Perez contracted rheumatic fever at the age of 14, which caused some permanent damage to her heart.  Medical evidence communicated that due to Mrs Perez’s rheumatic valvular disease she was not able to care for herself.

Before Mr Perez fell ill he used to transport his grandchildren, Yanitza and Ariela to extracurricular activities and looked after them 3 nights per week, whilst their parents were at work. After his diagnoses the grandchildren continued to stay with Mr Perez and his wife. His son-in-law also adjusted his work schedule so he could drive the children to school.  

Judgement:

Mr. Perez argued that he was entitled to a sum of damages equivalent to the value of his capacity to provide domestic care and assistance to his grandchildren. His Honour found that it was unreasonable to provide the services to the grandchildren at a cost because of the incapacity of Mr Perez. Mrs Perez continued to stand willing and able to provide such care that only a grandmother could provide to her grandchildren. She formerly provided that care by her presence at the same place, and for the same hours, in the company of her husband. His Honour found it strange that a paid carer would be require to fulfil Mr Perez’s role. His Honour awarded $742,543.79 as an equivocal quantum for damages.

His Honour also awarded damages for past and future care of Mr Perez’s other grandchildren, Sebastian and Javier.

Summary of Damages

General Damages: $290,000.

Interest on General Damages: $2,250

Loss of expectation of life: $11,400

Past Gratuitous Care for the Plaintiff: $10,280.40

Future Care for the Plaintiff: $9,971

Future Care for Mrs. Perez: $65,873.64

Past and Future Care for Yanitza and Ariela: $742,543.79

Past and Future Care for Sebastian and Javier: $186,187.40

Total: $1,318,506.24

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.