Armitage v State of New South Wales (NSWDDT 2023)

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Background

Increase of general damages in NSW with respect to mesothelioma confirmed.

Brief Facts

In the case Armitage v State of New South Wales, Davina Jean Armitage, acting as the legal personal representative of her late mother, Dian Estelle Pond (the deceased), sued the State of New South Wales as the successor to the liabilities of the NSW Government Railways (the deceased’s husband’s former employer).¹ The Estate sought general damages, including interest, damages for the loss of the deceased’s life expectancy and damages for her need for gratuitous care and assistance due to her illness.

The only issue to be determined at trial was the quantum of damages, specifically general damages and care. The Estate contended that the deceased required full-time care for anxiety and fall risks, which was argued as necessary due to the deceased’s condition, rather than needs arising from the tort.

At 76 years of age, the deceased was diagnosed with malignant pleural mesothelioma caused by the inhalation of asbestos dust and fibres emanated by the shaking out and laundering of the asbestos laden work clothes of the deceased’s husband. Her husband worked as a fitter for the Railways at the Enfield, Redfern and Chullora depots from 1962 to 1970, handling asbestos-containing materials during his employment.

Prior to the onset of symptoms in late 2021, the deceased was completely independent and living with her grandson in Menai, NSW. As her health deteriorated the deceased became increasingly dependent on her grandson for assistance and by December 2021, diagnosis of mesothelioma was confirmed. By March 2022, the deceased moved to Melbourne to live with her daughter citing the need for a greater level of care and support. The deceased remained living with her daughter until her death on 27 September 2022.

Judgment

General Damages

The Estate sought $485,000 in general damages, while the defendant proposed $360,000, citing comparable cases for support.²

The defendant argued that the case of Torok v Allianz Australia Insurance Ltd (NSWDDT 2023) (Torok), where general damages were awarded at $420,000, was an extreme case and should not be used as a new standard or baseline for general damages. Torok involved a claimant who suffered for over five years and was in palliative care due to severe symptoms. The defendant tried to distinguish the present matter from Torok on the basis that the deceased’s symptoms were not as severe, arguing that the deceased’s symptoms were manageable and that she maintained a significant level of independence.

Her Honour Judge Strathdee found there was significant evidence of the deceased’s physical and psychological suffering and assessed general damages at $450,000, surpassing the sum awarded in Torok.

Gratuitous Care and Assistance

Her Honour was asked to consider damages for gratuitous care and assistance, the central issue being the extent and duration of care required by the deceased.

The Estate submitted that her daughter provided approximately 30 hours of care per week to the deceased while the deceased was in Sydney. This included various household tasks, accompanying her to medical appointments and caring for her during hospital admissions. Her daughter gave evidence that her mother was unsteady, often hitting walls, and requiring the use of a walker. She also gave evidence of providing care to alleviate her mother’s anxiety, which had been present since she moved to Melbourne, with the deceased expressing a desire not to wake up.

The defendant submitted that the deceased did not require full-time attendant care because in her affidavit, she described little pain. The defendant alleged that the suggestion that the deceased downplayed her issues was evidence that her daughter might have been exaggerating her mother’s condition. They further submitted that there was no basis to conclude that the deceased required round-the-clock care from 1 June 2022. The defendant’s ultimate position was that the motivation for caring for the deceased was related to comfort, and not a genuine response to the deceased’s incapacity.

Judge Strathdee stated that whether some of the services were provided to the deceased regardless of her disease was irrelevant. The defendant was not entitled to a credit for any care, supervision, or service which the family may have provided to the deceased had she not suffered disability, where there is no pre-accident proven need for such a service³. Her Honour highlighted that damages could be awarded in respect of family helping the deceased whilst she was in hospital recuperating and in need of solace and comfort.⁴ Damages could also include compensation for the provision of passive care, which includes forms of protective attention, such as constant supervision and the availability to step in, in the case of an emergency.⁵ Her Honour stated that ‘whether or not [the] care was provided is irrelevant, however, here the appropriate loving care was provided by the daughter, and importantly despite that circumstance, the deceased needed that care.’

The deceased’s anxiety was a significant factor in the matter, given the contributing factors of her history of cancer and witnessing her husband’s mesothelioma-related death. The defendant rejected the need for care due to anxiety on the basis that the need should be viewed through a medical context, not the subjective opinion of family. However, her Honour determined that ‘[w]hether sitting next to her, rubbing her legs or back or just sitting with her, this is a vital need created by the negligence of the defendant. The care that was provided to the deceased was warm, loving and necessary.’ ⁶

Her Honour emphasized the distinction between providing physical care and offering emotional and psychological support, and the challenge of quantifying the latter in specific hours or minutes. Regardless of whether care was provided by others or the plaintiff, the need remained, and the absence of payment does not negate the daughter’s time commitment.

Her Honour awarded $109,106 in damages for past gratuitous care and service, with an additional $10,566.21 in interest.

Implications:

Strathdee J awarded the following damages:

The decision in Armitage acknowledges Torok as a new base line for damages, and will likely increase the award for general damages to a ‘base level’ of $450,000 in line with her Honour’s award.