Is an unproven medical treatment appropriately awarded in damages?

  • Newsletter Article
  • Published 15.09.2020
Parkin v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) (WASC 2020)

Key Takeaways 

In Parkin v Amaca Pty Ltd (Parkin), the WASC held that Keytruda therapy, a type of immunotherapy which has not been proven to be effective in mesothelioma cancers, is compensable on the basis that the treatment is reasonably required, and the cost of such treatment is not disproportionate to its benefits. 

Brief Facts

The plaintiff is a 63-year-old woman who was exposed to asbestos while assisting in the construction of an extension to her family home using asbestos cement sheets in the 1970s and 1980s. The plaintiff was diagnosed with mesothelioma in October 2019.

Liability was admitted by the defendant with the matter confined to whether immunotherapy (received concurrently with chemotherapy) was reasonably required. The quantum of damages for pain and suffering and gratuitous services was also in dispute.

The plaintiff commenced immunotherapy in the form of Keytruda in February 2020 on the recommendation of her treating oncologist. From that time, her sister with whom she lives was alleged to have performed all domestic duties and assisted the plaintiff with daily living tasks.

Judgment

Le Miere J in the WASC assessed the plaintiff’s damages in the sum of $1,041,480. In reaching his decision, Le Miere J considered the following three issues:

Issue one – medical treatment for combined chemotherapy and immunotherapy

The plaintiff gave evidence that immunotherapy (Keytruda treatment) benefited her and improved her wellbeing. The plaintiff’s oncologist gave evidence that following the Keytruda treatment the plaintiff’s pleural disease was stable and the pleural effusion was subsiding.

The defendant submitted that the plaintiff’s claim was not supported by medical evidence, and that the plaintiff must prove there is some reasonable therapeutic or medical benefit for the treatment.

Le Miere J determined that the treatment was reasonably required in respect of the plaintiff’s mesothelioma. He considered it appropriate for the following reasons:

  • The treatment serves a purpose. It is not (presently) a standard first line treatment for mesothelioma but the medical research presented demonstrates that the treatment has a greater capacity to reduce the progression of the disease than alternative treatment by conventional chemotherapy alone.  
  • While the cost is significantly greater than chemotherapy alone, it is not disproportionate to its benefits given the nature and effect of mesothelioma, and the capacity of the treatment to reduce the progression of the disease and improve wellbeing.  

Issue two - gratuitous services

The defendant submitted that whilst emotional or psychological support may be of comfort, there is no appropriate expert evidence that the plaintiff had a need for such supervision and care.

His Honour considered Van Gervan v Fenton (CLR 1992) in which the High Court considered ‘protective attention’ was a service, and that constant care and attention provided by (in that case) the plaintiff’s wife as the provision of services. 

Le Miere J found that the supervision or protective attention provided to the plaintiff by her sister was a compensable gratuitous service.

Issue three – general damages for pain and suffering

The plaintiff referred to a number of cases from NSW and WA assessing the plaintiff’s damages in the sum of within a range of $350,000 to $400,000. 

The defendant referred to Lowes v Amaca Pty Ltd (WASC 2011) which awarded the plaintiff $250,000 by drawing on cases from the WASC and the NSW DDT.

Le Miere J observed that Lowes was decided almost 10 years ago and awards of damages have increased significantly since then.

The defendant referred the Court to the decision in Kennedy v CIMIC Group Limited and CPB Contractors Pty Ltd (NSWDDT 2020), in which Scotting J determined damages in regard to a defendant in NSW and WA, saying:

In my view there should be general consistency between the awards of general damages between the defendants because they have resulted in the same indivisible damage. In assessing the appropriate award of general damages I am applying the common law of Australia, as modified by s10A.  

Ultimately, Le Miere J determined that the court must have regard to the particular circumstances of the plaintiff when awarding general damages. In this instance, he considered that the impact of mesothelioma on the plaintiff had ‘shattered’ her life and awarded $360,000 as an appropriate award for damages.

Implications

Parkin paves the way for litigants to claim damages for out of pocket medical expenses on experimental treatments. Le Miere J awarded damages for the Keytruda procedures undertaken by Ms Parkin, and found that treatment costs are to be determined on a case-by-case basis. The Parkin decision is likely to result in an increase in claims for out of pocket expenses for immunotherapy treatments such as Keytruda therapy, particularly in Western Australia. In New South Wales, medical expense claims for Keytruda therapy are not eligible for reimbursement by icare Dust Diseases Care which operates to cover the out of pocket and medical expenses of workers exposed to asbestos dust and fibre in the course of NSW employment. 

The damages awarded in Parkin set a new high water mark for general damages in a mesothelioma claim in Western Australia. The decision brings Western Australia into line with other Australian jurisdictions in terms of awards for general damages in mesothelioma claims. 
 

Lian Chami

Partner

P: 02 8257 5824

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