WA Case Notes

By Katie Cranfield

Parkin v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd)

Parkin v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) [2020] WASC 306 is highly significant as, not only is it the first mesothelioma quantum judgment since 2011, it establishes a precedent for other mesothelioma survivors, with the defendant being required to fund immunotherapy in the form of Keytruda. Le Miere J recalibrated the way general damages are calculated, arriving at $360,000, the highest sum of general damages to be awarded in WA for asbestos cancer. Additionally, the total damages of $1,041,480 establishes a standard for future cases. Key judgments concern pelvic tumour, life expectancy, Keytruda treatment, future economic loss, gratuitous services, and general damages. In October 2019 the plaintiff Ms Parkin was diagnosed with mesothelioma, caused by exposure to asbestos whilst assisting with home renovations in the 1970s and 1980s. The defendant James Hardie Industries (now Amaca Pty Ltd) manufactured the products, admitting liability for the damage the plaintiff suffers due to mesothelioma. Ms Parkin was fit and healthy until late-2018, subsequently diagnosed with mesothelioma in October 2019 and commencing chemotherapy in November 2019, treated primarily by oncologist Dr Lam. In November 2019, aged 62, Ms Parkin indicated she did not intend to retire in the near future. However, due to her deteriorating health, Ms Parkin resigned from her job in December 2019. Ms Parkin worked alongside and lives in a two-storey house with her sister Margaret, both unmarried with no children. As Ms Parkin is unable to do so due to her health, Margaret undertakes the domestic duties, assists Ms Parkin with daily living tasks, and drives Ms Parkin to appointments. In February 2020 Ms Parkin underwent combined chemotherapy and immunotherapy using Keytruda (the brand name for cancer immunotherapy drug Pembrolizumab). Side effects rendered Ms Parkin unable to partake in many aspects of life.

The plaintiff adduced expert evidence from treating oncologist Dr Lam, forensic accountant Mr Thompson, and occupational therapist Ms Cogger. The defendant adduced expert evidence from medical experts Professor Fox, Dr Mohan and Professor Cohen, forensic accountant Ms Lindsay, and occupational therapist Ms Cunningham. In March 2020 it was decided that Ms Parkin would not undergo surgical management for her pelvic tumour due to the advanced malignant mesothelioma and poor prognosis. On the balance of probabilities it was agreed that the pelvic mass was likely malignant. His Honour stated “my finding that the pelvic mass is causally related to the mesothelioma means that the pelvic mass does not need to be taken into account in considering the plaintiff’s life expectancy and future loss.”

Prognosis was another key issue. Dr Lam indicated poor life expectancy since the average mesothelioma prognosis is 12 to 18 months from diagnosis. In his 28 May 2020 report, Dr Lam estimated Ms Parkin may die within six months and, despite the forensic accountants and occupational therapists assuming different life expectancies, parties agreed to accept Dr Lam’s prognosis for the purpose of assessing damages. Indeed, parties agreed damages for gratuitous services of a domestic nature or relating to nursing and attendance (referred to by the plaintiff as Griffith v Kerkemeyer damages) to be calculated assuming the 28 November 2020 prognosis. Ms Parkin’s $53,755.38 claim for nine Keytruda treatments succeeded. His Honour encapsulated that: “Keytruda is a brand name for Pembrolizumab. Keytruda is not a chemotherapy or radiotherapy drug – it is a checkpoint inhibitor, a type of immunotherapy. It blocks proteins that stop the immune system from attacking the cancer cells.” When cross-examined, Dr Lam indicated he both offered and recommended combination chemotherapy and immunotherapy to Ms Parkin, who gave evidence that undergoing this treatment “benefitted her and improved her wellbeing.” Subsequently, this treatment continued as “Ms Parkin was getting clinical benefit and a CT scan showed stable pleural disease. At that time there was slight progression of pleural effusion and progressive ascites.” The defendant argued the plaintiff must establish therapeutic or medical benefit, with the touchstone being reasonable, citing Sharman v Evans where the High Court found that the trial judge erred in awarding damages for future nursing and medical attention assuming the plaintiff would not permanently live in hospital. In Sharman Barwick CJ elaborates: “the expense of that course would be, to my mind, quite disproportionate to any causal connexion which might possibly be found between that transfer and the appellant’s negligence.” In the present case, Le Miere J found that: “the Keytruda treatment was reasonably required by Ms Parkin in consequence of the mesothelioma caused by the defendant’s tort. The treatment is appropriate in the sense that it serves a purpose. There is currently no cure for mesothelioma. Standard treatment includes chemotherapy. Immunotherapy is not yet a standard first line treatment for the cancer but medical research, in particularly the DREAM study, has shown that the treatment has a greater capacity to reduce the progression of the disease than alternative treatment by conventional chemotherapy alone. The cost is substantially greater than the cost of chemotherapy alone. However, the additional cost of the treatment is not disproportionate to its benefits.” Future economic loss calculations must account for the total period for which the plaintiff could have expected to earn, had her lifespan not been impacted by mesothelioma. This figure is offset by the saving of expenditure on the plaintiff’s maintenance during lost years. Relying upon Bowen v Tutte the plaintiff submitted “contingencies for loss of earning capacity will generally be deducted at the rate of 2% to 6%.” The defendant submitted that deduction for vicissitudes depends on the assumed remaining period in the workforce. After considering the forensic accountants’ report and required modification, His Honour calculated retirement age of 70 years, vicissitudes of 5%, and weekly expenses of $240, arriving at $132,594 for future economic loss.

The occupational therapists’ report divided Ms Parkin’s past care into eight stages. A key issue concerned Margaret’s assistance whilst Ms Parkin was

hospitalised. Nicholson held that minor activities improving a plaintiff’s comfort carried out by a relative whilst the plaintiff is hospitalised does not fulfil the Griffiths v Kerkemeyer relevant need principle followed by Australian Courts. His Honour allowed for “4 hours per day during Ms Parkin’s hospitalization” explaining that courts “must have regard to the facts of each case. It should not be assumed that the nursing staff in hospitals can provide all necessary services.” Another key issue was provision of emotional support. His Honour stated “supervision or protective attention provided by Margaret is a compensable gratuitous service.” His Honour referenced Wormleaton v Thomas where Campbell J accepted that one cannot provide emotional support to oneself, and Van Gervan v Fenton where the High Court stated protective attention is a service. Ms Parkin was granted $27,615 for future aids, appliances and equipment. The parties agreed on damages of $11,747 for future aids, appliances and equipment; His Honour also allowed $15,868, agreeing “that a stair lift is reasonably necessary.” After considering precedent and having “regard to the particular circumstances of the plaintiff” including that the “impact on the plaintiff of mesothelioma has been enormous” and “shattered” her life, His Honour awarded general damages of $360,000. In calculating this amount, His Honour recalibrated the manner in which general damages are determined. The defendant cited Lowes v Amaca Pty Ltd where “Corboy J undertook a survey of damages for pain and suffering and loss of enjoyment of life”, determining damages of $250,000. However, Le Miere J explains that Lowes was “decided almost 10 years ago and awards of damages have increased significantly during that period.” Similarly, in Amaca Pty Ltd v King the Court dismissed the argument that $730,000 was too high for a reasonable jury properly instructed and giving due attention to evidence to arrive at. In particular, the Court pondered: “who doubts that modern society may place a higher value on the loss of enjoyment of life and the compensation of pain and suffering than was the case in the past?” Resultingly, Le Miere J has established a fresh standard for calculating general damages in similar cases. In total, Ms Parkin was awarded $1,004,148 in damages. This is significant as it sets a new, higher standard for defendants to meet, as well as establishing a precedent in requiring the company responsible for asbestos exposure to fund treatments including immunotherapy like Keytruda. URL: https://ecourts.justice.wa.gov.au/eCourtsPortal/Decisions/ViewDeci

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Endnotes

1 Parkin v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) [2020] WASC 306 [40]. 2 Griffith v Kerkmeyer (1977) 139 CLR 161. 3 Parkin v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) [2020] WASC 306 [46]. 4 Parkin v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) [2020] WASC 306 [50]. 5 Parkin v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) [2020] WASC 306 [51]. 6 Sharman v Evans (1977) 138 CLR 563, 573. 7 Sharman v Evans (1977) 138 CLR 563, 566. 8 Parkin v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) [2020] WASC 306 [69]. 9 Bowen v Tutte (1990) Aust Torts Reports 81-043 (Malcolm CJ) 68, 083, (Wallace J) 68, 807. 10 Bowen v Tutte (1990) Aust Torts Reports 81-043 (Malcolm CJ) 68, 083, (Wallace J) 68, 807. 11 Nicholson v Nicholson (1994) 35 NSWLR 308, 323-334. 12 Waller v Suncorp Metway Insurance Ltd [2010] 2 QdR 560 [10]-[11]; Wormleaton v Thomas & Coffey Ltd (No 4) [2015] NSWSC 260. 13 Parkin v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) [2020] WASC 306 [117]. 14 Parkin v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) [2020] WASC 306 [116]. 15 Parkin v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) [2020] WASC 306 [131]. 16 Wormleaton v Thomas & Coffey Ltd (No 4) [2015] NSWSC 260. 17 Van Gervan v Fenton (1992) 175 CLR 327. 18 Parkin v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) [2020] WASC 306 [151]. 19 Parkin v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) [2020] WASC 306 [165]. 20 Parkin v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) [2020] WASC 306 [165]. 21 Lowes v Amaca Pty Ltd [2011] WASC 287. 22 Parkin v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) [2020] WASC 306 [159]. 23 Parkin v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) [2020] WASC 306 [160]. 24 Amaca Pty Ltd v King (2011) 35 VR 280. 25 Amaca Pty Ltd v King (2011) 35 VR 280 [177].