In brief - Victorian Court of Appeal refuses to overturn jury award of $730,000

The Court of Appeal's refusal to interfere with a jury award of over $700,000 for pain and suffering in a mesothelioma case will result in upward pressure in plaintiff demands in asbestos claims around the country.

Record jury verdict in Victorian asbestos case

On 22 December 2011 the Court of Appeal of the Supreme Court of Victoria confirmed a record jury verdict in an asbestos case involving a former James Hardie company. The decision - Amaca Pty Limited v King [2011] VSCA 447 - again demonstrates the significant hurdles facing defendants in asbestos litigation.

Mesothelioma diagnosed 40 years after six hour exposure to asbestos

Eric King was in his early twenties when he was exposed to asbestos at a James Hardie factory. Mr King was a fitter and machinist employed by an engineering firm. He attended the factory undertaking repair works for a total of around six hours. Nearly 40 years later he was diagnosed with mesothelioma - a near invariably fatal cancer which is a signature disease for asbestos exposure.

Claim that Amaca should have been aware of asbestos risk

Mr King sued Amaca Pty Limited, the former James Hardie & Coy Pty Limited. He alleged that Amaca should have been aware of the risks associated with his exposure to asbestos and that the exposure at the factory caused his mesothelioma.

Amaca defended the claim on the basis that Mr King's exposure to asbestos was not thought in 1972 to create a risk and that any such exposure did not cause his disease, it being impossible to state with certainty that but for the exposure at the factory, the mesothelioma would not have developed.

Jury finds that allowing asbestos exposure was negligent

After an eight day trial a jury found in favour of Mr King, determining that Amaca had been negligent in allowing the asbestos exposure at its factory. Allowing for the fact that some of the heads of damage had been agreed prior to the jury verdict, the jury award of $1,150,000 included $730,000 in damages for pain and suffering.

Damages for pain and suffering higher than in other mesothelioma cases

That amount is substantially larger than amounts awarded by judges in other mesothelioma cases around the country. By way of comparison, the award in the Booth mesothelioma case, which was recently the subject of a High Court judgment, was $250,000. (For more information about the Booth case, please see our earlier article All asbestos exposures may be deemed a cause of mesothelioma.)

Amaca appeal on basis of scientific literature available in 1972

Amaca appealed. It argued that the relevant scientific literature available in 1972 did not show that a person with Mr King's exposure to asbestos was perceived to be at risk of disease. Amaca relied on various contemporaneous exposure standards published by the National Health and Medical Research Council (NHMRC).

Court finds that Amaca knew of the risks of asbestos exposure

However, documents from Amaca's records were held by the Court of Appeal to demonstrate knowledge of "a significant risk that even minimal exposure to asbestos dust could result in asbestosis and mesothelioma."

It appeared to the Court that Amaca had "a considerably more developed insight into the disastrous effects of asbestos dust than did the NHMRC." The Court of Appeal refused to overturn the jury verdict on foreseeability of risk grounds.

Sufficient expert evidence to prove causation

The causation appeal also failed. The Court of Appeal held there was sufficient expert evidence for the jury to properly find or infer that the factory exposure had caused the mesothelioma in a legal sense. In that regard the cumulative dose theory of mesothelioma causation considered by the High Court in Booth was also relevant in this case.

Argument that damages unreasonably high

Finally, Amaca argued that the award of $730,000 in general damages was so high that no reasonable jury could arrive at it. Amaca buttressed that argument by comparing the award to mesothelioma judgments from around the country. The highest comparable award was said to be $300,000.

The Court of Appeal emphasised that restrictions on damages in other jurisdictions did not apply to asbestos cases in Victoria. It also analysed the jury award on the basis of the concerns of "contemporary society", in particular remuneration.

Comparison with damages awarded in defamation cases

The appeal judges noted that "damages awarded by juries in cases of defamation are capable of providing us with at least some guidance as to the amount awarded in this case..." The Court was not persuaded that the award of general damages by the jury was so excessive as to demand appellate intervention.

Implications for plaintiffs and defendants in asbestos litigation

The comments by the Court of Appeal in relation to damages will be used by plaintiffs' lawyers around the country in attempts to increase the "tariff" in asbestos cases.

The response by defendants must emphasise the particular factual circumstances of Mr King's claim and the need for awards to reflect some proportionality with damages in non-asbestos cases.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2024.

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