Western Australia: Compensation for Mesothelioma Claimants 

by Laurie Kazan-Allen



On 14 December, 2001, Supreme Court Justice Pullin awarded record-breaking compensation to a mesothelioma plaintiff in a judgment handed down in Western Australia (WA) in McGilvray v Amaca Pty Ltd. (formerly James Hardie & Coy Pty Ltd.). Mr D. McGilvray, a 54 year old builder from Scotland, won damages of A$1,077,333 plus interest for exposure to asbestos contained in building products supplied by the defendant during the 1970s. The defendant admitted liability at the beginning of the trial; the assessment of damages was the sole subject under consideration by the judge. Calculations for general damages, loss of expectation of life, past and future loss of earning capacity, past and future care and services, past and future medical and other expenses and loss of ability to sell the business D and D S McGilvray as a going concern were computed with assistance from past customers, treating physicians, an occupational therapist and other experts. The judgment is thorough in its financial analysis and sympathetic to the plaintiff who was formerly fit enough to annually walk 120 kilometres on the Bibbulman Track and is now house-bound, unable to walk more than 20 metres without becoming breathless.

Two weeks earlier, the same team of Solicitor Luisa Formato and Barrister John Gordon had won A$363,499 from Justice Scott also sitting in WA’s Supreme Court on behalf of Mr B. Easther. Once again, Amaca Pty Ltd. admitted negligently supplying asbestos products used by the plaintiff during his employment in the construction industry. Evidence subsequently heard by the judge was confined to information relevant to calculating the amount of damages due. Reading the twenty-four page judgment, one is struck by the ubiquity of asbestos in Australian building materials. The final sum awarded included a component of A$9,090 for care for the plaintiff’s dependent 91 year old mother. Commenting on the two decisions, Luisa Formato, the plaintiffs’ solicitor, said: "These claims are the first to run to judgment in Western Australia in more than seven years. In each case, the plaintiffs were awarded significantly more than amounts they had originally been offered. Other plaintiffs should take courage from these results and choose to pursue their claims when inadequate offers of settlement are made by defendants. The battle continues with the defendant having lodged an appeal against the McGilvray decision."

In Australia, the rules governing asbestos litigation vary from state to state. Currently, in WA, some claims die with the plaintiffs, thereby ensuring that if a defendant is able to prolong a court case long enough the final pay-out is certain to be reduced. The purpose of The Law Reform (Miscellaneous Provisions (Asbestos Diseases)) Bill 2001 (No. E8) is "to provide for the survival of claims for damages in certain causes of action in relation to dust-related conditions…for the benefit of the estate of a deceased person where the death is attributable to the inhalation of asbestos. Damages include pain or suffering; any bodily harm or mental harm; (and) the curtailment of expectation of life." The bill, laid before the Parliament of WA on 30 November, 2001, is receiving bipartisan support and should be adopted soon.


February 1, 2002



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