Articles

18 July 2024

Medical Experts and Compensation Claims

Connor Boccalatte

The Importance of Expert Evidence As part of our investigation and assessment of claims for compensation, we seek the assistance of medical experts regarding the severity of injuries suffered by our clients. However, it is crucial that the expert is able to provide the most effective and persuasive evidence so it may be accepted by a Court or Tribunal. In the below decision, a Plaintiff was successful in obtaining significant compensation for future care that he required as a result of suffering mesothelioma, due to asbestos exposure during his work as a carpenter. Davis v. Amaca Pty Ltd [2024] NSWDDT 2 On 22 February 2024, the New South Wales Dust Diseases Tribunal awarded a Plaintiff $897,020.64 for damages for the personal injuries suffered as a result of exposure to asbestos throughout his employment. As a result of asbestos exposure, as a carpenter between 1955 and 1968 in South Australia, and between 1969 and 1983 in Queensland, the Plaintiff was diagnosed with mesothelioma in 2023.  It was accepted that the Plaintiff had sufficient exposure in South Australia alone to cause his mesothelioma and similarly he had sufficient exposure in Queensland alone to cause his mesothelioma. Given mesothelioma is an indivisible injury and because the exposure in both States made a material contribution, the governing law of both States applied in relation to the determination of quantum. Issues at Trial The main issues at trial primarily concerned the assessment of general damages and future care. The Plaintiff submitted that the appropriate award for general damages should be $485,000.00 whereas the Defendant submitted that an award of $340,000.00 was appropriate.  In relation to the issue of care, the Plaintiff called Mr Stephen Hoey, OT, who gave evidence regarding hourly rates as follows: Weekdays $70 per hour Weeknights $75 per hour Saturday $95 per hour Sunday $120 per hour Public holiday $150 per hour Inactive sleep over $300. The Defendant called Mr Stephen Woolley, OT, who relied on a 24-hour commercial care model which provided 8 hours of active care and 16 hours of inactive care per day at a cost of $733.20 per shift, Monday to Friday and $953.28 per shift Saturday and Sunday. Decision The Tribunal assessed general damages at $475,000.00 based on findings of fact, and matters of opinion, impression, speculation, and estimation, calling for the exercise of common sense and judgement. The Tribunal also had some regard to awards for general damages for mesothelioma made in the past five years.  However, common sense, and a correct legal approach, mandates that each case must be decided on its own facts. The Tribunal preferred the evidence of Mr Hoey over that of Mr Woolley in relation to future care on the basis that: - he had visited the Plaintiff’s home whereas Mr Woolley had not; the hourly rates stated by both OT’s were very similar however, the rates stated by Mr Hoey are published rates from the NDIS for home care; in Mr Hoey’s considerable experience, the NDIS had created an enormous need for carers and the shortage of such workers meant that people were paying above the NDIS rates to obtain home care and the rates stated by Mr Hoey were “conservative”’ in Mr Hoey’s view; the “Calvery Care 24 hour rate” model stated by Mr Woolley was not suitable for someone with complex needs of a mesothelioma patient and this cheaper rate is for someone with more basic needs; and there was no allowance in the “Calvery Care 24 hour rate” model for OT home visit assessments regarding the suitability of care. In summary, the Plaintiff was awarded damages as follows: -