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[2026] QSC 16
General information, not legal advice.
Supreme Court of Queensland
2026-02-19
Smith J
Original judgment source is linked above.
DAMAGES - GENERAL PRINCIPLES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - general damages - where the deceased contracted mesothelioma due to the negligence of the defendant - whether the court should have regard to jury verdicts in recent cases as to the assessment of general damages - whether the court should have regard to interstate decisions - whether the court should have regard to awards in defamation cases - amount to be awarded for loss of expectancy of life
Jury Act 1995 (Qld) s 4
Succession Act 1981 (Qld) s 66
Amaca Pty Ltd v King [2011] VSCA 447; (2011) 35 VR 280,
Amaca Pty Ltd v Tullipan [2014] NSWCA 269, considered
Amaca Pty Ltd v Werfel [2020] SASCFC 125; (2020) 138
Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154;
[2018] VSCA 154; (2018) 56 VR 674, considered
BHP Billiton Ltd v Hamilton [2013] SASCFC 75; (2013) 117
Bilson v Vatsonic Communications Pty Ltd [2024] QCA 171; (2024) 333 IR 430, considered
Bocok v Enfield Rolling Mills Ltd (UK) [1954] 1 WLR 1303,
Burley v Watson (1962) 62 SR (NSW) 545, cited
Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178
Chakravarti v Advertiser Newspapers Ltd (No 2) (1998) 72 SASR 361, considered
Clarence Colliery Pty Ltd v Bunkovic (1985) ATR 80-761,
Cootes v Concrete Panels Qld Pty Ltd [2019] QSC 146, cited
Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR
CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1, applied
Denzley v Nominal Defendant QSC 15 June 1993, cited
Dolbey v Goodwin [1955] 1 WLR 553, cited
Footscray Football Club Ltd v Kneale [2024] VSCA 314;
[2024] VSCA 314; (2024) 77 VR 168, considered
Greenall v Amaca Pty Ltd [2023] QSC 137; (2023) 17 QR 47, cited
Greenall v Amaca Pty Ltd [2024] QCA 132, cited
Hili v R [2010] HCA 45; (2010) 242 CLR 520, considered
Hills v State of Queensland [2006] QSC 244, considered
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203
Kable v Director of Public Prosecutions [1996] HCA 24; (1996) 189 CLR 51, applied
Kennedy v CIMIC Group Ltd [2020] NSWDDT 7, considered
Lange v ABC [1997] HCA 25; (1997) 189 CLR 520, cited
Lapetina v Elgee Park Pty Ltd [2024] VSCA 39, considered
Lipohar v R [1999] HCA 65; (1999) 200 CLR 485, applied
Lowes v Amaca Pty Ltd [2011] WASC 287, cited
Martin v Amaca Pty Ltd Queensland Supreme Court No. 14524/23, considered
McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86,
Miller v The State of South Australia [2025] SAET 119,
Monahan v Anderson (1960) 61 SR (NSW) 282, cited
Nationwide News Pty Ltd v Rush [2020] FCAFC 115; (2020)
[2020] FCAFC 115; 380 ALR 432, considered
Parkin v Amaca Pty Ltd [2020] WASC 306, cited
Piatti v ACN 000 246 542 Pty Ltd [2019] NSWDDT 7, applied
Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119
Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362, cited
R v Pham [2015] HCA 39; (2015) 256 CLR 550, applied
Reid v Seltsam Pty Ltd [2021] VSC 653, considered
Rogers v Nationwide News Ltd [2003] HCA 52; (2003) 216 CLR 327, cited
Scarf v State of Queensland [1998] QSC 233, considered
Scott v Musial (UK) [1959] 2 QB 429, cited
Seltsam Pty Ltd v Brown [2025] QCA 244, considered
Seltsam Pty Ltd v Reid [2021] VSCA 326, applied
Skelton v Collins [1966] HCA 14; (1966) 115 CLR 94, cited
St Clair v Timtalla Pty Ltd [2010] QSC 296, considered
Stewart v Metro North Hospital and Health Service [2025]; HCA 34; (2025) 99 ALJR 1348, applied
Talbot v Lusby [1995] QSC 143, considered
Teubner v Humble [1963] HCA 11; (1963) 108 CLR 491, cited
Wagner & Ors v Nine Network Australia (2020) 6 QR 64; [2020] QCA 221, considered
Waller v McGrath [2009] QSC 158, considered
Wickham v Treloar (1960) 77 WN (NSW) 350, cited
Workcover v Amaca Pty Ltd [2010] HCA 34; (2010) 241 CLR 420, applied
Wright v British Railway Board [1983] 2 AC 773, cited
ZAB v ZWM [2021] TASSC 64, applied
H Luntz Assessment of Damages for Personal Injury and Death 5th ed Lexis Nexis Australia 2021
[1] Walter Greenall was born 27 December 1933 and died on 1 March 2022. He was 88 years old at the time of his death. His death was a painful and slow one because he had mesothelioma. He contracted the disease because of the negligence of the defendant.
[2] Between 17 January 1972 and 7 April 1972, he was employed by James Hardie & Co Pty Ltd (James Hardie) as a roof fixer in Queensland. During his employment he handled, cut, drilled and worked with asbestos cement building products. As a result, he was exposed to and inhaled asbestos dust and fibre. In consequence, he contracted mesothelioma and died. It is alleged that before his death Walter endured pain, suffering, discomfort and inconvenience; required home personal care and assistance with the aspects of daily living; lost the amenities of life; required medical treatment; required and took medication; had a permanent disability of function of his person and was restricted in his ability to participate in recreational and social activities.
[3] It is accepted by the defendant that the mesothelioma was caused by the negligence of the defendant in failing to provide a safe place of work.
[4] The principal issue in the proceeding is the quantum of general damages. The plaintiff claims $800,000. The defendant submits that $200,000 should be awarded. It is common ground that the Workcover refund of $384,790 must be deducted from the award.
[5] Special damages in the amount of $29,879.30 are admitted.
[6] It is accepted by the parties that by reason of s 66 of the Succession Act 1981 (Qld) this action survives the death of Walter and the plaintiff may claim general damages and damages for loss of expectation of life. [1]
[8] For the reasons which follow, I have come to the following conclusions:
[9] Mr Greenall provided both an affidavit and statutory declaration before his death. He said that he was born on 27 December 1933 in the United Kingdom. He left school at 16.
[10] He described his employment carrying out roofing work. He migrated to Queensland in 1971. In January 1972 he was employed by James Hardie carrying out roofing work. This involved installing asbestos cement corrugated fibre sheets. He handled these items on a daily basis throughout most of each working day. He did not wear a mask when cutting these sheets and was not required to. He was never warned about the dangers of inhaling asbestos dust.
[11] In April 1972 he got a job at Boral making bricks and worked there for about 20 years until he retired in 1992. Up until his diagnosis of mesothelioma he was fit and healthy. He took pride in looking after his garden and doing odd jobs around the house, such as painting and mowing his lawn. He regularly helped his wife Audrey with the housework. He was very active and walked around his neighbourhood for around 45 minutes to an hour each day and he and Audrey enjoyed going to the local leagues and RSL clubs for lunch.
[12] On 9 March 2021, he fell off a ladder whilst cleaning the gutters of his house and was taken to the Ipswich hospital. He was told after an x-ray that he had broken his ribs and there was fluid on the lining of his lung. He was sent for a CT scan of the chest.
[13] On a number of occasions attempts were made to drain the fluid from his lung without success. This was very painful because a large needle was stuck in his back through his lung. He was in hospital for around a week. He was discharged from the hospital and needed further tests. He started to feel short of breath when he walked, particularly on inclines and stairs.
[14] On 28 May 2021 he had another CT scan of his chest and on 22 June 2021 he saw Dr Brown. He was told the fluid in his lungs had increased since he was in the Ipswich Hospital.
[15] On 28 June 2021 he was referred for an urgent PET and CT biopsy. He had the PET scan on 8 July 2021 and the CT guided biopsy on 29 July 2021. Both procedures were very uncomfortable. He was anxious and scared and was worried about his wife and how he would look after her if he was seriously ill.
[16] On 5 August 2021 he attended Ipswich General Hospital to have fluid drained from his lungs. These attempts were unsuccessful and he was in a lot of pain.
[17] On 9 August 2021, he had a video assisted thoracoscopic (VATS) surgery at the PA hospital, but this was aborted, and an indwelling catheter was inserted into his pleura instead. Following the attempted VATS, Walter was in a lot of pain. His shortness of breath increased. He had to take stronger pain killers and found it hard to get comfortable at night. His sleep was disrupted, he felt terrible and was in a lot of physical pain.
[18] On 31 August 2021 he was diagnosed with mesothelioma. He was shocked and devastated by the diagnosis, knowing it was a death sentence. After he was discharged from hospital, his family picked up all of the domestic tasks he previously carried out. He simply could not do them because he did not have a lot of energy and was in too much pain and discomfort. His family looked after the garden and did the dusting, vacuuming and washing. Phil, his son, came to the house every day to make sure he and Audrey took their medication. It made him distressed and guilty that he could not attend to these tasks himself.
[19] In late September 2021, Walter started immunotherapy which had terrible side effects including fatigue, a decreased appetite, change in food taste and night sweats. He continued to have chest pain and shortness of breath. He had two sessions of immunotherapy. One night was spent in hospital to get his system under control and then he was given steroids. Walter then had to take insulin to stabilise his blood sugar.
[20] As at 18 February 2022, he found it hard to walk a short distance or climb stairs. He got breathless when he exerted himself. He needed a walker to help him get around. He was breathless sitting and talking. Anything requiring exertion such as getting in and out of a bed or a chair took great effort. He got breathless when showering and sat down and rested before drying himself. He needed to sit down to dress and pace himself. If he tried to do any housework his shortness of breath got very intense. As a result of his pain and breathlessness he now spent most of the day in his home resting. He had a fall in his bathroom in October 2021 because he was unsteady on his feet. Before the mesothelioma he did not have any such problems and was very fit and active.
[21] In around January 2022, John and Sharon moved into his house as he could no longer look after the house or his wife Audrey. Since then, they did all of the housework and gardening and helped him supervise Audrey. He was told on 13 January 2022 that because of the side effects he would have to stop immunotherapy. He had very little appetite and had lost around 19 kilograms. He used to weigh 80 kilograms and he now weighed 60 kilograms. He found it difficult to drink anything. There was constant pain in the right side of his chest and shoulders. He took Targin but still got pain and had to take Oxycontin. Pain killers had caused him to be constipated.
[22] On 8 January 2022 he was driving his car and his vision went blurry in his right eye. He pulled the car over to the side of the road and called Phil to pick him up. He was originally told that this was due to an eye stroke. As at February 2022, both eyes were affected, and he could see out of his left eye.
[23] On 2 February 2022 people from a palliative care team came to the house to discuss what he needed. He was now bedbound and relied on supplemental oxygen to breathe. He could not do anything; he could not look after himself. He knew what the future held. He was anxious and sad. He was not like this before the diagnosis.
[24] He had been married to Audrey for 65 years and she was the love of his life. They did everything together. In 2019 he started noticing that Audrey was getting forgetful and misplacing items around the house. It was about simple things like peeling vegetables or how to work the oven. There was a risk of fire. He started cooking meals for them and doing more housework as Audrey was forgetful about simple tasks and needed prompting to do things. He drove them everywhere because she stopped driving 10 years prior. He helped her all the time. He took over managing the budget and bank accounts. He had to prompt her to have a shower. He rarely left her at home alone as it was not safe to do so.
[25] In May 2021, a geriatrician diagnosed her with Alzheimer's disease. This was a shock as he was going through his own health issues at the time and he was very concerned about caring for Audrey. If he had not fallen ill with mesothelioma he would have continued to look after Audrey on a full-time basis for as long as possible. He was extremely worried about what would happen to her when he was gone. He said "I feel like mesothelioma has taken away from me all parts of my life that I found enjoyable. I am constantly in pain, I feel sick and tired all the time. Everything is an effort. Thinking about what I am going to miss out on because of my mesothelioma condition causes me to feel incredibly angry and upset."[2]
[26] Mr Philip Greenall gave evidence that Walter was a roofer and machine operator and retired in 1998 at the age of 65. He used to see his father every week on Sundays. Walter was an outgoing man who had a good relationship with his wife. His hobbies included being a handyman, mowing and gardening. A number of photographs were tendered through him.
[27] He first became aware that Walter was suffering mesothelioma in March 2021. Walter had wanted to live to 100 years of age, and the diagnosis was a shock to him. He had two immunotherapies, and the fluid was drained from him. The immunotherapy played havoc with his body. John and Sharon looked after him. At one point Philip went to the house every day. He mowed the yard because Walter could no longer mow. At one stage Walter cried. Before his illness, the house and garden were immaculate. John and Sharon helped Walter with his personal care and Audrey with her Alzheimer's. Walter had assisted Audrey with her Alzheimer's by vacuuming, taking the washing out and cooking. They also shopped together. He was worried about what would happen to her. Walter went into hospice care on 22 February 2022 and died a short time later.
[28] In cross examination, Philip said that whilst Walter could do some activities between March 2021 and August 2021, he had breathing problems. He also moved with distress. After August 2021 he could not do things himself and could not walk or exercise. There was discomfort. He was still driving but not daily. It ended up that his father could not cook, and they used frozen meals in the microwave. He attempted to do chores, but he was out of breath. He said that Friday date nights with Audrey finished after the fall off the roof in March. He deteriorated after the fall from the roof.
[29] Sharon Greenall is Walter's daughter in law. They were close. They used to spend family holidays together. After he fell off the roof he was diagnosed with mesothelioma. Prior to the diagnosis, Walter was very active by walking, gardening, and painting. He would do the household tasks. His hobbies included bus tours, get-togethers and he was very social. After his diagnosis Sharon saw him every week. He asked them to move in around August/September 2021. By this stage, he had lost a lot of weight and was very emotional and concerned about what would happen to his wife. He was also worried that he would not live to 100. He asked for her to promise to look after Audrey. He cried a lot. He could not mow the lawn and/or do things around the house. They assisted with his medication, chemists, vacuuming etc. They tried to get him to eat but he had no appetite. She and John moved in with Walter and Audrey in January 2022 to help him. He was sad and thought he had let his wife down. After they moved in, he was very frail, and he was wetting the bed because he could not get to the toilet. John and the granddaughter bathed him and changed him. He was in his pyjamas 24 hours a day before he went into the hospice. He would just lay on his bed lethargically with difficulties breathing, no appetite and no body strength. They also visited him every day at the hospice but there was no communication. He was there seven days before he died. He wanted to come home and he was scared.
[30] In cross examination, Sharon agreed that in the period March 2021 until August 2021 Walter could bathe himself, but he could not push the mower after the rib fractures. They bought a self-propelled one, but he could not push it. Sharon and John had to mow the lawn.
[31] After his fall she was unsure if he could do the housework. He could walk short distances, for example from the lounge room to the bedroom. He could not do 45-minute walks.
[32] Walter could not walk in August 2021. She had difficulty remembering the specific dates. She confirmed that as at September 2021 he was eating frozen meals. He could only do minor household chores such as vacuuming and washing the dishes. She had no recollection of any fall in the toilet but agreed that he deteriorated later in 2021. In re-examination, she said he had difficulties vacuuming because he ran out of breath and also difficulties hanging out the washing.
[33] John Greenall, the son of Walter, confirmed that Walter retired in 1998 at the age of 65. Before his diagnosis, Walter was very active in retirement, going on bus trips to clubs and friend's places. They also travelled overseas. Because John was working as a FIFO worker he would see Walter every second weekend. Walter was a very generous person with his time and family. Audrey and Walter were meant to be a couple. Walter worked in the garden, painted the house and loved mowing the lawn. He also went on walks around the neighbourhood.
[34] After Walter fractured his ribs in March 2021, John became aware of the mesothelioma. Walter had wanted to live to 100. After this, Phil drove Walter to appointments (sometimes his granddaughter Maddie did this). At one stage fluid was drained from him and he had a hole in his back. Walter tried to hide the pain. Over the course of 2021 he lost weight and would cry. He also confirmed that Audrey had Alzheimer's symptoms.
[35] In January 2022, John and Sharon moved into the house and John stopped work. At that stage Walter could not care for Audrey. Sharon and John took over the washing, the showering, medication, and mowing. Walter hated the loss of independence. At one point they had to put a chair in the shower. Even water from the shower caused Walter pain. Up until his going into the hospice they did his care and toileting. He would also urinate on the floor and ultimately, he lost his voice.
[36] In cross examination it became evident that John was not clear on the dates. He had no recollection of any fall in a toilet. He was of the opinion that after the rib fractures in March 2021, Walter struggled with tasks such as bathing himself. After the fall in March, he did not mow the lawn and tried using the self-propelled mower once. He only was able to do one lap. After the fractured ribs there was a lack of breath and fatigue. John was of the opinion that he could only walk short distances and could not do housework after March 2021. Before the fall he was a regular walker.
[37] John accepted that he visited Walter every second week up until they moved into their home in January 2022. He confirmed that he saw Walter using frozen meals. He accepted that Walter was able to pay bills and manage money until after they become powers of attorney. At no stage as at September 2021 did Walter enjoy date nights. As far as John was concerned, Walter was sick from March 2021 until March 2022, although he did deteriorate later on in 2021.
[38] Dr Pretoria Bilinsky is a medical oncologist and palliative care physician and has provided a report dated 29 November 2021. Walter had a malignant pleural sarcomatoid mesothelioma. He presented to the Ipswich Hospital following a fall from his roof in March 2021. The chest x-ray showed a right pleural based opacity. These changes progressed when he was reviewed by a respiratory physician on 22 June 2021. A PET/CT scan conducted on 8 July 2021 showed extensive right pleural thickening with invasion of nodules into the chest wall. His cancer was stage four.
[39] Walter underwent a biopsy on 29 July 2021 and confirmatory tests were conducted. The final diagnosis was malignant mesothelioma. It was the most aggressive type of cancer and in its worst stage.
[40] On clinical examination, Walter was weak and frail, he had lost weight and conditioning and had low oxygen saturation. On examination on 29 November 2021, he was unable to stand from a seated position without effort. He had his first fall in October 2021. A geriatrician reported on 15 September 2021 that he was independent with his mobility, and he was the carer for his wife who had a diagnosis of Alzheimer's disease, but he had deteriorated since that review. His weight was 60 kilograms. Six months prior he weighed 80 kilograms. The doctor believed his mesothelioma was due to occupational asbestos exposure. It was recommended he see his GP and a medical oncologist for immunotherapy regularly. He should also be seen by a palliative care specialist as he may require palliative radiotherapy for pain control. Walter was likely to need home services for household chores and carers to look after his wife. He was no longer able to perform those tasks and he was too deconditioned to drive. His life expectancy at the time of review was three months at best.
[41] In a report dated 7 February 2022, Dr Bilinski indicated that malignant mesothelioma is universally fatal. Walter was already hypoxic at the time of examination on 29 November 2021. He was likely to suffer increasing breathlessness or dyspnoea as a result of the progression of the pleural thickening and production of malignant pleural fluid. He may require drainage. He may require oxygen and prescriptions. He would likely suffer pain and fatigue. The pain would impact on his psychological wellbeing, reduce his overall quality of life, and increase depression and anxiety. The symptoms would lead to night sweats and fevers which would affect sleep and lead to extreme fatigue. He could also develop further metastases. These were evident on the PET/CT scan. He would most likely die of pneumonia, and he may die of anorexia. Patients with malignant mesothelioma deal with added psychological distress over and above that of other patients dying from terminal cancer.
[42] In a further report dated 17 February 2022, Dr Bilinski noted that Walter was bed bound and had been since Monday 7 February 2022. He was anorexic and had pain. He was struggling to swallow medication. He spent all of his time in bed sleeping with very little food intake. He was using supplemental oxygen. He had difficulties seeing. He could not watch tv or read. His life expectancy was one to two weeks at best.
[43] Dr Bilinski in her evidence confirmed that Walter suffered sarcomatiod mesothelioma. This is the more aggressive type of mesothelioma which spreads rapidly. The median survival rate is 3.5 months to eight months. She agreed that up until the diagnosis Walter was able to do daily activities. The symptoms he would have suffered were fluid on the lungs, shortness of breath and pain. She agreed that the fall from the roof where he fractured his ribs in March 2021 led to the discovery of the condition. Between March 2021 and August 2021, he was able to bathe, dress and climb stairs. He did however start to lose weight and became frail. However, during this period he was still mobile and could care for himself. He did however start to become more deconditioned. Mowing the lawn would take him a lot longer. He could walk short distances but would have suffered shortness of breath. The doctor explained the ECOG levels as at 23 June 2021 when he was ECOG 0. On 10 August 2021 there was a step down in functioning (ECOG 1) and he was having symptoms although could still do some home duties. The diagnosis was on 31 August 2021. As at 3 September 2021 he was still ECOG 1. He was taking Targin and Endone which are both strong opioids. She explained that there was a dose increase on 22 September 2021 because of a step up in pain. The ECOG became two on 26 September 2021. There was the fall in the bathroom in October 2021 which was a significant event. He had become more frail. By November he could not stand up from a seated position without assistance because he was losing muscle strength. She would have stopped him driving a car at that stage. He would have needed assistance in the bathroom.
[44] Walter certainly deteriorated after the fall in October 2021. She explained that he would have suffered pain from the tubes put into his body in the period 22 June 2021 until 29 July 2021. By November he was suffering pain, he had lost 20 kilograms in weight, he was hypoxic, and he could not stand without assistance. She did not know how he could drive.
[45] She was not able to comment on his level of psychological distress.
[46] In re-examination, Dr Bilinski said that Walter would have started suffering increasing shortness of breath after March 2021. She said the bone metastases and the chest wall involvement caused a lot of pain which led to the use of Targin. The prescription of Targin and Endone on 25 August 2021 was for chest pain. She also explained the side effects of immunotherapy. Walter only had two cycles of this treatment because he had a low platelet count.
[47] Dr Wong in her report listed a number of alleged co-morbidities.[3] She noted that as at 15 September 2021, Walter continued with self-management of medications, paid his bills, did household chores, shopped, did crossword puzzles, drove, mowed and had Friday night dates with Audrey. He denied issues of memory, communication, organisation or sleep. His primary frustration was pain after the multiple ICC and VAT attempts.
[48] I note that, despite this report, the medical records show that:
(a) On 9 March 2021, the right pleural thickening was seen.
(b) On 29 May 2021, a CT scan noted the thickening was now large and more invasive.
(c) On 6 July 2021, Walter told the doctor he had asbestosis on his lungs and had a dry cough although breathing was OK. He had a numb right sided chest.
(d) On 8 July 2021, a PET scan showed it was protruding into the axilla which was intensely avid. There was a moderate sized right pleural effusion.
(e) On 19 July 2021 it was noted there was reduced air entry and recurrent chest pain. The reduced air entry was on the right side. He gets breathless on any exertion.
(f) On 21 July 2021 Walter said he could only walk a short distance - three yards. It was noted in the annual health assessment that he had assistance with home maintenance from the family. It was noted he had shortness of breath climbing stairs, is rushed, and shortness of breath from walking 100 metres. He had lost 5 kilograms in the last six months.
(g) On 29 July 2021, the CT guided biopsy occurred. The right pleural thickening and effusion was more prominent than in March 2021.
(h) On 5 August 2021, there was an attempted ICC insertion. It was aborted as the wire had kinked because of the very thick material in the pleural space.
(i) On 6 August 2021 he was referred for surgical management of his pleural effusion as he had shortness of breath on effusion.
(j) On 9 August 2021 he was admitted for an attempted VATS procedure. The dense pleural thickening did not allow this. The thickening in the lung had progressed over the previous three months. An ICC was inserted. He described pain in his back and he had not been sleeping for weeks. He was 70.5 kilograms. He was getting breathless with exertion. He was given a script for Targin and Endone.
(k) On 10 August 2021, the right ICC was removed.
(l) On 13 August 2021, the drainage sites were examined.
(m) On 17 August 2021, the drainage sites were still tender.
(n) On 23 August 2021 Walter had a significant diffuse thickened nodular pleura. It was hard to sleep and he had back pain.
(o) On 24 August 2021 he told the doctor he needed support to manage. Philip had been helping a lot. Despite this, he declined assistance from My Aged Care.
[49] Also, a My Aged Care report was generated on 3 September 2021. This report notes:
(a) Walter drives but if unwell his son takes him to appointments.
(b) He struggles to manage the housework due to shortness of breath.
(c) He is now unable to mow safely because of breathing difficulties.
(d) His son assists when he can fit this in.
(e) Walters said he was not as steady as he used to be. He occasionally grabbed rails for stability.
(f) His breathing affects his stamina (for walking).
(g) He could shower and get up from a chair.
(a) Poor breathing capacity and stamina from asbestosis makes maintaining his house and garden difficult.
(b) At times he cannot drive to medical appointments.
[51] As at 23 August 2021, it was noted that Walter needed a health care package because of health concerns and recent falls.
[52] Despite all of this, on 24 August 2021 he said he did not need any help. I thought that was an example of Walter's stoicism as were his statements to Dr Wong.
[53] I also note in Dr Sahayanathan's report dated 26 August 2021, Walter had lost eight kilograms in the previous six months.
[54] Dr Kieren Brown in a report dated 23 June 2021 noted some other conditions but noted an increasingly moderate right sided pleural effusion. The changes were very suspicious for mesothelioma. Whilst he was otherwise fit and well, Walter had ongoing chest wall pain (from the trauma) and there appeared to be chest wall invasion of one particularly prominent hyperdense nodule which was potentially a source of ongoing pain. He felt well then. He was downbeat when told of the likely significant pleurally-based malignancy.
[55] An occupational therapy report by Natala Cogger is dated 21 December 2021. Walter was 87. Prior to the presentation of his symptoms, he lived with his wife in their own home and was independent in personal, domestic, and gardening activities of daily living. He was his wife's carer. He enjoyed going to league and RSL clubs for lunch with his wife and he would walk regularly. As a result of his diagnosis, he now experienced shortness of breath, fatigue, and pain. He managed personal care tasks but with pacing and sitting down. His level of fatigue increased by the end of the day. His breathlessness was very intense after making the bed and vacuuming for 45 seconds. He required supervision and assistance with personal care, in meal preparation, floor and bathroom cleaning, laundry tasks, changing bed linen, shopping, lawn, and garden maintenance.
[56] In her second report dated 23 February 2022, Ms Cogger reviewed Ms White's report.[5] Ms White had alleged that Walter had a stroke in January 2022. This in fact was not correct. Ms Cogger respectfully disagreed with Ms White's view that care considerations only occurred since the stroke. She rejected Ms White's comment that his cognitive decline might be due to early dementia. This could also be attributed to the medication that he was on. The burden placed on him with dealing with the end of life cycle and the uncertainty would have contributed to impaired cognition. With respect to Ms White's opinion that Audrey did not require any assistance with personal care, Ms Cogger respectfully disagreed with this because Walter was providing Audrey with assistance prior to the diagnosis of mesothelioma. Ms White's opinion is not consistent with the history from the family. Also, Ms White has not conducted any form of cognitive assessment. Ms White's recommendations do not appear consistent with her own observations or in accordance with medical opinion.
[57] Ms Cogger also provided a response to Dr Wong's report and noted that care for Audrey would be needed constantly. She noted that John had reported that Walter had been admitted to the Ipswich Hospice on 22 February 2022. Prior to this he had been living at the home with Audrey, John and Sharon caring for him. Whilst caring for Walter they have also been able to supervise and support Audrey.
[58] Dr John Farrah is an ophthalmologist and provided a report dated 10 February 2022. Dr Farrah noted that Walter presented on 11 January 2022 with double vision. He had right sided sixth nerve palsy at the time. It was possible that small deposits from the mesothelioma was the cause.
[59] This was confirmed by Dr Bilinski in a report dated 11 February 2022. She said that on the balance of probabilities, his symptoms were most likely due to the mesothelioma and the treatment of it.
[60] Ms Anne White is an occupational therapist engaged by the defendant. Ms White has provided a report dated 9 February 2022. She assessed Mr and Mrs Greenall on 19 January 2022. It was noted that Walter demonstrated very poor balance when transferring off the recliner chair and when changing his walking direction inside the home. There was a significant cognitive decline over the past three months. It was noted that his wife had been diagnosed with dementia in May 2021. His son and daughter in law moved into the home on 8 January 2022. Prior to his mesothelioma diagnosis, Walter shared a number of domestic chores with his wife. Following his rib fractures in March 2021 he continued to undertake the usual domestic tasks with pacing. He reportedly continued to drive and attend his general practitioner until his stroke in January 2022. Since then, it had a significant impact on his right eye vision and balance, and he was unable to assist with indoor or outdoor domestic chores and could not drive. He reported he had poor balance and impaired vision. His symptoms caused significant drowsiness and fatigue. It was Ms White's opinion that in the absence of mesothelioma, Walter would ordinarily have required assistance with a number of tasks due to the right eye condition and impaired balance. When she conducted the home assessment, he remained independent. However, as a result of the deterioration of his mesothelioma since early February 2022 he relied on his wife for food and drink preparation and for assistance with showering, dressing and toileting. She said that there would be active care of three hours a day and inactive care of 11 hours a day. When there was complete dependence, he would be admitted to a hospice palliative care unit. It was opined that before his stroke in January 2022, his mesothelioma had not prevented him from providing practical support, including domestic chores in the home, driving his wife to community outings and assisting her. Since February 2022 family members had taken over his share of indoor and outdoor domestic tasks.
[61] In her supplementary report dated 23 February 2022, Ms White also considered further material. Ms White had been informed that she was incorrect where she claimed Walter had suffered a stroke in January 2022. She stated that in her opinion, in the absence of his mesothelioma, he was particularly well for an 88-year-old man and was independent with all domestic tasks in the home and was capable of assisting his wife with physical tasks. During her home assessment in January 2022, Philip reported concern as to Walter's cognitive decline since approximately October 2021. Audrey reported that, due to her orthopaedic condition, she experienced difficulty changing bed linen, vacuuming and mopping, hanging clothes on the line and cleaning the shower and toilet. She ceased driving. Walter provided her assistance by changing the bed linen, vacuuming and mopping and hanging clothes on the line. He was also the driver.
[62] It was Ms White's assessment that he spent about 2.1 hours per week contributing domestically, excluding the driving.
[63] Up until the visual impairment and balance issues in early 2022, Walter continued to undertake his share of domestic responsibilities in the home, although he paced these.
[64] Since his visual impairment and imbalance issues, Walter has relied on family members to drive him, to help with the garden, shopping, vacuuming and mopping, bathroom and toilet cleaning and changing the bed linen.
[65] It was Ms White's opinion that Audrey required physical assistance with the use of preprepared meals, transport and community tasks. Audrey presently had moderately severe Alzheimer's disease. Her abilities would gradually decline and ultimately, she would require institutional residential care. This is likely in about three years.
[66] In a file note dated 28 November 2025, Ms White was interviewed by Mr Holyoak and Mr Gillam. Prior to the fall in March 2021, Walter was totally independent in all domestic and personal care tasks. Following the rib fractures, he undertook his usual domestic tasks with pacing as required. He remained independent with driving and completed shopping. He said he returned to lawn mowing but needed to pace this due to breathlessness in September/October 2021. He purchased a self-propelled mower in mid-December 2021 which reduced the frequency of breaks. Philip reported that family members occasionally mowed the lawn. Walter had difficulty completing the mowing without pacing. Walter said he remained independent with domestic and personal care tasks until the first week of January 2022. Although he used the lawn mower until around February 2022, the family tended to the lawn out of concern for Walter's condition. Ms White alleged she was told by his family that he suffered a stroke in January 2022 and lost vision in his eye whilst driving. Whether or not he suffered a stroke was beyond her experience. Because of his poor balance and impaired vision after the incident in January 2022, although he remained independent in personal care tasks, he would have required supervision, assistance when transferring, mobilising and setting up showering and dressing tasks. His cancer progressed rapidly and by 7 February 2022 he spent most of the day in the bedroom and would have required assistance with all personal and domestic care tasks. With respect to the period March 2021 until early January 2022, Ms White said that they needed to be guided by family "records" and from early January 2022 until 7 February 2022, Walter needed to be supervised and assisted 14 hours of a day. This continued until his admission to palliative care. She disagreed with some of the comments made by Ms Cogger.
[67] Dr Champa Ranasinghe, Audrey's treating geriatrician, provided a report dated 19 November 2021. Audrey was assessed on 26 May 2021 for concerns regarding cognitive and functional decline. She had difficulty cooking unsupervised and was forgetting daily tasks, needing prompting from Walter and was misplacing items. A CT scan of the brain showed mild cerebral atrophy and evidence of small basal ischemia. The relevant universal dementia assessment scale was 22/30 with deficits in recall, language, judgement, and visuo-spatial drawing. Alzheimer's dementia was diagnosed. On review on 17 November 2021, she remained independent in personal activities of daily living such as toileting, showering, dressing, and grooming. Audrey was independent with mobility without mobility aids and did not report any falls. Walter needed regular medication and hospital admissions. Audrey needed a degree of supervision and prompting. Her life expectancy was between three to eight years.
[68] Dr David Wong is a geriatrician and neurologist and provided a report dated 14 February 2022. In this report, Dr Wong reviewed Walter's wife and family members on 29 January 2022. He then conducted a phone review. Following Mr Greenall's fall in March 2021, Audrey's family have assisted with her ADL's[6] that Mr Greenall had been assisting with, such as hanging and taking down clothes, cleaning, garden care, transport and grocery assistance. He agreed with the diagnosis of Alzheimer's disease which was moderate. Her prognosis was between 2.8 to 5.7 years. Dr Wong expected her trajectory to decline both cognitively and functionally. With respect to her current care needs, she needs a 24-hour home care support package which includes up to eight hours active care daily. He estimated for the period 1 March 2022 to 26 November 2024, whilst in the community, the costs of replacement care that Walter was providing to his wife was in the sum of $814,930. The total cost of care needs and caregiver support for Audrey's projected life expectancy is expected to be $869,033.[7]
[69] The plaintiff in its submissions sets out the pain and suffering and loss of amenities of life and relies on the evidence of Walter, his family and the supporting medical evidence. It is submitted that Walter suffered a significant amount of stress and in consequence, the loss of his ability to care for his wife. He was worried about what would happen to her after he was gone.
[70] The plaintiff notes that Audrey was diagnosed with Alzheimer's disease in May 2021 and Walter was very concerned about this. Audrey had started to forget things and Walter looked after her. If he had not fallen ill with the mesothelioma, he would have continued to look after her on a full-time basis.
[71] It is submitted that Walter suffered a significant amount of distress, particularly in consequence of not being able to look after Audrey. He was worried about what would happen to her after he was gone.
[72] The defence has prepared a chronology of events to which I have had regard. It is submitted that, on the evidence, there was only a mild impairment from March 2021 until 31 August 2021. It is submitted the deterioration in the condition occurred after the fall in October 2021. It is submitted that the pain and suffering should really be assessed for a confined period from mid-September 2021 until March 2022. The defendant also relies on the alleged co-morbidities listed in the report of Dr Emily Wong. It is accepted it is for the defendant to disentangle any pre-existing conditions. It is submitted that the evidence does not rise to the level of being able to suggest that less than five years of life expectancy would have been reached, although there might be a chance. It is also suggested that the plaintiff has not proved that any pain was not due to the broken ribs.
[73] The defendant then refers to the oral evidence and I have regard to those submissions. Ultimately, it is submitted that the plaintiff's age of 88 at the time of death is a significant limiting factor on the award of damages. Without limiting the significant deterioration, pain and suffering, and loss of amenities of life, it was essentially confined to a period of about six months.
[74] Overall, I prefer the plaintiff's submissions. When I compare the reports of Ms Cogger and Ms White, I prefer the evidence of Ms Cogger. I found her evidence more consistent with the evidence given by family members. Additionally, Ms White relied on the false premise that Walter had suffered a stroke in January 2022. In my opinion, this would have significantly coloured her opinion about the effect of this stroke on his symptomatology from January 2022. I also thought Ms White exaggerated the effects of the alleged co-morbidities. In all of the circumstances I prefer the evidence of Ms Cogger.
[75] As to these alleged co-morbidities, I am not satisfied that the defendant has discharged the onus of disentanglement. I do not consider they play much of a role in the assessment in this case. I accept Walter's life expectancy was reduced by a little over five years because of the negligence of the defendant.
[76] I accept the evidence given by Walter in his affidavit and statutory declaration. I consider the evidence is supported by Dr Bilinski and by Walter's family members and I accept their evidence.
[77] There is no doubt that Walter suffered the fall in March of 2021 and the fluid on his lung was discovered. I formed the view on the evidence that he started becoming short of breath and started suffering symptoms after that time. There was also the pain and suffering of undergoing treatment. There was the worry of knowing of the existence of this fluid and of the diagnosis. He would have been sick with worry.
[78] When diagnosed with the mesothelioma, it would have been like finding out he was subject to a death sentence. This would have caused considerable distress to him for himself but also worry as to who was going to care for his wife.
[79] I accept the evidence that the symptoms were worsening, and they had an effect on his daily activities and gardening. Up until October of 2021 he was attempting these but was becoming worse at it. Ultimately, I accept the evidence that things rapidly deteriorated after the fall on 6 October 2021. But prior to this he was having symptomology which necessitated the prescription of opioid medications to control the pain.
[80] He was rapidly losing weight. He was short of breath. It was like drowning in his own fluid. It was a horrible death.
[81] Things went downhill such that by February 2022 he was bedbound and could barely breathe. He was ultimately placed in the hospice and died a short time later.
[82] With respect to the report of Dr Emily Wong, I tend to think Walter was a person who downplayed his symptomology. He was a stoic man. Where there is inconsistency between Dr Wong's report and the aged care report and evidence from the family, I prefer the evidence from the family and that contained in the aged care report.
ISSUE 2: GENERAL PRINCIPLES AS TO THE ASSESSMENT OF GENERAL DAMAGES
[83] It is submitted that the general rule is that damages in tort put the injured party, so far as money will do, in the same position as if he or she would be in had the tort not been committed. General damages are awarded to a plaintiff who has suffered personal injury in recompense for the pain, suffering, and loss of amenities of life suffered by the plaintiff. This includes a component for mental distress even if it is not a recognised psychiatric condition. The assessment of damages must be proportionate to the situation of a claimant party and not resolved by reference to some norm or standard. Modern society places a higher value on the loss of enjoyment of life and compensation of pain and suffering than was the case in the past. It is submitted that special treatment is afforded to victims of dust related conditions by reason of the exclusion in the Workers Compensation and Rehabilitation Act 2003 (Qld) (WCRA).
[84] It is accepted that the basic principle of the assessment of damages is to put the injured party, so far as money can do, in the same position as if the tort had not been committed.
[85] The defendant points out that the unusual feature of this case is that Walter has died. To a degree, this is inconsistent with the proposition that general damages provide a plaintiff with consolation.[8] It is stressed that the assessment of the award of general damages can only be made as to the past and not to the future.
[86] The defendant relies on Planet Fisheries Pty Ltd v La Rosa,[9] referring to the principle of proportionality in the award of damages. Care should be taken in assessing comparable decisions. The types of matters for which a person is entitled to recover damages include pain and suffering, discomfort, inconvenience, loss of independence and curtailment of life.[10] It is pointed out that the following factors are relevant:
(a) The age of the plaintiff. In this case, he was 88 with a life expectancy of 5.28 years.
(b) An elderly plaintiff with fewer years should receive less than a younger plaintiff who would have experienced many painful years.
(c) The circumstances in which the loss occurred.
(d) The hobbies and other amenities of the plaintiff.
(e) Any relevant comorbidities.
[87] It is submitted that Planet Fisheries does not prevent a trial judge from comparing cases and verdicts. A trial judge is expected to draw on his or her experience in settling on the correct figure. It is important that he or she does not allow oneself to be overborne by what other minds have judged for other situations.[11]
[88] It is be accepted that the general rule is that damages in tort are such that the injured party should receive compensation in a sum which, so far as money can do, put that party in the same position as he or she would be in had the tort not been committed.[12]
[89] General damages are awarded to a plaintiff who has suffered personal injury and recompense for the pain, suffering and loss of amenities of life suffered by the plaintiff.[13]
[91] The loss of amenities of life is concerned with the deprivation of the ability to participate in normal activities and enjoy life to the full.[16]
[92] It has been said that pain and suffering and loss of amenities is a loss not susceptible of measurement in money.[17] Difficult issues are raised as to how one values pain and loss in a monetary sense. But despite this difficulty, the High Court in Planet Fisheries v La Rosa[18] said that the assessment of these damages must be proportionate to the situation of the plaintiff and not of other parties and other actions and the assessment is not to be resolved by reference to some norm or standard derived from a consideration of the other cases but the product of the general experience of the trial judge, although the other comparable cases are not to be ignored as a matter of "fairness and moderation".
[93] The general experience of the trial judge involves making an assessment which is not capricious or arbitrary but upon general experience based on "general awareness."[19]
[94] In Carson v John Fairfax & Sons Ltd,[20] it was said that it is appropriate in a general sense to have regard to awards in comparable cases to ensure that the individual award is reasonably proportionate to awards given in other cases.
[95] The Victorian Court of Appeal in Lapetina v Elgee Park Pty Ltd[21] noted that whilst other awards do not operate as precedents, a trial judge will be aware of these and may give weight to "current general ideas of fairness and moderation."
[96] For example, in Bilson v Vatsonic Communications Pty Ltd[22] the Queensland Court of Appeal, in assessing general damages, had regard to the comparable decisions relied on by both parties keeping in mind that which was stated by the High Court in Planet Fisheries.
[97] Another aspect to bear in mind is that contemporary society pays and receives vastly greater amounts of remuneration than a generation ago and speaks of the importance of the quality of life to an extent not before contemplated. It may be said that modern society places a higher value on the loss of enjoyment of life and the compensation of pain and suffering than was the case in the past.[23]
[98] It is submitted that the only previous awards for general damages concerning mesothelioma in Queensland are:
[99] It is submitted that jury awards may be regarded in assessing the level of general damages as civil juries bring the community's perspective to an assessment of the value appropriate.
[100] It is submitted that a court should be cautious about putting too much weight upon a jury verdict as setting a standard for the assessment of damages.[26] A jury's verdict cannot be scrutinized in the same way as a judge made decision.
[102] Certainly, in Victoria, regard has been had to awards made by juries when assessing general damages.
[103] In Amaca Pty Ltd v King[28] the 62 year old plaintiff had contracted mesothelioma working for James Hardie. He ceased work in November 2010 after being diagnosed. He had no more than nine months to live from August 2011. The jury awarded $730,000 for general damages. The defendant appealed claiming the damages were excessive. The court held the award was not excessive. The following is of note:
(a) The court had regard to interstate decisions ([175]-[177]).
(b) It noted that one of those was 20 years old and contemporary society pays and receives vastly greater amounts of remuneration than a generation ago. 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 ([177]).
(c) Although the sum of $730,000 was high, it appeared to be in accordance with other jury cases ([179]).
(d) Over the past 20 years damages had increased, not only in personal injury cases but in other cases as well. The court had regard to $600,000 awarded in a defamation case ([180]).
(e) The court should have regard to verdicts in defamation cases ([181-182]).
[104] Likewise, in Seltsam Pty Ltd v Reid[29] the Victorian Court of Appeal was concerned with a case where a judge had awarded $580,000 for damages in a mesothelioma case together with $20,000 for loss of life expectancy. The trial judge had referred to jury assessments in reaching her decision.[30] It was rejected that the trial judge gave undue weight to the jury verdicts. The Court found no error where the trial judge noted that civil juries bring community perspectives to an assessment of what value is proportionate in cases they determine and that in Victoria, a judge may have regard to the value the wider community places on pain and suffering as reflected in jury verdicts.
[105] In Footscray Football Club Ltd v Kneale,[31] a case involving historical child abuse, the jury had awarded $3.25m in general damages to a plaintiff. The Victorian Court of Appeal set aside the award instead assessing $850,000. The Court relied on both judge only and jury awards in assessing this amount.
[106] By analogy, regard has been had to jury awards in defamation cases. For example, in Chakravarti v Advertiser Newspapers Ltd[32] the Full Court of the South Australian Supreme Court held that whilst they were cautious in putting too much weight on a jury verdict, they were influenced by the decisions.
[107] Kirby P in Clarence Colliery Pty Ltd v Bunkovic[33] noted when considering an award of damages by a jury, that:
(a) It was a comparatively recent development that judges alone assessed damages.
(b) There was a danger in judges alone assessing damages as this is based on a limited range of recollected experience.
(c) Laypeople draw more upon their experience of the world and range of human endeavours.
(d) The facility of jury assessments is a healthy corrective to assessments by judges only. It allows a court to assess undue parsimony on the one hand and undue extravagance on the other.
[108] In the United Kingdom, a similar approach has been taken. For example, in Bocok v Enfield Rolling Mills Ltd (UK)[34] the Court of Appeal noted that a judge sitting by himself is not in as good a position as a jury to assess damages, as twelve heads are better than one.[35] In Scott v Musial,__[36] Morris LJ noted in a case considering an appeal against a jury award for general damages that the task of the court was to consider whether the award was out of all proportion to the circumstances and the case and that the views of juries may form a valuable correction to the views of judges.
[109] Scott has been followed in Australia[37] and it was referred to by the High Court in Precision Plastics Pty Ltd v Demir.[38] It was also said in Demir that an appellate court will interfere with a jury assessment when it arrives at the conclusion that the damages are so large or so small as to be unreasonable i.e. out of all proportion to the case.
[110] It is true, as the defendant submits, that a jury verdict is inscrutable, but that does not mean it is not comparable. Although it is true that whilst the Queensland Parliament abolished jury verdicts in 1962, it does not follow that jury verdicts are irrelevant.
[111] Juries are drawn from the members of the community who are electors.[39] A jury of four has four times more experience of pain and loss and of the value of money. It is to be expected that many experience pressures with the cost of living and the cost of housing. They themselves may have been ill or have had relatives who have been ill. They reflect modern society. I consider that a consideration of jury verdicts should inform the court as to the level of damages the community considers appropriate.
[112] Having said this, as I later go to consider, it may be thought that the awards in both in Martin v Amaca Pty Ltd and Brown v Seltsam Pty Ltd are of a level well above those awarded by the DDT, the specialist New South Wales Tribunal which deals with mesothelioma cases.
[113] But I accept the plaintiff's submissions that I should have regard to the two jury decisions in assessing damages in this matter. They do tend to suggest that the amount for which the defendant contends does not reflect the level of damages the community considers appropriate.
[114] It is submitted by the plaintiff that it is permissible to have regard to appropriate awards in cases in other jurisdictions.[40]
[115] It is further submitted that the assessment of damages in Australia is to be governed by the common law because there is one common law for Australia.[41]
[116] It is further submitted by the plaintiff that there is no basis for general damages at common law to be assessed lower in a Queensland court. This is because:
(a) This would ignore the existence of the one common law of Australia.
(b) The awards relied on by the defendant are dated and cannot be said to reflect modern values.
(c) The fact that Queensland awards for catastrophic injuries are on par with general damages for mesothelioma in the New South Wales DDT.
[117] It is submitted that in comparing the awards, awards in the other States have increased slowly and incrementally, whereas in Queensland there has been a limited number of cases. It is submitted the Queensland decisions relied on by the defendant are of limited assistance. It is also pointed out that awards for general damages at common law are vastly higher than the awards assessed by reference to an ISV.[42]
[118] It is submitted the New South Wales approach sets a standard which does not prevail in Queensland. References to New South Wales assessments ought to be of little weight in Queensland.
[119] Awards of damages for personal injuries have traditionally been higher in New South Wales and Victoria. The role of the court is to assess the community standards in Queensland, reflecting local variations within the state. It is submitted that Amaca Pty Ltd v Werfel[43] is authority for the proposition that:
(a) It is permissible to have appreciation of awards in comparable cases.
(b) Interstate awards are not relevant, but the award must be made having regard to the damages awarded in the States.
(c) There needs to be an approach of consistency within the State.
(d) Regard can be had to both first instance decisions and appellate decisions.
(e) Caution should be applied when considering the DDT decisions.
[120] In Werfel, an award of $400,000 for pain and suffering for mesothelioma was set aside and reassessed at $280,000.
[121] It is submitted the approach in Werfel gives appropriate direction to a judge in Queensland and should be followed. Awards given by the DDT must be treated with extreme caution.
[122] There is one common law in Australia. In Kable v Director of Public Prosecutions [44] the High Court held that, unlike the United States of America where there is a common law for each State, Australia has a unified common law which applies in every State.
[123] In Lipohar v R[45] Gaudron, Gummow and Hayne JJ cautioned against the suggestion that there is a common law of individual States within Australia.
[124] The High Court, even before the uniform defamation laws were introduced, noted the importance of certainty and predictability in the application of the common law across Australia.[46]
[125] This has been picked up in the criminal jurisdiction. In Hili v R [47] the High Court noted (in connection with federal sentencing) of the need for sentencing consistency across the country and for courts to follow intermediate appellate court decisions of other States and Territories unless they are plainly wrong.
[126] It was further explained in R v Pham[48] that a federal offence is an offence against the Australian community. The criminal justice system functions as a system which is intended to be fair and this necessitates reasonable consistency.
[127] Of course, that case relates to federal law but absent any statute altering the common law position in a particular State, it is hard to see how it can be justified that there should be a markedly different approach across the States concerning the assessment of damages where the law is the same.
[128] I have already noted that the Victorian Court of Appeal in Amaca Pty Ltd v King[49] had regard to interstate cases in reaching its decision.
[129] The issue was the subject of discussion by the Full Court of the Supreme Court of South Australia in BHP Billiton Ltd v Hamilton.[50] In that case the deceased had contracted mesothelioma working for the defendant. General damages of $115,000 were awarded. The defendant's appeal was dismissed and general damages were increased to $190,000. The following was noted:
(a) BHP's contention that a consideration of other awards should be confined to appellate decisions was rejected (Blue J at [101]).
(b) There were historical reasons why courts may have taken a parochial view when assessing such damages. The colonies were relatively isolated geographically and legally in the 18th and 19th centuries (Blue J at [105]).
(c) The High Court has confirmed there is one common law of Australia (Blue J at [109]).
(d) The maintenance of inconsistent damages assessments in each State and Territory would be contrary to the fundamental unity of the Australian common law (Blue J at [110]).
(e) There was increased mobility of populations between the States and if inconsistent regimes were maintained this would encourage forum shopping (Blue J at [110]).
(f) It would be incongruous if there were two markedly different awards - one in Albury and one in Wodonga (Blue J at [110]).
(g) Few cases where judges assess the damages reach trial and there are few appellate decisions (Blue J at [111]).
(h) There was no longer any compelling reason why regard should not be had to awards given in other jurisdictions in deciding whether an award in South Australia was inadequate or excessive (Blue J at [112]).
(i) Because the DDT decisions cannot be the subject of appeal, extreme caution should be exercised before having regard to the first instance decisions (Blue J [121]).[51]
(j) An award of general damages for pain, suffering and loss of amenities differs from an award of damages for loss of earning capacity. There is less reason to place differing monetary values on the experience of injured persons in different jurisdictions (Stanley J at [317]).
(k) It is appropriate to have regard to awards in other jurisdictions to ensure that in giving weight to fairness and moderation there is no glaring inconsistency between the value the courts of South Australia place on an injured person's pain and suffering as compared to another jurisdiction (Stanley J at [317]).
(l) One should not ignore cases from the New South Wales DDT although some had not been the subject of appeal (Stanley J at [323]).
[130] Likewise, in ZAB v ZWM[52] Blow CJ noted:
(a) Awards for damages in Tasmania for non-economic loss were for many years lower than in mainland Australia.
(b) There is no reason for this to remain the case given the mobility of the population.
(c) The appropriate course is to give weight to current general ideas of fairness and moderation on the part of Australian courts generally, not just the Tasmanian Supreme Court.
[131] The defendant heavily relied on the decision of the Full Court of the South Australian Supreme Court in Amaca Pty Ltd v Werfel.[53] In that case an award of $400,000 for general damages in a mesothelioma case was set aside and damages were reassessed at $280,000. It was held that the original award was manifestly excessive having regard to the "level of damages awarded in this State." In Werfel, it was submitted the trial judge erred in his approach to the assessment of general damages and had regard to one DDT decision.
(a) It is permissible and desirable to have regard to appropriate awards in comparable cases when determining damages ([396]).
(b) Though interstate awards are relevant, the award must be made having regard to the general level of damages in the State ([397]).
(c) It is not for a single judge to decide whether damages should be increased having regard to the approaches in other states ([399]).
(d) Extreme caution should be applied to first instance decisions such as the DDT ([414]).
(e) Interstate awards are not irrelevant although primary emphasis is given to awards within each jurisdiction ([416]).
(f) There is no reason why the pain and suffering of a South Australian should be assessed as less than any other Australian but "there remain differences nonetheless" ([418]).
[133] In both Hamilton and Werfel the courts did not have cases like the jury decisions from Queensland I have to consider.
[134] If there is inconsistency in the authorities, I prefer the statements made in King and ZAB in light of the fact we are in the common law of Australia.
[135] When I consider these authorities when it comes to the assessment of general damages, I do consider the court should have regard to interstate decisions, including the New South Wales DDT. Despite the limitation of appeal rights the fact is they are decisions made by NSW judges who have independently assessed the quantum of general damages based on the evidence before the court. They are relevant when it comes to assess both fairness and moderation.
[136] In light of the cost-of-living issues in Sydney as compared to Brisbane, there may be some call to exercise some discounting but not greatly. Pain and suffering has the same effect whether suffered in Sydney or Brisbane.
[137] It is also submitted that it is appropriate for the court to have regard to the recent awards in defamation cases.[54] It is submitted the High Court in Carson v John Fairfax & Sons Ltd[55] noted that there needs to be an appropriate or rational relationship between the scale of awards in defamation cases and in personal injuries cases.
[138] In this regard, the plaintiff relies on the Queensland defamation case of Wagner & Ors v Nine Network Australia[56] where $600,000 for non-economic loss was awarded against a media outlet and $300,000 against a journalist. It is submitted that an award for terminal mesothelioma should be greater than this.
[139] It is accepted that the use of defamation cases as an analogy may be accepted but this can only be as a potential reference point. The weight given to them should be minimal. Awards for damages for distress and for injury to personal reputation do not have a sufficient analogy to upset the manner in which personal injuries cases are to be decided in Queensland. They had been influenced by jury decisions. Ultimately, it is for the Court of Appeal to determine whether to increase the level of damages in Queensland.
[140] In Carson v John Fairfax & Sons Ltd[57] it was said that there needs to be an appropriate and rational relationship between the scales of awards in defamation cases and personal injuries cases.
[141] In Coyne v Citizen Finance Ltd[58] the High Court said that damages awards in personal injuries cases are capable of providing some guidance to an appellate court in considering whether an award for damages for defamation is excessive, and this reasoning works both ways.
[142] Indeed, in Amaca Pty Ltd v King_[59]_ the Victorian Court of Appeal had regard to an award of $600,000 in damages for defamation to a barrister when it considered the jury award of $730,000 in a mesothelioma case.
[143] The Victorian Court of Appeal observed in Seltsam Pty Ltd v Reid[60] that over the last ten years awards of damages have increased, both in defamation and in personal injury cases. The court had regard to Nationwide News Pty Ltd v Rush,[61] the case in which Geoffrey Rush received an award of $850,000 in damages for non-economic loss.
[145] Diplock LJ in McCarey v Associated Newspapers Ltd (No 2)[64] expressed the view that "the law is not more jealous of a man's reputation than of his life and limb".
[146] Philosophical issues (not just legal ones) are perhaps raised on whether a physical injury to a human being or to a human being's reputation sounds more or less in damages. Be that as it may, I accept that regard may be had to defamation cases in determining the award of general damages in this case.
[147] With respect to Walter's inability to take care of Audrey, it is accepted that the plaintiff cannot recover, as a separate head of damages, an award calculated by reference to the commercial value of those services. However, the loss or impairment of the amenity constituted by an incapacity to assist others may be compensated as part of general damages.[65]
[148] In Webber v Comcare,[66] the DDT allowed $100,000 for this aspect of the general damages in a mesothelioma case. The judge accepted that this aspect of the case required a significant increase in the award.
[149] In Kennedy v CIMIC Group Ltd,__[67]$80,000 was allowed under this head.
[150] In this case it is submitted that an award in the order of $100,000 should be assessed.
[151] No damages can be claimed for the loss of the ability to supply services to others. Nonetheless, it is accepted by reference to CSR Ltd v Eddy[68] that an additional component for general damages to reflect loss of capacity to provide gratuitous service is appropriate in the assessment of general damages. It is submitted this should only be a small augmentation. With respect to the case of Webber v Comcare relied on by the plaintiff, it is submitted that this case should be approached with extreme caution as this is a decision of the New South Wales DDT.
[152] As the parties accept, the loss or impairment of the amenity constituted by the capacity to assist others may be compensated as part of the general damages.[69]
[153] The evidence revealed that Audrey was the love of Walter's life. After 2019 Audrey was becoming forgetful with household tasks. Walter took over many of these tasks. Ultimately, she was diagnosed with Alzheimer's disease in May 2021. Walter in his affidavit provides full details of the services provided. Had he not fallen ill with the mesothelioma, these would have continued until she was gone. This was likely in excess of five years.
[154] I have regard to the cases relied on by the plaintiff.
[155] It is submitted that an award of $800,000 should be made in this case which includes a sum relating to Walter's distress as to Audrey's care in the sum of $100,000.
[156] A schedule of comparable cases is attached as Annexure A to this judgment.
[157] The plaintiff ultimately submits that in light of all of the facts of the case a significant sum should be awarded. A significant aspect of the case is Walter's care for Audrey.
[158] An award of $800,000 is significantly less than that in Amaca Pty Ltd v King[70] if one considers the effect of the inflation rate on those damages. That amount would be worth $1,023,898.47 today.
[159] The defendant submits that the claim of $800,000 is excessive and vastly exceeds any judicial award for general damages for an injury in Queensland. This would be the highest judge made award for general damages in Queensland.
[160] It is submitted that apart from the two jury decisions (which have to be treated with caution), there is no contemporary authority of any relevance in Queensland as to the assessment of general damages for mesothelioma. The defendant refers to comparable verdicts in other significant personal injury cases[71] and in particular relies on the decision of Hills v State of Queensland,[72] where an award was given of $220,000 where the young child who experienced a severe type of cerebral palsy had a life expectancy of 44 years. The defendant says is it not an overstatement to state that $800,000 is extravagantly disproportionate to other such awards, bearing in mind the primacy of Queensland decisions.
[161] The defendant also relies on the case of Miller v The State of South Australia.[73] In that decision, the Judge considered the two jury verdicts of Martin and Brown. Ultimately, $400,000 was awarded in Miller.
[162] Mr Holyoak helpfully tendered the schedule of comparable decisions used in Miller. I have attached this to the judgment.
[163] Bearing in mind the age of Walter and the limited period over which he suffered his symptoms, $200,000 in general damages should be awarded.
[164] As regards the cases relied on by the defendant (for example - Hills), many of them are dated, most likely explained by the fact that fewer cases come before the court for assessment, bearing in mind the advent of mediation in personal injuries cases.
[166] I consider the plaintiff has a reasonable argument that the assessment of general damages in more modern times has moved on. The fact is, as is pointed out, the cost of living is increasing, and Australians have an increased quality of life than what they had decades ago. In addition, one must bear in mind that there is much interstate travel and movement. The High Court has said that there is one common law of Australia.
[167] I also cannot ignore the Queensland jury decisions and they must be considered as they do reflect community values. I have regard to them. I do note they were never the subject of consideration on appeal. I do however think they are high verdicts when I consider the cases referred to by the parties.
[168] I also cannot ignore and have regard to the defamation cases relied on by the plaintiff.
[169] I have found the defendant's schedule very useful in this case. These awards have been updated to reflect present values. I consider that the DDT decisions are of assistance as that Tribunal has considered many mesothelioma cases in similar circumstances. But I bear in mind that there is no norm or tariff.
[170] I accept the plaintiff's submissions that the CSR v Eddy assessment should be for a reasonable amount, bearing in mind it was the intention of Walter to care for Audrey for the rest of his life - 5.27 years.
[171] Ultimately, I consider that an assessment of $800,000 is too high and an assessment of $200,000 is too low, when I consider the principles of fairness and moderation.
[173] Insofar as Miller is concerned the Judge did refer to the two Queensland jury decisions at [1092] but did not make it clear what weight was accorded to them or why he did not rely on them. His honour appears to have been heavily influenced by the quantum assessment in Werfel ([1093]-[1094].)
[174] As regards the loss of expectation of life, Walter was 88 at the time of his death and he had a life expectancy of 5.27 years. In Seltsam Pty Ltd v Reid[79] there was an award of $20,000 for loss of life expectancy, together with an assessment of general damages of $580,000. In Amaca Pty Ltd v Werfel,[80] $20,000 was awarded. An award of $20,000 is sought.
[175] It is submitted that such awards have been deprecated and a "conventional" amount is to be awarded. The defendant refers to a number of cases in its submissions to justify the contention that only $5,000 should be awarded.
[176] Damages for loss of expectation of life are compensable under a separate head of damage. It is true that a conventional sum is awarded.[81]
[177] Many of the cases relied on by the defendant are dated:
[178] Werfel, where $20,000 was assessed, was decided 5 years ago.
[179] Miller, where $15,000 was assessed, was decided in 2025.
[180] Seltsam Pty Ltd v Reid, where $20,000 was assessed, was decided four years ago. In this case the court considered two Western Australian decisions where $15,000 was awarded.[85]
[181] I consider $15,000 should be awarded under this head.
[182] In the circumstances, I assess damages as follows:
Total - $542,388.18, less Workcover refund $384,790 - Net amount $157,598.18
[183] I give judgment for the plaintiff in the amount of $157,598.18.
Deane -v- Tower Insurance Limited [2013] NSWDDT 9 (30 July 2013)
61 at trial, symptoms for 1 year before trial, prognosis of 6 months from trial
79 at trial, symptoms for about 9 months until death before trial.
Symptoms commenced November 2010. Diagnosed November 2010. Prognosis of 4 years.
Asbestosis. Symptoms for at least 10 years. Life expectancy of days to weeks at trial.
Symptoms for about 10 months before trial. Prognosis of 8 months.
Symptoms for about 12 months. until death before trial
Almost 2 years of symptoms from onset to life expectancy.
Approximately 1 year of symptoms from onset to life expectancy.
2 years of symptoms with 3 years life expectancy [mesothelioma of the tunica vaginalis testis]
Approximately 2 years of symptoms from onset to life expectancy.
Approximately 7 months from onset to life expectancy
Approximately 1 year from onset of symptoms to life expectancy
$350,000 (pursuant to common law), $430,000 (pursuant to WA law)
Present Value - $417,602.64 (common law), $513,054.67 (WA law)
Almost 2 years from the onset of symptoms to life expectancy
Approximately 1 year from onset of symptoms to life expectancy
Mild symptoms from 2018, life expectancy of weeks. No surgery. No oxygen. No treatment. No pain medication other than Panadol. No psychiatric injury. No requirement for nursing aids and equipment.
Symptoms of pain and anxiety for about 10 months to death. No surgery. No chemotherapy or immunotherapy.
Symptoms for about 17 months before trial. Prognosis of 2 years.
Symptoms for about 2.5 years before trial. Prognosis of 18 months.
Annexure B - Plaintiff's Schedule of Comparative Cases
Value in 2024/2025 Financial Year[89]
Martin v Amaca Pty Ltd (Under NSW Administered Winding Up)
(Queensland Supreme Court Proceeding No. 14524 of 2023)
Amaca Pty Ltd v King (2011) 35 VR 280; [2011] VSCA 447
(Unreported, Supreme Court of Victoria, 22 March 2010)
Seltsam Pty Ltd v Reid [2021] VSCA 326
Footscray Football Club Ltd v Kneale [2024] VSCA 314
Wagner & Ors v Nine Network Australia & Or (2020) 6 QR 64; [2020] QCA 221
The current value calculation is based on the date of the appeal judgment
$600,000 (including $200,000.00 for aggravated damages)
Nationwide News Pty Ltd v Rush [2020] FCAFC 115
[1] Workcover v Amaca Pty Ltd [2010] HCA 34; (2010) 241 CLR 420.
[2] Affidavit of Walter Greenall sworn 18 February 2022 - [62].
[3] I do not think these are of much moment in this case, bearing in mind there is no evidence he was likely to die from these.
[4] Dr Bilinski thought this was because he was frail.
[5] Ms White had been retained by the defendant.
[7] I note this amount cannot be claimed Greenall v Amaca Pty Ltd [2023] QSC 137; (2023) 17 QR 47; on appeal [2024] QCA 132.
[8] Skelton v Collins [1966] HCA 14; (1966) 115 CLR 94.
[10] H Luntz Assessment of Damages for Personal Injury and Death 5th ed Lexis Nexis 2021 at [3.1.2].
[12] Stewart v Metro North Hospital and Health Service [2025] HCA 34; (2025) 99 ALJR 1348 at [24].
[13] Cootes v Concrete Panels (Qld) Pty Ltd [2019] QSC 146 at [89].
[14] Wickham v Treloar (1960) 77 WN (NSW) 350; (1960) SR (NSW) 7 at p 15.
[15] Skelton v Collins [1966] HCA 14; (1966) 115 CLR 94 at p 113.
[16] Teubner v Humble [1963] HCA 11; (1963) 108 CLR 491 at p 506.
[17] Wright v British Railway Board [1983] 2 AC 773 at p 777.
[18] [1968] HCA 62; (1968) 119 CLR 118 at pp 124-125.
[19] Amaca Pty Ltd v Tullipan [2014] NSWCA 269 at [40]- [42].
[20] [1993] HCA 31; (1993) 178 CLR 44 at pp 57-58.
[21] [2024] VSCA 39 at [83]- [84].
[23] Amaca Pty Ltd v King [2011] VSCA 447; (2011) 35 VR 280 at [177].
[24] Queensland Supreme Court No. 14524/23.
[26] Chakravarti v Advertiser Newspapers Ltd (No 2) (1998) 72 SASR 361 at [75].
[27] s 9A(4) of the Workers Compensation Act 1916 (Qld).
[29] [2021] VSCA 326 at [32], [71].
[30] Reid v Seltsam Pty Ltd [2021] VSC 653 at [94].
[31] [2024] VSCA 314; (2024) 77 VR 168 at [583], [602].
[32] (1998) 72 SASR 361 at p 378.
[33] (1985) ATR 80-761 at p 69,565.
[34] [1954] 1 WLR 1303 at p 1305.
[35] Noting that in Queensland we have juries of four.
[36] [1959] 2 QB 429 at pp 437- 438. Also see Dolbey v Goodwin [1955] 1 WLR 553 at p 555.
[37] Burley v Watson (1962) 62 SR (NSW) 454; Monahan v Anderson (1960) 61 SR (NSW) 282.
[38] [1975] HCA 27; (1975) 132 CLR 362 at p 369.
[39] Section 4 of the Jury Act 1995 (Qld).
[40] BHP Billiton Ltd v Hamilton [2013] SASCFC 75; (2013) 117 SASR 329 at [118].
[41] Kable v Director of Public Prosecutions [1996] HCA 24; (1996) 189 CLR 51.
[44] [1996] HCA 24; (1996) 189 CLR 51 at 112; Lange v ABC [1997] HCA 25; (1997) 189 CLR 520 at p 563.
[46] John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 at [15], [86].
[51] There is a right of appeal to the Supreme Court under section 32 of the Dust Diseases Tribunal Act 1989 (NSW) on a point of law.
[52] [2021] TASSC 64 at [122].
[54] See for example Amaca Pty Ltd v King [2022] VSCA 447; (2011) 35 VR 280 at [180].
[55] [1993] HCA 31; (1993) 178 CLR 44. Also see Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 at [70].
[57] [1993] HCA 31; (1993) 178 CLR 44 at pp 58-59.
[58] [1991] HCA 10; (1991) 172 CLR 211 at pp 219-221.
[60] [2021] VSCA 326 [48].
[64] [1965] 2 QB 86 at 109. Also see Carson at p 58 and Lange at p 219.
[65] CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1 at [71].
[68] CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1.
[69] CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1 at [71].
[71] Defendant's submissions [67]-[72].
[77] Particularly the age of Walter and the length of time of his symptomatology.
[78] I thought the closest cases to the present were Londos (a 79 year old $437,129.82); Lavis (a 76 year old $462,108,66); Phillips (an 84 year old $430,043.81); Williams (a 72 year old $466,810.42); Kennedy (an 82 year old $417,602,64); Hudson (a 71 year old $411,250.51) and Armitage (an 84 year old $460,929.51).
[79] [2021] VSCA 326 at [463].
[85] Lowes v Amaca Pty Ltd [2011] WASC 287; Parkin v Amaca Pty Ltd [2020] WASC 306.
[86] $420,000 x 2 per cent x 1 year and $420,000 x 4 per cent x 3 years 11 months. See Piatti v ACN 000 246 542 Pty Ltd [2019] NSWDDT 7.
Greenall
Amaca Pty Ltd [2026] QSC 16
(2011) 35 VR 280
(2020) 138
SASR 295
(2018) 56 VR 674
(2013) 117
SASR 329
(2024) 333 IR 430
(1993) 178
CLR 44
(1998) 72 SASR 361
(1991) 172 CLR
211
(2005) 226 CLR 1
(2024) 77 VR 168
(2010) 242 CLR 520
(2000) 203
CLR 503
(1996) 189 CLR 51
(1997) 189 CLR 520
(1999) 200 CLR 485
(1968) 119
CLR 118
(1975) 132 CLR 362
(2015) 256 CLR 550
(2003) 216 CLR 327
(1966) 115 CLR 94
(2025) 99 ALJR 1348
(1963) 108 CLR 491
(2010) 241 CLR 420
(1968) 119 CLR 118
(1993) 178 CLR 44
(2013) 117 SASR 329
(2020) 138 SASR 295
(2000) 203 CLR 503
(1991) 172 CLR 211
(2020) 380 ALR 432
(p) On 25 August 2021 he told a respiratory physician that he had pain in his right back and had not been sleeping for weeks. He was getting breathless on exertion.
(q) On 10 September 2021 he was prescribed Targin and Endone. The Targin was indicated for chronic severe pain.
(r) On 19 September 2021, the Ambulance took Walter to hospital because of shortness of breath and breathing difficulty. There was reduced air entry on the right side. It as noted in the emergency department he was "desaturating to 80's" with a "new O2 requirement".
(s) On 22 September 2021, the dosage of Targin was increased.
(t) On 29 September 2021 he said his breathing was much the same but not worse. He was looking at starting domestic assistance.
(u) On 6 October 2021 he fell at home as there was no rail in the toilet.[4]