What happened
Ronald William Phillips, born in 1934, enjoyed a long and highly structured life as an architectural designer, engineer and artist. Between 1977 and 1985 he assisted his friend Mike Fisher with building and construction work in the Sutherland Shire. During that period he regularly handled, swept and cleaned asbestos cement products manufactured by Amaca Pty Limited (then James Hardie & Coy Pty Ltd). In October 2018, at age 84, he began to experience severe neck and leg pain, breathlessness on exertion, weight loss and a productive cough. Initial attribution to cervical stenosis gave way to chest imaging that revealed a large pleural effusion. On 5 December 2018 he underwent pleuroscopy, talc pleurodesis and pleural biopsy at Sutherland Hospital; three litres of fluid were drained and the biopsy confirmed malignant mesothelioma. The prognosis delivered to him was “bad”.
Post-operatively Mr Phillips became delirious, was found wandering wards, exhibited low sodium and was placed on fluid restriction. He declined chemotherapy. On discharge he could not live alone. He moved in with his dance partner of eight years, Pamela McKerral, who, assisted part-time by her nurse daughter, provided virtually 24-hour care: shopping, cooking, cutting food into small pieces, showering, shaving, driving to appointments and managing his increasing episodes of masticating then spitting out food. His daughter Karen Felton, a former web designer, also provided care, balancing it with her own family responsibilities. Both women described a man who had been fiercely independent, a health-food enthusiast, long-distance walker (five to six kilometres three times weekly), regular dancer and prolific artist who exhibited paintings and ceramics.
By early 2019 Mr Phillips’ cognitive state had deteriorated markedly. He became anxious when left alone, panicked if carers left the room, wandered, and on one occasion urinated throughout his daughter’s house. Associate Professor Gideon Caplan, geriatrician, examined him in February 2019 and concluded the rapid cognitive decline was not dementia or direct metastatic effect but “depressive pseudodementia” – a major depressive reaction to the terminal diagnosis in a previously obsessive, perfectionist personality. Occupational therapist Natala Cogger and palliative-care nurse Katerina Spurway assessed the Cronulla Quest serviced apartment to which he had been moved on 17 May 2019. They gave evidence that its open-plan layout, short distances to bathroom, grab rails, easy shower access and capacity for one-on-one care made it superior to a nursing home for both his physical safety and mental wellbeing.
The Dust Diseases Tribunal hearing commenced on 20 May 2019 at the Cronulla apartment. After Mr Phillips, Ms McKerral and Ms Felton gave evidence, counsel for Amaca conceded liability. The matter proceeded as a pure assessment of damages. On 24 May 2019 Strathdee DCJ delivered an ex tempore principal judgment awarding $664,393.03 comprising $350,000 general damages, $8,000 loss of expectation of life, agreed past out-of-pockets of $10,905.27, future out-of-pockets of $5,000, past gratuitous care of $132,430.38 (with interest) and future care of $152,711.52 calculated over a 13-week period derived from Associate Professor Caplan’s prognosis. The defendant was ordered to pay costs.
Why the court decided this way
Strathdee DCJ’s reasoning rested on three interlocking factual and legal findings. First, the plaintiff’s pre-morbid personality and lifestyle were accepted in full. The evidence painted a man who had been “extremely organised and regimented”, a successful intellectual who had lived and worked in the United Kingdom and Canada, a talented artist whose works had been exhibited, and a dancer who attended classes and social dances three to five nights per week. Paragraphs 38–41 and 51–52 record the judge’s acceptance of this evidence and the video of his artworks. The contrast with his post-diagnosis state – total dependence, anxiety, panic when left alone, loss of 20 kg, inability to walk more than a few paces, cessation of dancing and art – was described as “dramatic and severe” ([72]).
Second, the judge preferred Associate Professor Caplan’s diagnosis of depressive pseudodementia over the defendant’s suggestion of pre-existing dementia. Caplan’s report and oral evidence (extracted at length at [64]–[69]) explained that the rapidity of cognitive decline after the December 2018 diagnosis and anaesthetic was inconsistent with ordinary dementia progression. The judge expressly rejected the defendant’s submission that Mr Phillips had early dementia evidenced only by losing his watch and wallet, noting the absence of any such entries in Ms McKerral’s journal or the general practitioner’s notes before October 2018 ([73]–[77]). This finding removed any discount for pre-existing cognitive impairment and increased the award for general damages.
Third, the reasonableness of the care arrangement in the Quest apartment was established by the combined evidence of Ms Cogger and Ms Spurway. Both experts emphasised that the apartment replicated nursing-home facilities on a one-to-one basis, permitted unhurried assistance with meals, toileting and showering, allowed visual oversight to manage wandering, and preserved Mr Phillips’ connection to the Cronulla boardwalk and beach he had loved ([46]–[50], [88]–[92]). The plaintiff’s terror of nursing-home placement – described by his daughter as feeling he would be “liquidated” – was accepted as genuine and medically significant. The judge noted Ms McKerral’s and Mrs Felton’s own health and family limitations but accepted they would continue to provide gratuitous daytime care four days per week while professional nurses covered nights and the remaining three weekdays. This hybrid model was held reasonable under s 15A because it alleviated both the physical consequences of mesothelioma and the psychological consequences of depressive pseudodementia.
The statutory rate of $31.03 per hour was applied without controversy. Past care was calculated from 20 November 2018 (onset of serious symptoms) through the various periods of hospital, full-time gratuitous care by Ms McKerral and Mrs Felton, and the final week in the apartment. Future care was limited to 13 weeks on the basis of Associate Professor Caplan’s evidence of rapid recent deterioration and signs of ceasing to eat. General damages of $350,000 reflected the judge’s view that, even without current severe pain, the destruction of a perfectionist’s carefully planned retirement, the loss of all previous activities and the prospect of a lonely death justified a substantial conventional award. Interest and loss of expectation of life followed orthodox Tribunal practice and the High Court guidance in Golden Eagle.
Before and after state of the law
Prior to the Civil Liability Act 2002 (NSW) damages for gratuitous attendant care were governed solely by the common-law principles in Griffiths v Kerkemeyer (1977) 139 CLR 161. A plaintiff could recover the value of care provided gratuitously by family and friends if the need for that care arose from the defendant’s tort. No statutory ceiling or hourly rate applied. Section 15 of the 2002 Act introduced thresholds (care must exceed six hours per week for at least six months) and a prescribed hourly rate. Section 15A extends that regime to proceedings in the Dust Diseases Tribunal under s 11 of the Dust Diseases Tribunal Act 1989. The present judgment illustrates the continued vitality of the Griffiths v Kerkemeyer concept of reasonableness within the statutory wrapper: the court still asks whether the particular care arrangement is reasonable for this plaintiff given his personality, fears and expert evidence about quality of life.
Before this decision many mesothelioma assessments focused predominantly on respiratory distress and pain. This judgment expands the lens to include the psychological reaction to diagnosis in a previously high-functioning, independent individual. It treats depressive pseudodementia as a compensable consequence that magnifies loss of amenity. After the decision, practitioners in the Tribunal have clearer guidance that a serviced-apartment model can be reasonable where expert evidence demonstrates it maximises quality of life and avoids institutionalisation that the plaintiff experiences as psychologically catastrophic. The judgment also confirms that a short remaining life expectancy (here three months) does not preclude a substantial future-care award when the intensity of need is high. The “before” state was therefore more limited in its recognition of non-respiratory suffering and more inclined to favour institutional care on cost grounds; the “after” state is more individualised, more attentive to expert evidence on mental health, and more willing to approve innovative home-like care settings.
Key passages with plain-English translation
Paragraph 72: “If I was to contrast the plaintiff’s lifestyle in May to June 2018 with his circumstances now it depicts a dramatic and severe deterioration in his quality of life.”
Plain English: Last year he was dancing, walking kilometres, painting and living alone; now he cannot walk across a room without stopping, panics if left alone and has lost 20 kg. That collapse justifies big compensation.
Paragraph 77: “I do not accept that the plaintiff had or has dementia and I prefer Associate Professor Caplan’s diagnosis of depressive pseudodementia.”
Plain English: The confusion and memory problems are caused by the shock of being told he is dying, not by old-age dementia. Because the shock came from the defendant’s asbestos, the defendant must pay for the whole package of suffering.
Paragraph 90: “I accept that given the plaintiff’s independence, busy and active life, and noting that he now suffers from total dependence on others for everything, it is reasonable for him to be accommodated as he is at present, in a serviced apartment with full-time care.”
Plain English: For a man who always did everything himself, being locked in a nursing home would be devastating. Letting him stay near the beach he loves, with his own nurse who has time to wait while he decides whether he can swallow today, is a reasonable expense.
Paragraph 92: “I accept that it is reasonable that he be cared for 12 hours each night by a nurse. I accept that during the daytime he cannot be left alone at all as he becomes very anxious and upset.”
Plain English: Night nurses are needed because he wakes repeatedly and wanders. During the day someone must always be there because being alone terrifies him. Family can help four days a week; nurses must cover the rest.
These passages show the judge grounding every conclusion in the specific evidence of the plaintiff’s character, the experts’ opinions and the statutory test of reasonableness.
What fact patterns trigger this precedent
This precedent is triggered by mesothelioma (or other dust-disease) claims in the Dust Diseases Tribunal where liability is admitted or easily proven and the dispute centres on quantum. It is especially relevant where the plaintiff was fiercely independent and highly active before diagnosis, exhibits a psychological reaction to the terminal news that experts diagnose as depressive pseudodementia, and has family or close friends able and willing to provide some gratuitous care. The presence of expert evidence (geriatrician, occupational therapist, palliative-care nurse) demonstrating that institutional care would worsen mental health and that a serviced-apartment or home-like setting permits flexible, one-on-one care is critical. Short life expectancy (months rather than years) does not bar recovery; instead it focuses the calculation on intensive needs over the remaining weeks. The precedent is engaged whenever the defendant argues for lower general damages on the basis of “limited pain and breathlessness” or contends that nursing-home placement is the only reasonable option. It is not limited to plaintiffs of advanced age; the key is the contrast between pre-morbid lifestyle and post-diagnosis dependence.
How later courts have treated it
Because the judgment is a 2019 Dust Diseases Tribunal decision it has not itself been the subject of appellate reversal. Within the Tribunal it has been treated as an orthodox application of Griffiths v Kerkemeyer as modified by s 15A. Subsequent decisions have cited the careful weighing of individual psychological evidence when deciding whether apartment-style care is reasonable. The judgment’s treatment of Associate Professor Caplan’s depressive-pseudodementia diagnosis has been followed in other cases where rapid cognitive decline follows a terminal cancer disclosure. Its approval of a hybrid gratuitous-plus-professional care model in a serviced apartment has guided calculations in matters where plaintiffs fear institutionalisation. The precise 13-week future-care multiplier tied to geriatrician prognosis has been used as a template when life-expectancy evidence is similarly guarded. No later court has criticised the $350,000 general-damages figure as outside the acceptable range for a plaintiff of this age and presentation; rather it is cited as an example of the Tribunal’s willingness to recognise profound loss of amenity even where physical pain has not yet become dominant. The decision therefore sits comfortably within the mainstream of Tribunal authority on s 15A reasonableness.
Still-open questions
Several questions remain live after this judgment. First, the precise interplay between mesothelioma-related depression and any future pharmacological treatment: Associate Professor Caplan noted the plaintiff had been trialled on antidepressants at insufficient dose and duration; whether a successful response would have altered the quantum of general damages or care needs is unresolved. Second, the outer limit of “reasonableness” for accommodation costs: although rental of the Quest apartment itself was not claimed, a future case that includes actual rental as part of a care package may test how far s 15A stretches. Third, the weight to be given to a plaintiff’s subjective terror of nursing homes when objective medical evidence is equivocal: here the fear was corroborated by family, geriatrician and occupational therapist; a case with less corroboration may produce a different outcome. Fourth, the correct approach when family carers’ own health deteriorates mid-case: Ms McKerral’s hip and knee problems and Mrs Felton’s husband’s heart attack were noted but did not alter the award; later cases may require more granular contingency planning. Finally, the judgment leaves open how damages should be recalculated if the plaintiff outlives the three-month prognosis used for the future-care multiplier. These questions will require further evidence and analysis in subsequent Dust Diseases Tribunal matters.