The recent judgment of the WA Supreme Court (WASC) in the matter of Parkin v Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd)  WASC 306 (Parkin) saw a significant increase in the amount previously awarded to mesothelioma sufferers in respect of general damages. Significant sums were also awarded in relation to treatment costs and the provision of gratuitous services.
Parkin is the first mesothelioma case to go to trial in Western Australia since 2011. The matter went to trial on the issue of quantum only, liability having been admitted by the defendant. The court awarded the plaintiff a total of $1,041,480 damages.
The plaintiff in Parkin was a 63 year old former clerk, who contracted pleural mesothelioma as a result of her exposure to asbestos fibres, which emanated from asbestos cement building products manufactured by the defendant.
The exposure to asbestos fibres occurred whilst the plaintiff was a teenager and she assisted her father with renovation work, sanding and painting the family home.
The total awarded included awards for the following head of damages;
Both parties referred the court to awards for damages for non-pecuniary loss (general damages) in respect of pain, suffering and loss of enjoyment of life, made in earlier decisions. Le Miere J held that the court may have regard to such decisions.
The plaintiff referred to a number of cases concerning awards of general damages in the Dust Diseases Tribunal of New South Wales (DDT), which generally range from $350,000 to $400,000 for such damages. The plaintiff also referred to non-mesothelioma cases involving plaintiffs who had suffered sexual assault, which had seen Western Australian courts award general damages of $400,000.
The defendant referred to a number of cases, including Lowes v Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd)  WASC 2087 (Lowes), in which general damages of $250,000 were awarded. Le Miere J noted however that Lowes was decided almost ten years ago and awards of damages had increased significantly during that period.
The court also referred to the very recent DDT decision in the matter of Kennedy v Cimic Group Limited & CPB Contractors Pty Ltd  NSWDDT 7 (31 July 2020) (Kennedy). In Kennedy, the plaintiff was 82 years of age at the time of trial and suffered from mesothelioma. The trial judge, Scotting J, was required to assess general damages, applying the substantive law of Western Australia. Scotting J had regard to the previous cases decided by the Supreme Court of WA, including Lowes and Amaca Pty Ltd v Hannell  WASCA 158, but concluded that the cases “lacked contemporaneity”. In Kennedy, an award of $350,000 was made for general damages.
Le Miere J stated that in determining the award for general damages, the court must have regard to the particular circumstances of the plaintiff and noted that the evidence disclosed that the impact on the plaintiff of mesothelioma had been enormous. Le Miere J awarded the sum of $360,000 in respect of general damages.
Amounts awarded in respect of past and future treatment notably included an amount of almost $60,000 in respect of past and future treatment with the immunotherapy drug Pembrolizumab, which is marketed under the brand name of Keytruda. The court noted that Keytruda is not a chemotherapy or radiotherapy drug, but rather a checkpoint inhibitor, a type of immunotherapy. The drug blocks proteins that stop the immune system from attacking cancer cells.
The defendant submitted that the plaintiff’s claim to be compensated for the cost of Keytruda treatment was not supported by the evidence. The defendant submitted that the plaintiff must establish that treatment was reasonable. The defendant relied upon medical evidence that treatment with Keytruda for mesothelioma generally, with or without chemotherapy, is not adequately supported by current medical knowledge. On that basis, it was argued that the claim for such treatment was not reasonable.
Le Miere J considered the available medical evidence, including the results of clinical trials, which showed potential benefit to mesothelioma suffers from such treatment.
It was also noted that the plaintiff appears to have done well from the treatment to date.
Le Miere J found that the Keytruda treatment was reasonably required by the plaintiff as a consequence of her mesothelioma, caused by the defendant’s negligence. Le Miere J held that the treatment is appropriate in the sense that it serves a purpose. It was noted that medical research had shown that treatment including Keytruda and chemotherapy had a greater capacity to reduce the progression of mesothelioma than treatment by conventional chemotherapy alone. It was also noted that the cost is substantially greater than the cost of treatment by chemotherapy alone, but that the additional cost of the treatment is not disproportionate to benefits that accrued, which included reducing the progression of mesothelioma and improving well-being.
Damages were awarded for past and future care and assistance in the amounts of $139,402.74 and $196,530.71 respectively.
The plaintiff resided with her sister in their own home. The court heard that the plaintiff and her sister were very close. The court heard that since the onset of symptoms, the plaintiff had relied on her sister for assistance with domestic tasks.
It was noted by an occupational therapist instructed by the defendant that the plaintiff and her sister had a very special bond, having done most things together for years prior to the plaintiff’s diagnosis. The plaintiff and her sister were described as being “somewhat enmeshed in each other’s lives” and that as a result, the plaintiff’s sister had provided more care and assistance than the occupational therapist had seen in other cases of a similar nature.
The court made limited allowances for services provided by the plaintiff’s sister to the plaintiff, whilst the plaintiff was in hospital.
Following the plaintiff’s discharge from hospital in the later stages of her illness, an occupational therapist instructed by the plaintiff assessed the plaintiff’s need for care and assistance from her sister as being significant, making allowances for constant supervision provided by the plaintiff’s sister, which it was stated provided emotional support for the plaintiff.
The defendant accepted that emotional or psychological support may be of comfort to the plaintiff, but submitted that there is no appropriate expert evidence that the plaintiff had a need for such supervision and care.
The court considered cases involving consideration of gratuitous services provided to a plaintiff by a person with whom he/she is in a marital or other personal and permanent relationship, including provision of protective attention. Le Miere J held that the supervision or protective attention provided to the plaintiff by her sister was a compensable gratuitous service and made allowance for provision of such supervision or protective attention at various stages of the plaintiff’s illness.
The amount awarded by the court in respect of general damages is the highest such award made in Western Australia in a mesothelioma case and appears to be commensurate with awards made in other Australian jurisdictions. It is to be expected that this decision will place upwards pressure on negotiated settlements in mesothelioma claims.
For some time, defendants have resisted being required to fund immunotherapy treatment, or treatment which is described as experimental only. During negotiated settlements, defendants have typically refused to make allowance for treatments with immunotherapy drugs, such as Keytruda. Following the decision of the WASC of Parkin, that position may now be untenable.
Claims for gratuitous services are to be assessed on the merits of each case. In Parkin, the close nature of the relationship between the plaintiff and her sister gave rise to the supervision and protective attention provided by the plaintiff’s sister to the plaintiff being regarded as a compensable gratuitous service. Of note, the court adopted the higher Silver Chain hourly rate for provision of services. As a result, the application of the Silver Chain rate is now likely to be of the norm in negotiated settlements.
In June 2023, a Canadian Court in South-West Terminal Ltd v Achter Land and Cattle Ltd, 2023 SKKB 116, held that the "thumbs-up" emoji carried enough weight to constitute acceptance of contractual terms, analogous to that of a "signature", to establish a legally binding contract. Facts This case involved a contractual dispute between two parties namely South-West Terminal ("SWT"), a grain and crop inputs company; and Achter Land & Cattle Ltd ("ALC"), a farming corporation. SWT sought to purchase several tonnes of flax at a price of $17 per bushel, and in March 2021, Mr Mickleborough, SWT's Farm Marketing Representative, sent a "blast" text message to several sellers indicating this intention. Following this text message, Mr Mickleborough spoke with Mr Achter, owner of ALC, whereby both parties verbally agreed by phone that ALC would supply 86 metric tonnes of flax to SWT at a price of $17 per bushel, in November 2021. After the phone call, Mr Mickleborough applied his ink signature to the contract, took a photo of it on his mobile phone and texted it to Mr Archter with the text message, "please confirm flax contract". Mr Archter responded by texting back a "thumbs-up" emoji, but ultimately did not deliver the 87 metric tonnes of flax as agreed. Issues The parties did not dispute the facts, but rather, "disagreed as to whether there was a formal meeting of the minds" and intention to enter into a legally binding agreement. The primary issue that the Court was tasked with deciding was whether Mr Achter's use of the thumbs-up emoji carried the same weight as a signature to signify acceptance of the terms of the alleged contract. Mr Mickleborough put forward the argument that the emoji sent by Mr Achter conveyed acceptance of the terms of the agreement, however Mr Achter disagreed arguing that his use of the emoji was his way of confirming receipt of the text message. By way of affidavit, Mr Achter stated "I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract"; and "I did not have time to review the Flax agreement and merely wanted to indicate that I did receive his text message." Consensus Ad Idem In deciding this issue, the Court needed to determine whether there had been a "formal meeting of the minds". At paragraph , Justice Keene considered the reasonable bystander test: " The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37)." Justice Keene considered several factors including: The nature of the business relationship, notably that Mr Achter had a long-standing business relationship with SWT going back to at least 2015 when Mr Mickleborough started with SWT; and The consistency in the manner by which the parties conducted their business by way of verbal conversation either in person or over the phone to come to an agreement on price and volume of grain, which would be followed by Mr Mickleborough drafting a contract and sending it to Mr Achter. Mr Mickleborough stated, "I have done approximately fifteen to twenty contracts with Achter"; and The fact that the parties had both clearly understood responses by Mr Achter such as "looks good", "ok" or "yup" to mean confirmation of the contract and "not a mere acknowledgment of the receipt of the contract" by Mr Achter. Judgment At paragraph , Keene J said: "I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions." The court satisfied that the use of the thumbs-up emoji paralleled the prior abbreviated texts that the parties had used to confirm agreement ("looks good", "yup" and "ok"). This approach had become the established way the parties conducted their business relationship. Significance of the Thumbs-Up Emoji Justice Keene acknowledged the significance of a thumbs-up emoji as something analogous to a signature at paragraph : "This court readily acknowledges that a thumbs-up emoji is a non-traditional means to "sign" a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a "signature" – to identify the signator… and… to convey Achter's acceptance of the flax contract." In support of this, Justice Keene cited the dictionary.com definition of the thumbs-up emoji: "used to express assent, approval or encouragement in digital communications, especially in western cultures", confirming that the thumbs-up emoji is an "action in an electronic form" that can be used to allow express acceptance as contemplated under the Canadian Electronic Information and Documents Act 2000. Justice Keene dismissed the concerns raised by the defence that accepting the thumbs up emoji as a sign of agreement would "open the flood gates" to new interpretations of other emojis, such as the 'fist bump' and 'handshake'. Significantly, the Court held, "I agree this case is novel (at least in Skatchewan), but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage." Ultimately the Court found in favour of SWT, holding that there was a valid contract between the parties and that the defendant breached by failing to deliver the flax. Keene J made a judgment against ALC for damages in the amount of $82,200.21 payable to SWT plus interest. What does this mean for Australia? This is a Canadian decision meaning that it is not precedent in Australia. However, an Australian court is well within its rights to consider this judgment when dealing with matters that come before it with similar circumstances. This judgment is a reminder that the common law of contract has and will continue to evolve to meet the everchanging realities and challenges of our day-to-day lives. As time has progressed, we have seen the courts transition from sole acceptance of the traditional "wet ink" signature, to electronic signatures. Electronic signatures are legally recognised in Australia and are provided for by the Electronic Transactions Act 1999 and the Electronic Transactions Regulations 2020. Companies are also now able to execute certain documents via electronic means under s 127 of the Corporations Act. We have also seen the rise of electronic platforms such as "DocuSign" used in commercial relationships to facilitate the efficient signing of contracts. Furthermore, this case highlights how courts will interpret the element of "intention" when determining whether a valid contract has been formed, confirming the long-standing principle that it is to be assessed objectively from the perspective of a reasonable and objective bystander who is aware of all the relevant facts. Overall, this is an interesting development for parties engaging in commerce via electronic means and an important reminder to all to be conscious of the fact that contracts have the potential to be agreed to by use of an emoji in today's digital age.
The McCabes Government team are pleased to have assisted Venues NSW in successfully overturning a District Court decision holding it liable in negligence for injuries sustained by a patron who slipped and fell down a set of steps at a sports stadium; Venues NSW v Kane  NSWCA 192 Principles The NSW Court of Appeal has reaffirmed the principles regarding the interpretation of the matters to be considered under sections5B of the Civil Liability Act 2002 (NSW). There is no obligation in negligence for an occupier to ensure that handrails are applied to all sets of steps in its premises. An occupier will not automatically be liable in negligence if its premises are not compliant with the Building Code of Australia (BCA). Background The plaintiff commenced proceedings in the District Court of NSW against Venues NSW (VNSW) alleging she suffered injuries when she fell down a set of steps at McDonald Jones Stadium in Newcastle on 6 July 2019. The plaintiff attended the Stadium with her husband and friend to watch an NRL rugby league match. It was raining heavily on the day. The plaintiff alleged she slipped and fell while descending a stepped aisle which comprised of concrete steps between rows of seating. The plaintiff sued VNSW in negligence alleging the stepped aisle constituted a "stairwell" under the BCA and therefore ought to have had a handrail. The plaintiff also alleged that the chamfered edge of the steps exceeded the allowed tolerance of 5mm. The Decision at Trial In finding in favour of the plaintiff, Norton DCJ found that: the steps constituted a "stairwell" and therefore were in breach of the BCA due to the absence of a handrail and the presence of a chamfered edge exceeding 5mm in length. even if handrails were not required, the use of them would have been good and reasonable practice given the stadium was open during periods of darkness, inclement weather, and used by a persons of varying levels of physical agility. VNSW ought to have arranged a risk assessment of the entire stadium, particularly the areas which provided access along stepped surfaces. installation of a handrail (or building stairs with the required chamfered edge) would not impose a serious burden on VNSW, even if required on other similar steps. Issues on Appeal VNSW appealed the decision of Norton DCJ. The primary challenge was to the trial judge's finding that VNSW was in breach of its duty of care in failing to install a handrail. In addition, VNSW challenged the findings that the steps met the definition of a 'stairwell' under the BCA as well as the trial judge's assessment of damages. Decision on Appeal The Court of Appeal found that primary judge's finding of breach of duty on the part of VNSW could not stand for multiple reasons, including that it proceeded on an erroneous construction of s5B of the Civil Liability Act 2002 and the obvious nature of the danger presented by the steps. As to the determination of breach of duty, the Court stressed that the trial judge was wrong to proceed on the basis that the Court simply has regard to each of the seven matters raised in ss 5B and 5C of the CLA and then express a conclusion as to breach. Instead, the Court emphasised that s 5B(1)(c) is a gateway, such that a plaintiff who fails to satisfy that provision cannot succeed, with the matters raised in s 5B(2) being mandatory considerations to be borne in mind when determining s 5B(1)(c). Ultimately, regarding the primary question of breach of duty, the Court found that: The stadium contained hazards which were utterly familiar and obvious to any spectator, namely, steps which needed to be navigated to get to and to leave from the tiered seating. While the trial judge considered the mandatory requirements required by s5B(2) of the CLA, those matters are not exhaustive and the trial judge failed to pay proper to attention to the fact that: the stadium had been certified as BCA compliant eight years before the incident; there was no evidence of previous falls resulting in injury despite the stairs being used by millions of spectators over the previous eight years; and the horizontal surfaces of the steps were highly slip resistant when wet. In light of the above, the Court of Appeal did not accept a reasonable person in the position of VNSW would not have installed a handrail along the stepped aisle. The burden of taking the complained of precautions includes to address similar risks of harm throughout the stadium, i.e. installing handrails on the other stepped aisles. This was a mandatory consideration under s5C(a) which was not properly taken into account. As to the question of BCA compliance, the Court of Appeal did not consider it necessary to make a firm conclusion of this issue given it did not find a breach of duty. The Court did however indicated it did not consider the stepped aisle would constitute a "stairway" under the BCA. The Court of Appeal also found that there was nothing in the trial judge's reasons explicitly connecting the risk assessment she considered VNSW ought to have carried out, with the installation of handrails on any of the aisles in the stadium and therefore could not lead to any findings regarding breach or causation. As to quantum, the Court of Appeal accepted that the trial judge erred in awarding the plaintiff a "buffer" of $10,000 for past economic loss in circumstances where there was no evidence of any loss of income. The Court of Appeal set aside the orders of the District Court and entered judgment for VNSW with costs. Why this case is important? The case confirms there is no obligation in negligence for owners and operators of public or private venues in NSW to have a handrail on every set of steps. It is also a welcome affirmation of the principles surrounding the assessment of breach of duty under s 5B and s 5C of the CLA, particularly in assessing whether precautions are required to be taken in response to hazards which are familiar and obvious to a reasonable person.
The recent decision in New Aim Pty Ltd v Leung  FCAFC 67 (New Aim) has provided some useful guidance in relation to briefing experts in litigation.