Phillip Raymond Kirkpatrick v Babcock Australia Pty Ltd 
The Dust Diseases Tribunal of New South Wales was asked to
assess damages in respect to a claim arising out of the condition
His Honour Judge Curtis awarded $280,000 for general damages
which is a benchmark for damages awarded in the Dust Diseases
Tribunal. However, the case may be distinguishable on its facts
given the Plaintiff's age and the fact that he underwent three
surgical procedures, and underwent chemotherapy and radiotherapy in
addition to further radical surgery.
Phillip Kirkpatrick was 61 years of age and commenced
proceedings in the Dust Diseases Tribunal of New South Wales
seeking damages, interest and costs to compensate him for the
condition of mesothelioma, arising out of his exposure to
The Plaintiff was employed by Babcock Australia Pty Ltd as an
engineer and the matter proceeded on an assessment of damages basis
In November 2006, the Plaintiff experienced symptoms of
right-sided chest pain and he ultimately underwent a pleural
biopsy, pleural aspiration and talc pleurodesis in December of that
year. However, there were three unsuccessful attempts to aspirate
fluid from the Plaintiff's right pleural cavity resulting in
extreme pain on each attempt.
After continued symptoms of pain, the Plaintiff was admitted to
the Strathfield Private Hospital on 14 August 2007 where he
underwent a right sided thoracotomy, partial pleurectomy, pulmonary
decortication and a further talc pleurodesis at the hands of
Professor Brian McCaughan. The Plaintiff was then diagnosed as
suffering from mesothelioma.
Chemotherapy treatment commenced on 9 October 2007 to which the
Plaintiff responded poorly, resulting in fevers, constipation,
vomiting and abdominal pain. It was necessary for the Plaintiff to
undergo a blood transfusion as a result of the amount of pain
medication he was taking.
The Plaintiff commenced 13 days of radiotherapy treatment on 5
January 2009 with numerous Hospital admissions to address the
Plaintiff's pain. A nerve block was inserted in the
Plaintiff's cervical spine in an attempt to relieve the
During his evidence, the Plaintiff described being
"reduced to tears" and "writhing in pain on the
floor" as a result of the pain and the medical experts who
gave evidence confirmed that the Plaintiff's prolonged life
expectancy had come at a significant price.
The Plaintiff was awarded $280,000 in general damages, plus
amounts for interest, loss of expectation of life, future loss of
earnings, care and out of pocket expenses.
The judgment has not identified the Plaintiff's pre-injury
earnings and the parties were directed to prepare consent orders
reflecting the finding that the Plaintiff would have continued to
work (at a reduced capacity) until the age of 70 years.
It is anticipated that the total damages are likely to exceed
$600,000 plus costs.
The significant aspect of this judgment is the amount allowed
for general damages. Prior to this decision, the high range allowed
for general damages in a mesothelioma matter was approximately
$250,000 following the decision of Curtis J in McNamara v Amaca
Pty Limited and Gifford v Cockatoo Dockyards.
Whilst this decision may be distinguishable on its facts given
the number of surgical procedure undergone by the Plaintiff and the
significant levels of subsequent pain, it is clear that the
Tribunal is raising the bar in terms of general damages.
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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