Amaca Pty Ltd ordered to pay cost of immunotherapy treatment for mesothelioma asbestos victim

On 27 August 2020, the Supreme Court of Western Australia handed down an important decision about damages in a mesothelioma case. The case, Parkin v Amaca Pty Ltd was brought by 63-year-old Ms Parkin who was exposed to asbestos dust in the 1970s and 1980s, whilst helping her dad with renovations to their family home, work which included sanding asbestos cement building products manufactured by Amaca Pty Limited (formerly known as James Hardie & Coy Pty Limited) (“James Hardie”). Sadly, Ms Parkin was diagnosed with mesothelioma in 2019.

Ms Parkin was recommended a combination of Keytruda, a form of immunotherapy, and chemotherapy as a first line treatment for mesothelioma by her oncologist Dr Lam. Unfortunately, Keytruda is currently not covered by the Pharmaceutical Benefits Scheme, so in her case, Ms Parkin sought to claim the cost of her treatment in addition to other damages.

Whilst Ms Parkin gave evidence of the therapeutic benefits the Keytruda therapy had to her wellbeing, James Hardie argued that immunotherapy was not a reasonably required form of treatment, because current medical evidence did not fully support such treatment for mesothelioma. Therefore the key consideration for the Judge in his decision was whether the immunotherapy recommended by Dr Lam was objectively reasonably required.

In the end, the Judge found that immunotherapy was reasonably required, reasoning that:

The treatment is appropriate in the sense that it serves a purpose. There is currently no cure for mesothelioma. Standard treatment includes chemotherapy. Immunotherapy is not yet a standard first line treatment for the cancer but medical research, in particular the DREAM study , has shown that the treatment has a greater capacity to reduce the progression of the disease than alternative treatment by conventional chemotherapy alone. The cost is substantially greater than the cost of treatment by chemotherapy alone. However, the additional cost of the treatment is not disproportionate to its benefits when regard is had to the devastating nature and effect of mesothelioma and the capacity of the treatment to reduce the progression of the disease and improve wellbeing[1]

In their judgement, the Supreme Court ordered James Hardie to pay for the cost of Keytruda in addition to other damages.

This decision provides hope to sufferers of mesothelioma who may bear the cost of immunotherapy and treatment not currently on the Pharmaceutical Benefits Scheme, particularly those in NSW with non-occupational exposures to asbestos. Currently in NSW, people with mesothelioma who were exposed to asbestos as a worker can access iCare Dust Diseases Care to fund immunotherapy treatment as well as bring a claim for damages in the Dust Diseases Tribunal. However, sufferers of mesothelioma who were exposed to asbestos in a non-work setting had to fund the treatment themselves . This ruling may be able to help those sufferers to access the reasonably required treatment that is recommended to them by their doctors and to potentially recover the cost of the treatment as part of their claim.

[1] Reference: Parkin v Amaca Pty Ltd (formerly known as James Hardie & Coy Pty Limited) [2020] WASC 306