Elderly man wins court battle to die in beachside apartment after 'evil blow' asbestos ruling

Elderly people who are terminally ill with mesothelioma will be able to remain in the community at construction giant James Hardie's expense, rather than being forced into a nursing home by the company, under a landmark court ruling.

On Wednesday, the NSW Dust Diseases Tribunal ordered James Hardie, the company behind the asbestos scandal, to pay $664,000 to Sydney man Ron Phillips, who was diagnosed with mesothelioma four decades after he was exposed to asbestos while helping a friend renovate.

Of the payout, about $152,000 will cover the cost of commercial carers so the 84-year-old can see out his final days in a serviced beachside apartment in Cronulla.

Lawyers for James Hardie – now known as Amaca – had argued it should only be forced to fund the cheaper option of care in a nursing home.

But Judge Wendy Strathdee agreed the care Mr Phillips would receive in the serviced apartment – from a combination of carers, family and friends – would be "far superior".

"He deserves to be comfortable and, to the extent that he may find some comfort looking out from the balcony to see his beloved beach and boardwalk, it is reasonable for that to be provided to him," Judge Strathdee wrote, describing the diagnosis as an "evil blow".

Mr Phillip's lawyer Tanya Segelov welcomed the verdict, which she believed would set a precedent.

"It's really significant because you often have elderly people diagnosed due to the long latency of the disease … a lot of these people struggle to look after themselves," she said.

"To be forced to go into a nursing home – we said that was outrageous. Given they [James Hardie] had caused this disease, they should pay for the best possible care."

Mr Phillips, a retired architectural designer, was diagnosed with mesothelioma late last year.

His condition has deteriorated and he requires 24-hour care, with experts giving him about three months to live.

His daughter, Karen Felton, told the court her father was extremely distressed at the idea of entering a nursing home.

"He thinks that if he goes into a home he's going to be liquidated. I think it would kill him," she said.

Judge Strathdee found everything Mr Phillips had done in his life had been destroyed "as a consequence of the defendant's negligence".

"He is now lonely and miserable, travelling on a pathway to an inevitable death," she wrote.

She noted Mr Phillips had been "extremely fit" and "fiercely independent" prior to his diagnosis, exhibiting his artworks and attending social dancing up to five nights a week.

"His regimented and organised life has been thrown into complete disarray, and his former personality and life have been switched off like a light," the judge said.

She awarded Mr Phillips $350,000 in general damages, plus more than $152,700 in future care costs.

James Hardie was ordered to pay $664,400 in total, taking into account past expenses and care, and interest. The company will have 28 days to appeal.

With AAP

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