‘Hug of death’ asbestos case in Appeal Court
Four years after she died from a deadly asbestos condition from hugging her father, whether Deanna Trevarthen should have ACC cover is back before the courts.
The Accident Compensation Corporation lost a High Court appeal last year after Justice Jill Mallon said that Trevarthen’s condition, mesothelioma, was caused by inhaling asbestos fibres and if that was an accident then she was covered.
Trevarthen’s father was an electrician and she would hug him when he came home wearing his work clothes, and sometimes she would play at work sites. To get cover under accident compensation law she needed to show the mesothelioma that killed her was a personal injury caused by an accident.
Trevarthen, 45, was among the youngest in
New Zealand to die from the aggressive form of cancer directly linked to asbestos.
When she died in 2016 she had claimed ACC for a range of entitlements such as treatment costs, weekly compensation, a lump sum and funeral costs.
Her sister-in-law, Angela Calver, who is executrix and trustee of her estate, took up the fight after Trevarthen’s death. Yesterday, ACC lawyer Paul Radich QC said it was accepted the fibres had entered her body and that it was there but he questioned whether it caused damage to the body when it entered. ‘‘Perhaps the answer is yes but it needs the evidence.’’ He said that evidence was the missing link that would mean there could be cover as an accident.
‘‘Did the inhalation of the fibre cause damage, in and of itself, or was it the fact there was no damage and then a process of some sort?’’
Calver’s lawyer,
Beatrix
Woodhouse, said she did not see that the High Court ruling, if allowed to stand, would affect anyone other than someone suffering from mesothelioma.
She said that just because the asbestos related disease could be latent, did not mean it did not exist at the point in time the ACC cover would be affected.
The court reserved its decision. After the hearing Calver said yesterday was the fifth anniversary of Trevarthen’s first round of chemotherapy.
She also said they were still locked in dispute with ACC over the cost of a specialised drug Keytruda for which the family had fundraised thousands of dollars.