Dust Diseases Tribunal of New South Wales CITATION : John Downes v Amaca Pty Ltd [2008] NSWDDT 25 PARTIES : John Downes (Plaintiff) Amaca Pty Ltd (Defendant) MATTER NUMBER(S) : 6097 of 2006 JUDGMENT OF: Curtis J at 1 CATCHWORDS: DUST DISEASES TRIBUNAL :- assessment of damages - claim on Dust Diseases Board Workers Compensation (Dust Diseases) Act 1942 LEGISLATION CITED: Workers Compensation Act 1987 Dust Diseases Tribunal Act 1989 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 CASES CITED: Bresatz v Przibilla (1962) 108 CLR 541 Sharman v Evans (1977) 138 CLR 563 DATES OF HEARING: 15/7/08-16/7/08, 9/9/08-10/9/08, 29/9/09. DATE OF JUDGMENT: 1 October 2008 Mr G F Little SC instructed by Turner Freeman appeared for the plaintiff LEGAL REPRESENTATIVES: Mr G M Watson SC instructed by DLA Phillips Fox appeared for the defendant JUDGMENT: Dust Diseases Tribunal of New South Wales Matter Number 6097 of 2006 John Downes v Amaca Pty Ltd 1 October 2008 JUDGMENT CURTIS J The plaintiff, Mr John Downes, was employed from 1958 until about 1960, and also from about 1962 until 1963, by the Active Bag Company at Mascot. A large part of the company's business was cleaning hessian bags which formerly held raw asbestos fibre. These were purchased from Amaca Pty Ltd. The work was extremely dusty. Mr Downes, who is now nearly 73 years of age, has contracted asbestos related diseases which became symptomatic probably in about 2005. He sues Amaca for damages. Liability is not in issue. Mr Downes was also exposed to asbestos dust and fibre in work as a foundry man. This exposure has contributed to his disease. General Damages I am persuaded that Mr Downes suffers from moderate to severe pain caused by pleural plaques and mild breathlessness caused by extensive diffuse pleural thickening. He probably does have some of the first signs of developing asbestosis. He is not at the present time greatly disabled, although his lung function continues to deteriorate and the consensus of medical opinion is that his symptoms and disabilities will increase. There is some reason to suspect that Mr Downes' pain is not caused by pleural plaques, but rather by a crush fracture in his upper spine. In the absence of an examination and opinion from an orthopaedic surgeon, however, the largely circumstantial evidence does not lead me to actual persuasion that I should reject the considered opinion of the treating pain specialist, Professor Theresa Crammond. The present degree of Mr Downes' asbestos related breathlessness is mild. I believe he has exaggerated his symptoms to the examining doctors and in his evidence. The difficulty in assessing general damages is caused by the uncertainty of future developments. Because Mr Downes will relatively soon experience increasing breathlessness and disability caused by the inevitable progression of his disease, this is not a case for modest damages. Pervasive breathlessness is debilitating and often very disturbing. Mr Downes will continue to suffer from the plaque pain, which at times requires strong analgesia. These afflictions will darken each day of the remaining 14 years of his predicted existence. An appropriate amount of general damages is $100,000. Mr Downes may develop severe asbestosis which will greatly aggravate his sufferings and then kill him. Dr Allen thinks this is probable; Dr McEvoy thinks it only possible. I am not entirely persuaded by Dr Allen. His lung function tests consistently report greater pathology than those carried out in other laboratories. He has accepted the complaints of Mr Downes at face value. I do not. The objective testing by Dr McEvoy, and the concessions of Mr Downes in cross-examination to my mind demonstrated his exaggeration of his symptoms to the examining doctors and to the court. Because of Dr McEvoy's reservations, and because the radiological appearances have not changed over recent years, I am not persuaded that rapid development of asbestosis is probable. I propose to apply a Malec v JC Hutton calculus of 50 per cent. If the contingency were to eventuate, an appropriate amount of general damages would be $200,000. This is $100,000 more than appropriate if it does not. Half of $100,000, $50,000, should be added to $100,000 and general damages assessed in the sum of $150,000. If Mr Downes were to die in about seven years as a result of his asbestos-related diseases, he would be entitled to damages in the sum of $7,000 in respect of loss of expectation of life. A contingency of $3,500 should be allowed in this regard. I allow interest on $30,000 of the general damages for three years at 2 per cent. This comes to $1,800. Past out-of-pocket expenses These are agreed in the sum of $17,405.05 Future medical expenses These expenses must also be calculated in accordance with the contingencies of disease progression and life expectancy. Upon the assumption that Mr Downes lives a further 14 years and does not become severely ill. The continuing cost of pain medication is unclear. Mr Little relies upon an opinion expressed by Dr J Bradley, in a report to the defendant's solicitors, that the continuing cost is in the range of $500-$3,000 per year. It was open to the plaintiff to prove the actual cost of this discrete item to date. This was not done. In the circumstances I think it appropriate to allow the lesser figure. On the 3 per cent tables $10 per week over 14 years (multiplier 598.3) discounted 15 per cent, amounts to $5,085. The cost of monitoring various stages of asbestos related diseases is set out in a report by Dr Allen of 19 October 2007. I propose to accept the costing set out in what is described as Document A page 3 of 6 Consultations Visits to general practitioner; 2 each year at $58. $116 Visits to thoracic physician; (annual) $110 Investigations Chest radiograph; (annual). $126 CT scan of chest (annual) $925 Lung function tests (annual) $540 These expenses total $1,807 per year. This is about $35 each week. On the 3 per cent tables (multiplier 598.3) this amounts to $20,940. Discounted by 15 per cent, this amounts to $17,800. Upon the assumption that Mr Downes becomes gravely ill and dies in seven years I accept the plaintiff's submission that upon this assumption the future cost of medical attention for Mr Downes' asbestos related diseases, excluding pain relief, will be $90,000. This is not much more than the other estimate of Dr McEvoy, which was $80,000. The majority of that cost however will not fall upon the plaintiff's purse for some time. I think the best way of approaching the problem is to apply the 3 per cent deferral tables to the whole sum for three years. The multiplier is 0.915, and the result $82,350. The 15 per cent discount reduces this to $69,997.50. Allowing for the 50-50 chance that the plaintiff will not require this expenditure, he is entitled to an additional sum of $34,998, rounded out to $35,000. When this is added to the previous figure of $17,800 the plaintiff is entitled to an award of $52,800 in respect of the future costs of treating his asbestos related diseases. This is to be added to the sum allowed in respect of pain relief, $5,085 giving a total of $57,885. Cost of care and services Upon the assumption that Mr Downes has a normal life expectancy and does not become severely ill. Mr Downes stands in no present need of care or services. It is reasonable to suppose that in some two years time, as his condition worsens, he will require some assistance with gardening, shopping, heavy cleaning and washing. I allow seven hours per week at the rate of $23.09 per hour, $161.63 per week. Over 14 years on 3 per cent tables (multiplier 598.3) this amounts to $96,703. Deferred for two years (multiplier 0.943) and discounted by 15 per cent, the sum is $77,512. Upon the assumption that Mr Downes becomes gravely ill and dies in seven years Upon this assumption I allow seven hours per week for two years, commencing on 1 January 2011, $161.63 per week, multiplier 101.3 ($16,373) deferred two years, multiplier 0.943 ($15,440) discounted 15 per cent $13,124. For the next two years I allow 14 hours per week in respect of gardening, shopping, cleaning, washing and cooking, $323.26, multiplier 101.3 ($32,746) deferred four years, multiplier 0.888, ($29,078) discounted 15 per cent $24,717. For the final year I allow for gardening, cleaning, washing, cooking , and nursing at eight hours per day: $1293.04 for one year, multiplier 51.4 ($65,997) deferred six years, multiplier 0.837 ($55,239) discounted 15 per cent $46,953. The total is $84,794. That is only $7,282 greater than the amount of $77,512 calculated upon the more favourable assumptions. On a Malec v JC Hutton calculus the plaintiff should receive $77,512 plus $3,641, a total of $81,153. Deduction for contingencies Mr Little SC for Mr Downes, relying upon Bresatz v Przibilla (1962) 108 CLR 541 and Sharman v Evans (1977) 138 CLR 563, has argued that in the calculation of the cost of future medical expenses and future care no allowance should be made for contingencies. My attention is drawn to a passage in Bresatz , (a case concerned with a claim for future loss of earnings), where Windeyer J said "All "contingencies" are not adverse: all "vicissitudes" are not harmful. A particular plaintiff might have had prospects or chances of advancement and increasingly remunerative employment. Why count the possible buffets and ignore the rewards or fortune? Each case depends upon its own facts" (at 544) In the present case I have calculated future medical expenses on two bases. The first is upon a favourable prognosis. It is reasonable to suppose that, even if the outcome is favourable, there is a finite chance that some other mishap or illness may curtail Mr Downes' life in which case the sum awarded would prove to be excessive. I believe a 15 per cent deduction against this possibility is reasonable. In Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 643 Deane, Gaudron and McHugh JJ said that: "If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high-99.9 per cent-or very low-0.1 per cent. But unless the chance is so low as to be regarded as speculative-say less than 1 per cent or so high as to be practically certain-say over 99 per cent-the court will take that chance into account in assessing the damages." In calculating the cost of future medical treatment in the event of an unfavourable prognosis I have accepted the estimates of Dr Allen in his worst case scenario. There is no room for the contingency that the expenses may be greater. There is only room for the contingencies that either Mr Downes may not get that ill, or that some supervening event leads to his premature death. In either case it is appropriate to deduct 15 per cent in conformity with Malec v JC Hutton. In forming any view as to the cost of care, it must be accepted the actual need for care may ultimately be greater or less than the assumed need upon which the cost is calculated. The vicissitudes are evenly balanced. In addition to those vicissitudes however, an allowance must be made for the possibility of supervening incapacity or death. It is in response to that contingency that 15 per cent should be deducted. Sullivan v Gordon Mr Downes' wife suffers from severe emphysema and has a life expectancy of about three to four years. Mr Downes presently attends to the heavier domestic tasks formerly performed by his wife. As his disease progresses he will be unable to provide this assistance. A claim is made for the cost of providing attendant care and assistance to Mrs Downes for eight hours each day during the last year of her life. Provision has already been allowed for the cost of providing domestic services to Mr Downes when he becomes incapable of performing those services for himself.. The allowance of seven hours each week in respect of the provision of these services, (gardening, cleaning, and laundry) is sufficient to provide common services to the household. Mr Downes does not have the training, experience or skill to provide nursing and medical attention which Mrs Downes will ultimately require. I award no damages under this heading. Summary of damages General damages $150,000 Interest on general damages $1800 Loss of expectation of life $3500 Past out-of-pocket expenses $17,405.05 Future medical expenses $57,885 Future care and services $81,153 Total $311,743.05 Apportionment I believe Mr Downes has exaggerated his evidence in relation to present symptoms. After his cross-examination I came to the view that he had consciously minimised the extent of his asbestos exposure when working in foundries before and after his employment at the Active Bag Company. Although I accept that his exposure at the Active Bag Company was far more intense than his exposure at the foundries, I am unable to accept his evidence of this exposure at face value. I apportion his damages 85 per cent to the defendant. Recovery pursuant to the Workers Compensation (Dust Diseases) Act 1942 The once and for all rule which governs the award of damages in a common law action is appropriate in most cases because of the absence of a practical alternative scheme by which future expenses could be paid by the tortfeasor as and when they are incurred. The rule may however unfairly penalise a plaintiff who receives a modest sum to cover future medical expenses which later turn out to be far greater than envisaged as the trial, or a defendant who pays an excessive sum to protect the plaintiff against medical contingencies which never arise. s8 of the Workers Compensation (Dust Diseases) Act 1942 provides that where the Medical Authority constituted under the act certifies that a person is disabled by inhalation of dust, that person is to be paid, from a fund managed by the Dust Diseases Board, the cost of medical or related treatment in accordance with the benefits prescribed by the Workers Compensation Act 1987. s59 of the Workers Compensation Act 1987 defines medical and related treatment to include care in the worker's home directed by a medical practitioner, and domestic assistance services. If Mr Downes is certified as disabled by the Medical Authority, his past and future medical expenses, and the future cost of his care and services will be paid by the Dust Diseases Board. The cost of past expenses and the present value of future expenses will be deducted from his award of damages. The defendant does not escape liability. By force of s8E(3) of the Act, it is liable to pay to the Board an amount equal to the amounts so deducted. In 2007 Mr Downes applied to the Dust Diseases Board for these benefits. The Medical Authority then certified that he had not contracted a dust disease within the meaning of the act. The Board proposes to recall him for a further medical examination in August 2010. The conclusion of the Medical Authority that Mr Downes was not disabled by a dust disease was based in part upon a medical examination and report by Dr McEvoy. When he prepared that report Dr McEvoy was of the opinion that, although Mr Downes' lung function was below average, it was nevertheless in the normal range. He has since changed his mind. I think it probable that if Mr Downes reapplies to the Dust Diseases Board he will be certified as disabled and entitled to receive the prescribed benefits. In the circumstances I believe it appropriate to award damages based on this probability, deducting from his award of damages the cost of past medical treatment and the present value of future medical expenses and domestic assistance. Mr Watson SC for Amaca has undertaken that, should the Dust Diseases Board refuse the further application, Amaca will not oppose an application for reconsideration pursuant to s13(6) of the Dust Diseases Tribunal Act 1989 pursuant to which the award of damages will be increased to accord with my findings as to the cost of medical treatment, care and domestic services. After deduction of the amounts otherwise allowable for past and future medical expenses, and for future care and services, the plaintiff's damages are assessed in the sum of $155,300. He is entitled to judgment for 85 per cent of this sum, that is, $132.005. Orders Judgment for the plaintiff in the sum of $132,005. Liberty to apply for variation pursuant to s13(6) of the Dust Disease Tribunal Act 1989. Defendant to pay the plaintiff's costs. I will hear the parties as to the appropriate order. Mr G F Little SC instructed by Turner Freeman appeared for the plaintiff Mr G M Watson SC instructed by DLA Phillips Fox appeared for the defendant DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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