Dust Diseases Tribunal of New South Wales CITATION : Gassman v State Rail Authority of NSW and Anor [2002] NSWDDT 13 Henry Gassman PARTIES : State Rail Authority of New South Wales Amaca Pty Ltd (FKA James Hardie & Coy Pty Ltd) MATTER NUMBER(S) : 89 of 2002 JUDGMENT OF: Maguire J at 1 CATCHWORDS: Damages :- Employer and Employee - Asbestos Exposure - Mesothelioma Damages - Assessment of damages LEGISLATION CITED: CASES CITED: DATES OF HEARING: 22/07/2002, 23/07/2002 EX TEMPORE JUDGMENT DATE : 07/24/2002 FOR PLAINTIFF: Mr B H Hughes instructed by McLaughlin & Riordan LEGAL REPRESENTATIVES: FOR FIRST DEFENDANT Mr T J Morahan instructed by Dexter Healey FOR SECOND DEFENDANT: Mr T G R Parker instructed by Phillips Fox JUDGMENT: 1. The plaintiff Henry Gassman brings this action for damages for negligence against the State Rail Authority and Amaca Pty Ltd formerly known as James Hardie & Coy Pty Ltd. 2. It is common ground that he was exposed by each of the defendants to the inhalation of asbestos dust and fibre and as a result contracted mesothelioma, a disease of the pleura, which in his case affects his right lung. It is beyond doubt that this disease will cause the plaintiff's death. His symptoms first emerged in mid 2001. I find as a fact that his death will occur about the end of November 2002. 3. The following matters of fact are all common ground. 1. The plaintiff was born at St Marys in New South Wales on 10 June 1919. It follows that he is now 83 years old. 2. He attended Penrith High School leaving at the age of 15 years. 3. In 1934 he was employed as a farm labourer at Erskine Park. 4. In 1935 the plaintiff was employed as a builder's labourer on a cottage construction in St Marys. 5. He was then unemployed for about 12 months. 6. In 1937 the plaintiff was employed by Ducon Condensers as a cleaner. 7. In 1938 the plaintiff was employed as an apprentice motor body builder by Peter Brothers, working on the construction of panel vans, ambulances and army vehicles. At the same time he attended the Granville Technical College and completed a course in carpentry. 8. On 27 June 1942 the plaintiff married and that marriage is still on foot after over 60 years. 9. On 16 June 1944 the plaintiff enlisted in the Royal Australian Air Force. He completed training in Townsville and served overseas at Morotai in the then Dutch East Indies working on the repair of salvaged motor vehicles. 10. In November 1945 he returned to Australia. 11. In February 1946 the plaintiff was discharged from the Air Force. 12. On 11 March 1946 the plaintiff commenced employment with the first defendant where he remained for 33 years. 13. In 1946 the plaintiff built a garage on a block of land at 38 Avoca Street, Yagoona, using Wunderlich flat sheet. He and his wife and their then two children lived in the garage. 14. Between 11 March 1946 and 28 March 1948 the plaintiff was employed by the first defendant in the mechanical branch of the carriage workshops at Eveleigh. After a massive hailstorm on 1 January 1947 the glass panels in the shed roof where the plaintiff worked were smashed and in the weeks following they were replaced with fibro sheets which were cut and/or snapped in the presence of the plaintiff who was exposed to dust during that process. 15. Between 29 March 1948 and 16 June 1959 the plaintiff was employed as a carpenter in the mechanical branch of the Eveleigh running sheds. In the course of the plaintiff's employment he worked near other workers who were using asbestos containing materials on the repair of steam locomotives. Their work caused asbestos dust and fibre to be liberated into the atmosphere and it was inhaled by the plaintiff. The plaintiff brushed lagging with his clothes whilst working and repairing steam locomotives. 16. In 1947 the plaintiff commenced building a house on the block where he already lived in the garage at Yagoona. This was done with materials which included fibro sheets supplied by the second defendant. 17. In 1952 the plaintiff built a back verandah on the same house using fibro products supplied by the second defendant. 18. In 1962 the plaintiff erected a cottage at Cudmirrah on the South Coast of New South Wales. In the course of that construction he cut, drilled, rasped and manipulated asbestos cement products manufactured by the second defendant thereby liberating asbestos dust and fibre into the atmosphere, some of which he inhaled. 19. On 14 July 1979 the plaintiff retired from his employment with the first defendant. Thereafter he enjoyed tennis, bowls, gardening, travelling and other leisure activities. 20. In 1989 the plaintiff underwent surgery on his face and head for the treatment of skin cancer, from which he is now completely recovered. 21. In September 1999 the plaintiff moved to his present house in Magnolia Drive, Picton, where I took his evidence last Monday. 22. In mid 2001 the plaintiff experienced breathlessness and developed pain in the right side of his chest. 23. On 4 July 2001 the plaintiff attended Dr Whitton, a general practitioner. 24. On 11 July 2001 the plaintiff attended Dr Whitton who referred him to Dr Aouad, a specialist thoracic physician. 25. The plaintiff again attended Dr Aouad on 13 July 2001 and was admitted to Campbelltown Hospital where fluid was drained from his lungs. 26. On 17 July 2001 the plaintiff was readmitted to Campbelltown Hospital under the care of Dr Aouad. 27. On 27 July 2001 the plaintiff was transferred to Liverpool Hospital and came under the care of Dr French, a cardiothoracic surgeon. 28. On 31 July 2001 the plaintiff was taken to theatre, fluid was drained from his lungs, talc pleurodesis was performed and a fine needle biopsy was performed. 29. On 14 August 2001 the plaintiff was discharged from hospital after a total of 27 days. He was informed that he had a pleural disease, either cancer or mesothelioma. 30. On 18 January 2002 the plaintiff attended Associate Professor Bryant, who is a thoracic physician. 31. On 15 April 2002, 1 May 2002 and 22 May 2002 the plaintiff attended Dr Hague, a psychiatrist at Campbelltown, to whom he was referred by his general practitioner. Dr Hague provided certain treatment and medication. 32. Between 6 June 2002 and 18 June 2002 the plaintiff was again in hospital, this time at the Camden Hospital Palliative Care Ward. 4. On 21 June 2002 Dr Peter Gianoutsos, a specialist thoracic physician attended the plaintiff at his home. 5. Professor David Bryant saw the plaintiff on a number of occasions earlier this year. At first he was uncertain of the diagnosis, however, on 16 July 2002 he reported: It is therefore my opinion that on balance of probability the plaintiff suffers from a malignant pleural process. This could be either a mesothelioma or a bronchogenic carcinoma. However, in view of the gradual nature of the change and in view of the pattern of the pleural changes on the CT scan I believe it is more probable than not that he has a malignant mesothelioma. 6. On 24 June Dr Gianoutsos reported his diagnosis of mesothelioma. He reported in part further: It may also be with his age there is a slower progression of the malignant process. Further: Prognosis Increasing breathlessness, increasing pain, coupled with a general overall sense of extreme fatigueability would make me inclined to believe this man will die within six to 12 months from progression of the notice of malignant mesothelioma. As stated earlier in this report the average period of time between diagnosis and death from malignant mesothelioma is usually six to 18 months but occasionally the process may be more prolonged. It is probably true his initial symptoms back in December 2000 were directly attributable to his malignant mesothelioma when he first complained to his local medical officer of right lower chest wall pain. Further: The palliative care have been called in to be of assistance and his wife provides excellent supervisory care of his medications, prepares his meals, carries out all the domestic chores including the gardening, general housework, washing and ironing. It may well be in the near future she will require some help as far as domestic and gardening activities are concerned. 7. On 31 May 2002 Dr Hague reported in part as follows: I first assessed Henry Gassman on 15/4/2002 following referral by his GP Dr Louis Whitton of 68 John Street, Camden. History: This 82 year old man had become depressed around the time of biopsy in July 2001 for a possible mesothelioma. He reported some pain in his right abdominal region, he reported a marked loss of energy and interest in activities. There was an initial weight loss of one and a half stone with initial loss of appetite. Pain was a significnat problem, not relieved with morphine previously, which had the side affects of nausea and constipation. Further: Past psychiatric history: He had never been treated for any psychiatric condition previously. Social situation: He lives with his wife who is supportive. He has never been a drinker nor smoked since leaving the air force. He used to enjoy sports, actively playing tennis and bowls, although he had not had enough energy to play since June 2001. Personal history: He was born in Sydney, was the second youngest in his sibship with six sisters. His mother died at the age of 96 years, his father died at the age of 78 years following a fall. He described his childhood as a happy one, father working initially as a motor builder. He attended high school in Penrith. He had no difficulties in learning at school, made friends, enjoyed cricket. At the age of 15 years he took up an apprenticeship as a body builder, joined the air force from 1944 to 1946 and subsequently worked in the railways for 33 years as a carriage builder. He describes coming into contact with asbestos during the time in the railways and also when doing some home building as well. He has four children, two sons and two daughters with whom he maintains a good relationship. Examination of mental state on 15/4/2002. On examination he is a pleasant man, alert and orientated. There is marked scarring following the removal of skin lesions around the left ear, also some scarring from tissue removed from forehead transplanted to nasal regions. He appears thin, he is dysphoric in mood, he has a marked lack of energy, which is a main complaint. He does not have any significant anxiety symptoms, his memory is within normal limits. Diagnosis: This 82 year old man was suffering from an adjustment disorder with depression caused by serious physical illness, possibly a mesothelioma. Significant pain was poorly controlled and both the patient and his wife were unsure of the diagnosis and appeared to need further clarification on this matter. I had no detailed information on his physical condition nor physical diagnosis but was informed by the patient that it was related to his exposure to asbestos during his employment with the railways. Treatment advised: I advised increased dose of anti-depressant to Dothep 75 milligrams at night with Temaze 10 milligrams at night. Progress: On 1 May 2002 he appeared to have improved a little in mood although pain, weakness and lack of energy remain significant problems. He had enjoyed a five day holiday. He had experienced a fall tripping and blacking out briefly after hitting his head on tiles. No fracture was detected. On 22 May 2002 he was stable in mood although abdominal pain was increasing. I advised continuation of the Dothep 75 milligrams and Temaze 10 milligrams at night. Prognosis and further treatment: The adjustment disorder with depression is currently stable. He should continue on the (drugs). The prognosis for his physical condition should be advised on by the appropriate physician. I advised the GP that if his condition was terminal palliative care services may be required. Relationship between depression and mesothelioma: The adjustment disorder with depression is caused by the physical illness which the GP indicated was a mesothelioma. It is frequently observed up to 50 per cent of cases of carcinoma, particularly untreatable or terminable conditions when accompanied by significant pain cause depressive conditions such as in the case of Henry Gassman. 8. It is not argued by either defendant that there should not be a judgment against it in favour of the plaintiff. The evidence discloses all the elements necessary for the plaintiff to establish his case against each defendant. That leaves only the assessment of damages. 9. It is noted that in respect of claims for past and future medical treatment expenses that these have been paid or will be paid by the Department of Veterans affairs and the Dust Diseases Board respectively. It is agreed between the parties that I should award $47,500 in respect of all past and future gratuitous care (including interest thereon). That leaves for decision only the amount of general damages and the amount to be awarded for loss of expectation of life. 10. The plaintiff has led a long, happy, active and useful life. He comes from a family who include a number of long livers. Photographs in evidence disclose last year the fruits of his gardening. These can be compared very favourably with the evidence of the way the garden appeared when he first moved into his present home in 1999 and with the relatively neglected state of the same garden which I observed for myself on Monday. The evidence also shows the plaintiff at an advanced age being remarkably active in other leisure activities. All of this is being gradually denied to him. In nearly nine years in the Tribunal I have taken evidence at the deathbed of some hundreds of plaintiffs who have suffered from mesothelioma. All have been within months prior to their deaths, many much closer, some within hours. For the plaintiff there is no escape from an increasingly painful progression towards his end. In the final stages every breath will produce agony. He is already suffering from the expected premature separation from his loving wife of over 60 years. His mental state may be somewhat improved as a result of Dr Hague's treatment but on Monday he was at times close to tears. 11. Mr Hughes of counsel for the plaintiff seeks an award of $170,000 for general damages. Mr Parker of counsel for the second defendant argues for some lesser sum. Doing the best I can I award the sum of $165,000 for general damages. 12. The latest lifetables available to me suggest that but for his illness a man of the plaintiff's age could expect to live six point two years. I find that Mr Gassman would have done better than that. Doing the best I can I award the sum of $15,000 for loss of expectation of life. 13. There will be judgment for the plaintiff against each defendant for the sum of $227,500 plus costs. Mr B H Hughes instructed by McLaughlin & Riordan appeared for the plaintiff Mr T J Morahan instructed by Dexter Healey appeared for the 1st defendant Mr T G R Parker instructed by Phillips Fox appeared for the 2nd 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.