Kernebone v Orica Australia Pty Ltd [2004] NSWDDT 9

Dust Diseases Tribunal of New South Wales

CITATION : Kernebone v Orica Australia Pty Ltd [2004] NSWDDT 9 PARTIES : Franis Ellis Kernebone Orica Australia Pty Ltd MATTER NUMBER(S) : 360 of 2003 JUDGMENT OF: Johns J at 1 CATCHWORDS: :- LEGISLATION CITED: CASES CITED: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; Griffiths v Kerkemeyer (1977) 139 CLR 161 DATES OF HEARING: 10 & 17/12/2003 & 12/02/2004 EX TEMPORE JUDGMENT DATE : 02/12/2004

FOR PLAINTIFF:Mr B Hughes instructed by W G McNally & Co. LEGAL REPRESENTATIVES: FOR DEFENDANT: Mr H Kelly, SC instructed by Hunt and Hunt.

JUDGMENT: 1. This is an action in damages by Francis Ellis Kernebone against Orica Australia Pty Limited formerly known as ICI Australia Operations Pty Limited. The action arises as a consequence of the plaintiff being exposed to and inhaling asbestos dust and fibre at the premises of the defendant in the course of the plaintiff's employment with the defendant. 2. The defendant in this matter does not contest the issue of liability. 3. Given the evidence in this case it seems to me that the defendant took an eminently sensible position in relation to the question of liability. I have already indicated to counsel that I have concluded that the case was sensibly presented. The issues that remain as between the parties have been as a consequence shortened to the point where I am to deal purely with general damages relating to pain and suffering and loss of expectation of life. 4. The plaintiff suffers from mesothelioma. It is an incurable and fatal disease. The disease will inevitably result in the complete debilitation of the plaintiff and require high doses of opiate medication for pain management with extremely unpleasant side effects. As the disease progresses and the tumour grows the plaintiff's pain will become greater. 5. The plaintiff was born on 22 April 1939. He married his wife in 1966. They have four children, the first two of whom were adopted and cared for by the plaintiff and his wife. There are two grandchildren in the family and it is obvious to me that there is a close bond between the plaintiff and his wife, and indeed I would conclude in relation to the whole family. Their marriage has obviously been one of mutual success, that is to me obvious from the evidence that has been given in this case by the plaintiff. The relationship of the plaintiff and his wife has undoubtedly been made somewhat closer by the serious medical conditions that have been suffered by the plaintiff's wife. 6. In 1987 the plaintiff's wife underwent a double mastectomy. Dr Rudovitz in Exhibit PX3 details Mrs Kernebone's initial treatment which he described as bilateral carcinomatous of the breast undergoing bilateral mastectomies from which she received chemotherapy under the care of Professor Martin Tattersall. She has since that time been well but in 2001 developed a lesion which was compatible with metastatic squamous carcinoma. He details the nature of the condition in 2003 and its prognosis in that report. 7. Mr Kernebone has cared for his wife who was also physically disabled as a consequence of the radical surgery that she underwent, and in more recent times until his own diagnosis was also caring for his wife in relation to her present condition. The family have been supportive. One son lives in a granny flat at the family home and appears to provide some assistance for both the plaintiff and his wife. 8. The plaintiff himself was feeling generalised aches and pains in his chest for a period of two to three weeks in July 2003. After examination by his General Practitioner there was a suggestion of a moderate right pleural effusion which was later confirmed by x-ray. A subsequent CT scan confirmed the abnormality. 9. Dr Rudovitz describes the tests that took place to gather the information needed to form a conclusive diagnosis. There was a presumed lung cancer which was thought to be isolated and early. The plaintiff was referred to Dr Richard Chard to consider thoracotomy and resection. 10. There was an initial thoroscopy. Dr Chard found evidence of extensive fibrotic pleuritic reaction and biopsies of the resection confirmed a malignant mesothelioma. The plaintiff then underwent a right thoracotomy after which the pathology confirmed the malignant mesothelioma. The nature of this operative procedure has been explained an innumerable number of times before this Tribunal. It is a major procedure with painful side effects and undoubtedly at times exquisite pain. 11. The plaintiff has suffered some numbness in the anterior walls since the thoracotomy. He only admits to a small amount of pain in the chest on movement or exertion and has managed reasonably well in terms of pain management. He has not yet, or has been at any stage except for a short period after the operation, had the need for opiate painkillers. He has undergone a number of chemotherapy treatments, the side effects of which he has described. The plaintiff has had after a period of time, a reasonable recovery from the side effects of the chemotherapy. 12. It is however, to be understood that the chemotherapy is not a curative measure and it may be questionable as to whether the chemotherapy is a regime which will necessarily prolong his life. It is fair to say, if I could put it in more vernacular terms, the plaintiff seems at least at the moment to be 'travelling', in terms of the context of this disease, reasonably well. The medical evidence does not seem to suggest that the prognosis in terms of the length of the plaintiff's remaining life is any different than one might reasonably expect given this condition. 13. The plaintiff has I think, exemplified some stoicism in the manner in which he has given his evidence. He is obviously sustained by a personal Christian faith but at the same time he has also described in his terms the nature of the losses that he feels and will feel as a consequence of the shortening of his life. The personal relationships in terms of family, children and grandchildren, form the most significant part of this man's life. It is a loss that undoubtedly he feels greatly. 14. Initially when the plaintiff gave evidence he described his reaction to his diagnosis in terms of disappointment. I thought when a similar question was asked of him today it more aptly described what he was really feeling, particularly when he said today that he felt intensive disappointment. 15. The plaintiff in my view is undoubtedly quite devastated by the nature of his condition, and by the fact that he is informed of the hopelessness of it and its consequence. His future is bleak, it is hopeless. In terms of the future there will be increasing breathlessness, a significant aspect of which he has experienced the first signs. There will be increasing restriction of movement which is a characteristic feature of this disease, and pain will increase in its severity. 16. In circumstances such as this case the mesothelioma which affects the pleural surface of his lung will be the subject of a more significant area of pain. The magnitude of the area gives an index of the severity of the discomfort which will grow worse as time goes on. There will be an increase in the necessity for the use of morphine and like drugs, and as I have said, the plaintiff will become more restricted as the mesothelioma progresses. There will be side effects as I have also indicated that opiates will be required. The increasing breathlessness will be of significant proportions and will add to a marked degree to his pain and suffering. 17. These are not cases in which one compares and contrasts suffering between one person and another, even with the same disease. The general damages fixed in this case, as in any case, are fixed by consideration of the injury done to the plaintiff. It is not only the injury that relates to his physical pain but the damages for his injured feelings, including the hurt, anxiety, loss of self esteem, sense of indignity and the sense of outrage felt by the plaintiff as described by Chief Justice Brennan in Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 71. 18. All the aspects for consideration in relation to the plaintiff's damages have been considered. Given the nature of the life tables the plaintiff at age 64 is at a time of life where he could have expected, or ought to have expected, that he would have a number of years of rewarding experiences and times with his family and his grandchildren. These are now denied him. 19. It is also to be considered that the plaintiff has been diagnosed with two other conditions, at least in terms of what his normal expectation of life would have been, but for his mesothelioma. There was an early diagnosis in the early nineties of cardiomyopathy. My own view on reviewing the medical evidence in this case is that it is of little or no significance in terms of his life expectancy. Professor Bryant for instance, felt that he had no clinical findings to indicate any cardiac disease. 20. The plaintiff was diagnosed with multiple myeloma in March 2003. Professor Tattersall gives evidence that although it is asymptomatic there is the prospect of this condition being the cause of the plaintiff's earlier demise than would otherwise have been the case. 21. That matter has to be taken into consideration when determining a sum for loss of expectation of life. That sum has been indicated by authority to be modest in any event. 22. As these cases go it seems to me, given the personal circumstances of the plaintiff and the sense of loss that he feels in regard to them, the appropriate award to be made in respect of pain and suffering is $180,000 upon which there is to be 2 per cent interest for eight months on half the sum. 23. In dealing with the question of loss of expectation of life I have already indicated that one is constrained by authority to give weight to questions of moderation and ideas of fairness as one does in respect of the assessment of general damages. Taking into account the life tables, given the plaintiff's age and the conditions to which I have already referred, I think that an appropriate sum in this case is $10,000 for loss of expectation of life. 24. The parties have agreed that the sum of $110,000 is to be awarded in respect of the entitlements of the plaintiff in relation to special damages. 25. The plaintiff is entitled to a verdict therefore, made up as follows: General damages $180,000 Interest on half the sum at 2 per cent for eight months $1,200 Loss of expectation of life $10,000 Griffiths v Kerkemeyer (1977) 139 CLR 161 and other special damages as agreed $110,000 TOTAL $301,200 26. There will be verdict and judgment for the plaintiff against the defendant in the sum of $301,200. 27. I order the defendant to pay the plaintiff's costs as agreed.