Dust Diseases Tribunal of New South Wales CITATION : Muller v Power Technologies Pty Ltd [2008] NSWDDT 21 PARTIES : Michael James Muller v Power Technologies Pty Ltd (formerly known as ICAL Ltd) MATTER NUMBER(S) : 8175 of 2008 JUDGMENT OF: Kearns J DUST DISEASES TRIBUNAL - Proceedings :- mesothelioma; rapidly deteriorating condition, including substantial loss of weight; CATCHWORDS: reasonable, not life style preference, is the test for recovery of damages for loss of services; issue as to when the plaintiff first needed personal care and domestice assistance and the extent of care required; s15B Civil Liability Act damages not allowed as threshold not satisfied and no evidence the plaintiff's wife unable to perform the services; application for compensation to the Dust Diseases Board, outcome not yet notified, leave to apply for a reconsideration. LEGISLATION CITED: Civil Liability Act 2002 DATES OF HEARING: 10/07/2008; 24/07/2008; 25/07/2008; 29/07/2008 DATE OF JUDGMENT: 25 July 2008 EX TEMPORE JUDGMENT DATE : 29 July 2008 Mr J Sharpe, instructed by Turner Freeman, appeared for the Plaintiff LEGAL REPRESENTATIVES: Mr T Rowles, instructed by Carroll & O'Dea, appeared for the Defendant JUDGMENT: 1. The plaintiff, Mr Muller, was employed by the defendant, International Combustion Australia Ltd (ICAL), from 1961 to 1985. During that time he deposed to having been exposed to asbestos dust and fibre in the course of his employment. That exposure is amply corroborated by other evidence including, but not limited to, the evidence of Robert Daley Exhibit PX3, and I am satisfied that the plaintiff was exposed to significant asbestos dust and fibre in the course of his employment by the defendant. 2. The plaintiff has been diagnosed as having contracted mesothelioma, and there is no evidence to suggest to the contrary. It is well established in this Tribunal that all exposure, except de minimis exposure, to asbestos causes or materially contributes to the onset of mesothelioma. I am satisfied that the plaintiff's exposure to asbestos with the defendant caused his mesothelioma. For the contraction of his mesothelioma he seeks damages from the defendant. 3. The relationship between the plaintiff and the defendant was such that it is clear that the defendant owed the plaintiff a duty of care. Throughout the time that the plaintiff was employed by the defendant it was foreseeable to the defendant that exposure to asbestos dust and fibre by its employees could produce harmful health consequences to those employees. Such is also a matter that is well established in this Tribunal. There is support for this position also in the plaintiff's s 25B notice Exhibit PX23. 4. It was also the case throughout the plaintiff's employment by the defendant that practical alternatives were available to prevent employees in the position of the plaintiff being exposed to asbestos dust and fibre. In this regard the plaintiff relies, amongst other things, on items 10 and 12 in his s 25B notice. The defendant did not implement any practical alternatives to avoid the plaintiff being exposed to asbestos dust and fibre and nor did it warn him of the dangers of being exposed. In the circumstances I am satisfied that the defendant is liable in damages to the plaintiff for his contraction of mesothelioma. 5. The plaintiff was born on 26 May 1938. He is a married man and he has four children, twelve grandchildren and one great grandchild. He first noticed the onset of symptoms in December 2007. He noticed pain in the left side of his chest and shoulder and he was feeling unwell. He was tired, exhausted and breathless. He also developed a cough. These symptoms continued, and he put up with them, until about the end of March, at which time he noticed a substantial deterioration in his condition. He was also suffering weight loss. The deterioration in his condition was such that he took himself off to hospital on 28 April 2008. He was admitted until being discharged on 12 May 2008. 6. What occurred at the hospital is reasonably well summarised in the report of Dr Crombie, PX7. She notes that investigations included a CT scan of the thorax performed on 28 April 2008. That demonstrated a large lobulated pleural based tumour in the left lung. The left lung was largely collapsed. There was evidence of a left-sided rib fracture with cortical involvement suggestive of a pathological fracture. An ultrasound guided pleural fluid aspiration was performed on 29 April 2008. Thorascopy was undertaken on 5 May 2008 and it was noted that the plaintiff had a frozen left lung with multiple pleural nodules. A tumour decortication was not technically possible because of the amount of tumour involved. 7. Continuing on from Dr Crombie's report she notes that she first saw the plaintiff on 13 May 2008, which was the day after he was discharged from the hospital. She then sets out the medications that he was taking and the side effects and the complications that were arising from some medications. The plaintiff was referred to her radiation oncology colleague for prophylactic radiation. Because of his rapidly deteriorating condition radiation was cancelled. She thought he was not fit for palliative chemotherapy. He was referred to the palliative care service, which saw him first on 23 May 2008 and then on 4 June 2008 when home oxygen was commenced. Dr Crombie again notes the medications the plaintiff was on and his poor tolerance of some medications. At one point his script for medication was changed, and that would seem to have been on 3 June 2008. When that occurred the plaintiff suffered complications including delusions, paranoia, nightmares and aggression. Those matters were a reason that led to his admission to Mt Druitt Palliative Care on 11 June 2008 where he remained until 13 June 2008. His medication was then changed and those particular complications appear to have ceased. 8. Since May 2008 the plaintiff's appetite has deteriorated. It has deteriorated to the point where he now cannot consume solid food or even jelly or ice cream. He has suffered significant weight loss. His wife says that he has lost at least 60 kilograms. I think that as an estimate is excessive. The plaintiff puts his weight loss to the date of his affidavit, PX1, as being about 37 kilograms. It is indeed a significant loss of weight. He continues to suffer from day and night sweats. He has poor circulation to parts of the body resulting in some parts of the body being cool and others hot. He continues to suffer breathlessness. He continues on pain medication as well as medication for complications and side effects. He suffers palpitations. He has difficulty sleeping soundly. 9. He is a man who used to enjoy his life. He used to attend a club on many days. That would appear to be the St Marys Band Club. He used to undertake some tasks on a voluntary basis for that club. He socialised there with his mates. He used to enjoy having a beer with them. He used to work for some beer money at a machine shop at Petersham, and it would seem he did that until about April 2008. He enjoyed family gatherings on Sundays. He used to enjoy visiting his sister's bed and breakfast place at Scone, where he used to visit for about a week at a time. He there enjoyed the relaxation, the open spaces and the walks that that place offered. These matters have been denied to him because of his illness. 10. The plaintiff's life expectancy has been commented on by Dr Crombie Exhibit PX7 and Dr Clarke Exhibit PX8. Dr Crombie has suggested a life expectancy of between one and four months from mid June 2008. Dr Clarke has suggested weeks or a few months from about the same time. It seems to me that relevant to this matter are a number of matters described by Dr Clarke, including the size of the tumour, the rate of progression and the loss of significant weight. Those matters lead me to prefer the view of Dr Clarke, although there is not much between what Dr Clarke says and what Dr Crombie says on one view of it. I do not fix or find any particular date, but I consider a reasonable estimate is to make an allowance until about the end of August or the beginning of September 2008. 11. The course that the illness of mesothelioma takes is well known to this Tribunal and the plaintiff will undergo continuing physical pain and suffering and mental anguish associated with the progression of his illness. The plaintiff relies on, amongst other things, item 22 in his s 25B notice and much of what is in that item is apposite to this case. I need not repeat the detail of it in these reasons. 12. I think a reasonable figure to allow for general damages is $200,000. 13. I allow interest on general damages at the rate of two per cent (2%) per annum for 0.59 years on $100,000. I have attributed $100,000 to the past because although that period is longer than the future, the extent of pain and suffering in that period is not likely to be as great as it will be in the future. The allowance is $1,180. 14. But for the mesothelioma the life expectancy tables would suggest that the plaintiff's life expectancy is 16.22 years. For loss of expectation of life I allow $15,000. 15. The plaintiff has made an application for compensation to the Dust Diseases Board. To date there has been no outcome notified to the plaintiff in respect of that application. The plaintiff seeks that he be granted leave to approach the Tribunal for a reconsideration in the event that his application to the Board is not successful. That application is not opposed and I propose granting that leave in the orders that I make. 16. I turn now to the claim for care and services. The plaintiff's evidence was that his wife and other members of his family had provided most of his care. Before he became unwell he did the weekly grocery shopping. Most Sundays he went to Leura to buy a freshly baked loaf of bread for his wife. If he did not go to Leura he went to one of the other home bakeshops out west. He used to mow the front lawn and the strip near the road. His wife mowed the back lawn. When he swore his affidavit on 7 July 2008 he deposed to not being able to do anything. He was very weak. He was able to shower until recently before the affidavit with assistance but since then has not been able to shower at all, and he described that his wife bed bathes him. He needs assistance to go to the toilet. He has sweats and his wife has to completely change his clothes and bed clothes and bathe him. 17. In her affidavit Exhibit PX2, the plaintiff's wife deposed to the plaintiff doing gardening. She described that he maintained a pumpkin patch and two orange trees. He maintained those, picking the fruit and taking fruit to neighbours. He also grew potatoes. Mrs Muller estimates that the plaintiff spent about four hours on weekends tending the garden. That seems to me to be an excessive estimate. The plaintiff's evidence was to the effect that whilst he pruned and pulled weeds he did not seem to give it much attention. How much time he spent doing it depended on how long he wanted to. 18. Mrs Muller also describes that the plaintiff took care of the shopping, the front lawn maintenance and some home maintenance. She described his doing the grocery shopping on Saturdays and buying fresh milk and bread every day. She estimates that he spent about six hours each week doing this shopping. This time it would seem involved travelling to Leura, Dural and Springwood to buy particular cakes, fruit and bread that they liked to eat. Again this estimate seems to me to be excessive. A large amount of the time for the shopping involved the plaintiff travelling to these distant suburbs to buy fruit, cakes and bread that I imagine could have been bought more locally. There was no explanation in the evidence as to why these items could not have been bought locally. Mr Sharpe submitted that this was the plaintiff's and the family lifestyle but lifestyle is not the test for recovery of damages in this context. Reasonableness is the test and, in the absence of any evidence on this point, I think six hours a week is excessive. 19. During summer Mrs Muller says the plaintiff mowed the front lawn once a week and in winter once a fortnight. She estimates that he spent about one and a half hours mowing the lawns each time. Again I think this is an excessive estimate. The plaintiff put his estimate of the time for mowing the lawn at three-quarters of an hour, and that would seem about right. 20. Mrs Muller describes that most of the home maintenance was looked after by her sons and sons-in-law, although the plaintiff did bits and pieces every now and again, which she estimated took an hour each fortnight. 21. The plaintiff says his wife and other members of the family provided most of his care. Mrs Muller says that a friend began mowing the lawns from Christmas 2007 because the plaintiff was not able to do it. She also says that the home maintenance that he used to do has been done by others since he went into hospital on 28 April 2008. Also from that time, Mary, a daughter, took over all the shopping. 22. Mrs Muller says that when the plaintiff was in hospital between 29 April 2008 and 12 May 2008 she visited him every day, brought him food, clean clothes, newspapers, magazines and other things and took home his laundry. She estimates spending about three to four hours each day looking after him at the hospital. She says that from the time he was discharged from the hospital she has provided him with 24 hour care and assistance. She has needed to bed bathe him since then. She looks after all the domestic house chores and does all the cooking. She administers all his medication and prepares his special drinks. She assists him to the toilet. She changes his clothes after sweats and also changes the sheets. This is done at least once a day. She massages him every day. She says that he needs assistance in every aspect of his life and has done since 12 May 2008. 23. When the plaintiff was in hospital from 11 June 2008 to 13 June 2008 Mrs Muller deposes to spending eight hours a day on each of the days he was at the hospital. 24. There was an issue between the parties as to when the plaintiff first needed care in terms of personal care and domestic assistance. Mr Rowles, who appeared for the defendant, submitted that the claim for care in neither form commences until the plaintiff left hospital on 12 May 2008, and he relied in particular on the plaintiff's answers in cross-examination. I do not think the answers go that far. It was suggested to the plaintiff that until he went into hospital in April 2008 he was able to attend to his normal functions "with bathing yourself and such like." The plaintiff agreed that this was about right. Question - But you were attending to your normal functions. Answer - Yes, up until then. 25. It seems to me that that is a concession by the plaintiff that he did not require personal care and attention until he left hospital in May 2008 but it does not deal with the more physically demanding task of lawn mowing. I see no reason to reject the evidence of Mrs Muller that a friend commenced mowing the lawn from Christmas 2007 because the plaintiff was not able to do it. 26. I make allowance for care and services as follows: in doing this I follow the claims in the document entitled "Schedule of Past Care and Services" attached to the plaintiff's Synopsis of Damages. (a) 29 April 2008 to 12 May 2008. In this period the plaintiff was at Nepean Hospital. I accept the evidence of Mrs Muller, and adding some time for travel allow four hours a day for fourteen days at $23.02 per hour, making an allowance of $1,289.12. (b) 11 June 2008 to 13 June 2008. In this period the plaintiff was at Mt Druitt Hospital. Again I accept the evidence of Mrs Muller and allow eight hours a day for three days at $23.02 per hour, making an allowance of $552.48. (c) 13 May 2008 to 24 July 2008 excluding the period 11 June 2008 to 13 June 2008. During this period the plaintiff claims 24-hour care. This claim is disputed by the defendant and the defendant submits that care to the extent of eight to ten hours per day from 13 May 2008 is reasonable. I accept the defendant's submission. A claim for 24-hour care is a significant claim and ought to be supported by medical evidence unless it is plain that a person does require 24-hour care. I do not consider this is a case where it is so plain, and if this claim were to be made it ought to have had medical evidence to support it. Medical evidence in this case does not directly deal with the matter. Further, whilst it is common for this Tribunal to see cases of plaintiffs with mesothelioma requiring 24-hour care it is not common for the Tribunal to see claims for 24-hour care over the period claimed by the plaintiff in this case. Further, the plaintiff was assessed by a specialist occupational therapist for the purposes of this case, and therapist, Ms Ravagnani, who saw the plaintiff in July 2008 did not suggest that he required 24-hour care Exhibit PX12. Ms Ravagnani suggested at the time she saw him he was in what she called, stage three high dependency care, which she estimated at 64.25 hours per week. One cannot be precise about these matters and one needs to take a broad brush in estimating the care and assistance required. I note that Ms Ravagnani's assessment of 64.25 hours per week includes not only personal care but also assistance with domestic chores. I propose to allow 60 hours per week for the period from 13 May 2008 to 5 August 2008. I have not selected 5 August 2008 with any degree of precision. I have picked that date because I propose allowing 24-hour care for the last four weeks of the plaintiff's life, and that date accords approximately with my finding as to life expectancy. I allow for the period from 13 May 2008 to date at 60 hours per week for ten weeks at $23.02 being $13,812. (d) 28 April 2008 to date. The plaintiff claims home maintenance at one hour a fortnight and shopping at six hours a week. I think the claim for home maintenance at one hour per fortnight is reasonable. Whilst most of the home maintenance was done by sons and sons-in-law bits and pieces were left for the plaintiff to do, and half an hour a week is not unreasonable. For reasons given earlier I do not allow six hours a week for the shopping. There is no evidence directed to how much time the shopping would take if it were done more locally, and I propose to allow two hours per week for the shopping. For this claim then I allow two and a half hours per week for twelve and a half weeks at $23.02 an hour, yielding $719.38. (e) The plaintiff claims for lawn mowing from 25 December 2007 to date. The plaintiff claims an hour and a half a fortnight. The task in fact took three-quarters of an hour and allowing an hour and a half a fortnight would assume that the plaintiff undertook the task every week. That was not the case. It was likely weekly in the warmer months and considerably less in the other months. However, to make some allowance for the pumpkin patch and the potatoes and the two fruit trees I propose allowing three-quarters of an hour a week for the lawn mowing and the gardening. Three-quarters of an hour a week over the period, which is about thirty and a half weeks at $23.02 an hour is $527.96. (f) The plaintiff also makes a claim for time spent in transporting him to appointments. These claims seem to me to be reasonable and I propose to allow them, and they total $258.98. 27. I make the total of these figures for care and services to date $17,158.72. 28. I allow interest on that figure at five per cent (5%) for 0.59 years, being $506.18. 29. For reasons given earlier I allow for future care and services as follows: (a) Sixty hours a week for two weeks at $23.02 an hour, being $1,385.80. (b) Twenty-four hours a day for 28 days at $23.02 an hour, being $15,469.44. (c) I allow also for home maintenance, shopping and lawn mowing at 3.25 hours per week for six weeks at $23.02 an hour, being $448.89. 30. The plaintiff also makes a claim for damages under s 15B of the Civil Liability Act. This claim is on the basis that were it not for his illness he would have provided lawn mowing, home maintenance and shopping services to his wife until her 80th birthday. I do not allow those damages because I do not consider that the plaintiff satisfied the threshold of six hours per week required by s 15B. Further, there is no evidence that Mrs Muller was not capable of performing the services herself. Insofar as there is any evidence it is to the effect that she is indeed capable of performing the services. She has been mowing the back lawn. 31. I summarise the figures as follows: General damages $200,000. Interest on general damages $1,180. Loss of expectation of life $15,000. Past care and services $17,304.72. Interest on past care and services $510.18. Future care and services $17,304.13. Total $251,299.34. Orders 32. There will be a verdict and judgment for the plaintiff in the sum of $251,299.34. 33. I grant leave to the plaintiff to approach the Tribunal for a reconsideration following notification of the result of his application to the Dust Diseases Board. 34. The defendant is to pay the plaintiff's costs. ********** ADDENDUM 29 July 2008 Changes to this Judgment are made under the slip rule. In paragraph 26(e), the figure of $527.96 is amended to read $526.58. In paragraph 27, the figure of $17,158.72 is amended to read $17,158.54. In paragraph 29(a), the figure of $1,385.80 is amended to read $2,762.40. In paragraph 31: the figure of $17,304.72 is amended to read $17,158.54; the figure of $510.18 is amended to read $506.18; the figure of $17.304.13 is amended to read 18,680.73. The total of $251,299.34 is amended to read $252,525.45. Amend the verdict and judgment so that there is a verdict and judgment in favour of the plaintiff in the sum of $252,525.45 and those amendments in the verdict and judgment will speak as of 25 July 2008. ********** 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.