Hart v Amaca Pty Ltd and Anor [2004] NSWDDT 10

Reported Decision (2004) 1 DDCR 254

Dust Diseases Tribunal of New South Wales

CITATION : Hart v Amaca Pty Ltd and Anor [2004] NSWDDT 10 James Norman Hart PARTIES : Amaca Pty Limited Hamersley Iron Pty Limited MATTER NUMBER(S) : 369 of 2003 JUDGMENT OF: Johns J at 1 CATCHWORDS: :- LEGISLATION CITED: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; Sullivan v Gordon (1999) 47 NSWLR 319; CASES CITED: Burnicle v Cutelli [1982] 2 NSWLR 26; Sturch v Wilmott [1997] 2 Qd R 310; Gurvan v Fenton (1992) 175 CLR 327 DATES OF HEARING: 03-04/02/2004 & 20/02/2004 EX TEMPORE JUDGMENT DATE : 02/20/2004

FOR PLAINTIFF: Mr JL Sharpe instructed by Turner Freeman. LEGAL REPRESENTATIVES: FOR FIRST DEFENDANT: Ms W Strathdee instructed by Gordon and Johnstone. FOR SECOND DEFENDANT: Mr Rundle instructed by Windeyer Dibbs.

JUDGMENT: 1. This is an action in damages by James Norman Hart against Amaca Pty Limited formerly known as James Hardie & Co Pty Limited, the first defendant, and Hamersley Iron Pty Limited, the second defendant. The action arises as a consequence of the plaintiff being exposed to and inhaling asbestos dust and fibre from using products manufactured by the first defendant, and at the premises of the second defendant in the course of the plaintiff's employment with it. 2. Given the nature of the evidence in this case the defendant's sensibly agreed that they did not contest the issue of liability. As a consequence the issues that remain between the parties means that I am to deal purely with the question of the calculation of damages in respect of those areas where the parties have not agreed upon a sum. 3. The plaintiff suffers from mesothelioma which is an incurable and fatal disease. It is a disease which 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, as has been described in the evidence, the tumour will grow and the plaintiff's pain will become greater. 4. The plaintiff was born on 9 March 1942. He married his wife on 18 April 1964. There are three children of the marriage. There are six grandchildren in the family and it is obvious to me that there is a close bond between the plaintiff and his wife, and also I would conclude in relation to the whole family. Their marriage has obviously been one of mutual success amply illustrated from the evidence given by the plaintiff and his wife. This relationship has undoubtedly been made closer by the serious medical condition that is suffered by the plaintiff. 5. Until September 2002 the plaintiff enjoyed good health. He had never smoked and did not suffer from any health problems that prevented him from doing the things that he enjoyed. The plaintiff retired in 1999 after having spent some years with Wallace and Tiernan, who were contract engineers, performing the same work he had done prior to leaving the second defendant in Western Australia. At the end of his employment the plaintiff was working as the managing director of that company until he retired in June 1999. The plaintiff had, until September 2002, enjoyed the benefits of a fruitful retirement. 6. In the September the plaintiff attended upon his family doctor because he was fearful of a connection between his shoulder pain and heart disease, from which both his parents had died. It was suspected he had a rheumatoid arthritic condition. Some blood tests were performed and the results were negative. A chest x-ray was performed and there was some indication of abnormality and the presence of a small pleural effusion. He had never been diagnosed with asthma, nonetheless he remained comparatively well except for the nature of the pain that he had been experiencing. 7. In October 2002 the plaintiff went on an overseas holiday to Italy with his wife. On their return he consulted his GP Dr Baker, as he was anxious about the findings on the chest x-ray. The plaintiff was still troubled by a cough but otherwise he was well. He was referred to Dr David Allen, a respiratory physician, whom he saw on 10 December 2002. A CT scan of the chest confirmed a small to moderate right pleural effusion. It was compared with the chest x-ray previously taken and it was noted to have no significant change. A pleural effusion was aspirated on 19 December 2002. Pathological examination of the specimens from the pleural effusion revealed cells consistent with an epithelioid mesothelioma. 8. The plaintiff was referred to Royal North Shore Hospital oncologist Dr Nick Pavlakis. On Thursday 6 February Dr Pavlakis undertook the ongoing management of his mesothelioma. There had been little progression at least in his condition in that five months period from when he first complained. 9. Dr Pavlakis confirms the nature of the plaintiff's then clinical condition. He had not up until that time suffered from a lot of breathlessness, weight loss, chest pain, fever or sweats but had continued with the cough. The plaintiff was otherwise, as Dr Pavlakis indicated, reasonably well. Because it was then thought that perhaps the disease was somewhat more indolent than might otherwise be expected with this condition Dr Pavlakis referred him to Dr Mathur for opinion on surgical options as he thought that the possibilities of surgical debulking would be possible and be to the benefit of the plaintiff. There was also the prospect of the introduction of a recent drug which was available as a systemic treatment option subsequent to any operative procedure. 10. The plaintiff was referred in the ultimate to Dr Mathur and the option of a radical pleurectomy and pleural pneumonectomy in the prognosis of mesothelioma, with pleurodesis, were discussed. 11. There was a more radical option, and he was aware that Dr Brian McCaughan had the largest experience of the radical option, which was an extra pleural pneumonectomy, so he sought a second opinion with Dr McCaughan. 12. Dr McCaughan ultimately concluded that without symptomatic heart disease and a positive history he thought that the plaintiff was a suitable candidate for the radical surgery, provided there was no evidence of distant disease on the PET scan and the diagnosis of mesothelioma was substantiated. 13. There was a long and detailed discussion concerning the options, the management, the risks and the prospective benefits of this radical surgical approach. The plaintiff was keen to follow that approach and ultimately he came to operation at the hand of Dr McCaughan on 26 February 2003. The staggering reality of the nature of this operation is amply described in the report of Dr McCaughan in exhibit PX5. 14. Experience of this Tribunal makes it amply aware of the extent of the procedure and the assault of the procedure upon the human frame. Moreover, the nature of the procedure involves the cutting of intercostal nerves which are the site of exquisite pain. 15. After the operation the plaintiff had a very complicated recovery which necessitated the previous right thoracotomy being re-opened and a haematoma, which had formed in the space left by the previous operation, had to be evacuated from the right hemithoracic cavity. That operation is also described in some detail by Dr McCaughan in exhibit PX5. 16. Subsequently, the plaintiff went into organ failure and he spent four weeks in intensive care in a drug induced coma to help him recuperate. He spent one week in the coronary care unit and a further week in the general ward and ultimately was discharged on 7 April 2003. 17. The operation the plaintiff describes, was extremely painful. There was also the anxiety that he suffered from his understanding that the blood was filling the cavity left in his chest. He was concerned about infection and he was anxious for the further operative procedure to remove the build up of blood. 18. Not surprisingly on discharge, the plaintiff was barely able to walk and then only slowly by holding onto a rail or using walls for support. He was constantly tired and fatigued and his legs were very weak because he had not used them for such a long period. He could not rise from the seated position without the assistance of using a rail or a frame and had great difficulty in looking after his own personal needs. There was no question of the plaintiff being able to walk up the stairs. He moved into the bedroom downstairs and there he stayed for a few months after he was discharged from hospital. 19. Until the end of May 2003 the plaintiff says he required full-time assistance from his wife, who he describes helped him in even the most minor of things. She also provided his medication and later any transport he needed to the doctor and physiotherapist. The plaintiff says he could not have gone without her full-time assistance during this period as even minor exertion such attempting to dress and wash himself left him so exhausted that he could not complete the task. I accept the plaintiff in his evidence. 20. From the end of May 2003 the plaintiff says he did improve but he still needed help with aspects of dressing and undressing. He had restricted movements in his right shoulder as a consequence of the operations and it made it difficult for him to perform these tasks in looking after himself. Whilst the plaintiff in cross-examination did give evidence that he was able to care for himself I was not utterly convinced of this evidence. I think the plaintiff was being stoical in the manner in which he gave his evidence and that he was suffering more than he was then prepared to admit. 21. Dr Pavlakis on 14 July 2003 spoke to the plaintiff and found that he was gradually recovering although he was still hampered by restricted movement of the shoulders and mild generalised weakness. The plaintiff still had a dry irritable cough and he had been commenced on iron injections by his local doctor, which obviously indicated he was suffering some weakness and debilitation. 22. In early September 2003 the plaintiff noticed a developing series of small lumps around the scar left by the surgery. It was ultimately shown that the mesothelioma was growing into the wound left by the surgery. He underwent a CT scan on 11 October 2003, which found the disease had progressed. 23. Professor Yuill indicated that perhaps radiotherapy should be undertaken to control the growth of lumps. Ten sessions of radiotherapy at the Mater were then undertaken during the latter part of October 2003. There were side effects of being tired, lethargic and needing to sleep every afternoon for a few hours. 24. After further blood tests on 11 November 2003 the plaintiff was noticing increasing shortness of breath, tiredness and fatigue and that had increased significantly. The plaintiff experienced nausea and he was suffering constant vomiting and he was given medical treatment for this. At this time he described himself as feeling terrible, in a lot of pain and feeling constantly nauseous and very run down. 25. The plaintiff was referred again to Dr Pavlakis who advised him that his mesothelioma was growing and that he should have a series of chemotherapy. Dr Pavlakis indicates in his report of December 2003 that there had been a development of a chest wall recurrence and there were rapidly progressive symptoms. There was marked progression of the disease on the CT scan and all they could offer him was supportive therapy by means of chemotherapy, which he scheduled to commence on 1 December 2003. There have been a number of periods of chemotherapy since with significant and debilitating side effects which the plaintiff has described. 26. Since November 2003 the applicant in his evidence in PX1 complained of constant tiredness, fatigue and pain. He is on MS Contin tablets twice daily and he has commenced taking morphine, which is the beginning of the period of him taking opiates to which I have previously referred. The plaintiff is short of breath on exertion, he sweats at night to the extent that he needs a change of clothes and bed clothes and the assistance of his wife. 27. The plaintiff's sleep is disturbed and although, as he has indicated in evidence in cross-examination, he was able to shower himself, and as he described it to care for himself, it is in the context of those complaints to which I have already referred. It would be unreasonable to conclude that the plaintiff has not suffered from significant debilitation since November 2003. 28. The plaintiff has lost a lot of weight and any physical activity causes fatigue and great tiredness. This is a far cry from the man who before falling ill led a very active life. He continued to play sport after he had retired. The plaintiff lives on the edge of a golf course of which he was a member and played a number of times a week and from which he obtained great pleasure. The plaintiff described other activities of an active nature. He travelled with his wife each year overseas and within Australia and more particularly since he retired. 29. The plaintiff is very distressed about what has happened to him. He felt that he was a relatively young man and in good health. He had worked hard for many years to provide for his family and was greatly enjoying his retirement with his wife. The consequences of his disease have to him been devastating. The loss of his family, children and grandchildren he undoubtedly feels greatly. 30. The plaintiff's future is bleak, it is hopeless. In terms of the future there will be increasing breathlessness to a much more significant degree than he now experiences. There will be an increasing restriction of movement which is a characteristic feature of the disease, and the pain will increase greatly in its severity. 31. In circumstances such as this case the mesothelioma which affects the pleural surface of the plaintiff's lung will be the subject of more significant areas of pain. The magnitude of the area gives an index of the severity of the discomfort which will grow worse as time goes on. 32. There will be an increase in the necessity to use a greater amount of morphine and like drugs in order to alleviate the pain. The side effects of the opiates will also be an additional imposition that he will have to bear. An increase in breathlessness will be of significant proportions and will add to a marked degree to his pain and suffering. 33. 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 other case, are fixed by a consideration of the injury and its consequences to the plaintiff. 34. It is not only the injury that relates to the plaintiff's 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 him. (see Brennan CJ in Carson v John Fairfax& Sons Ltd (1993) 178 CLR 44 at 71) 35. All aspects in relation to the plaintiff's general damages have been considered. Given the nature of the life tables, the plaintiff at age 62, 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 to him. 36. I therefore conclude that the appropriate award to be made in respect of pain and suffering in this case is $200,000 upon which there is to be 2 per cent interest from November 2002 on $110,000. 37. In relation to the loss of expectation of life I am constrained by authority to give weight to questions of moderation, ideas of fairness as one does in respect of the assessment of general damages. It seems to me that the parties are agreed and I conclude, taking into account the life tables, that an appropriate sum in this case would be $20,000 for loss of expectation of life. 38. Out of pocket expenses of $1,980 have been agreed upon. 39. Past gratuitous care and interest on past gratuitous care has been agreed upon in the sum of $50,000. 40. In respect of future gratuitous care provided to the plaintiff there is agreement between the parties in the sum of $30,000. 41. The plaintiff makes claim in respect of two other items. One relates to the plaintiff's 82 year old aunt, Mrs Malthouse. The plaintiff makes a claim for $18,180 in this regard. 42. The evidence in relation to this particular item which is submitted on the basis of Sullivan v Gordon (1999) 47 NSWLR 319 is that for the past two and a half years, since the death of his aunt's husband, the plaintiff has provided help and assistance by looking after his aunt's financial affairs and performing all necessary maintenance on her home in Croydon. He has generally looked after her, which has essentially involved the plaintiff in four hours per week attending to her property. He was forced to cease this assistance in February 2003 and it is now undertaken by his wife, his sister and his brother-in-law. It was the plaintiff's intention to provide for his aunt's needs in this regard for the rest of his life. 43. Additionally, the plaintiff makes a claim in respect of future replacement of services which in essence relate to the repair, maintenance and mowing around the home which he would have provided to his wife for the next 13 years. 44. Dealing firstly with the basis of the claim it is I think, significant to note that Sullivan v Gordon (supra) related to a claim where the plaintiff had lost the capacity to care for her children and was therefore a loss of capacity thus to care for others. 45. Sullivan v Gordon (supra) overruled the decision of Burnicle v Cutelli [1982] 2 NSWLR 26 which was held to be no longer good law. Beazley J (at 331 par 58) indicated that the decision of Burnicle v Cutelli (supra) did not reflect the true nature of a claim of this type based as it was on a loss of pre-accident capacity which gave rise to a specific post accident need. Beazley J indicated (para 61) that the Court must award damages for losses which reasonably flow from the damage both present and future, and that when assessing those damages the Court takes account of facts which are known at the date of the trial. 46. The capacity of the plaintiff in Sullivan v Gordon (supra), which was lost, was one which she had exercised prior to the accident, in that she already had a family for whom she cared. (A similar situation arose in Sturch v Wilmott [1997] 2 Qd R 310) 47. I think the essence of this claim was described by his Honour the President Mason J when he says at 324 par 15 in Sullivan's case that it involved the issue of the plaintiff's need to care for her own children. He indicated however, that Sullivan v Gordon (supra) did not involve a case in relation to persons other than the children and that in those circumstances different considerations would probably apply where persons for whom no legal obligation exists and who are not members of the plaintiff's household being cared for at the time of the accident. He gave the example of aging parents. "The right, [he said] recognised here, almost certainly does not involve exclusively moral obligations of care of persons outside the immediate household". 48. It is, as Mr Sharpe has pointed out, not a matter of which has been commented upon by the other judgments in Sullivan v Gordon (supra) However, a similar comment is to be found in Sturch v Wilmott (supra) where McCrossin J indicates that a plaintiff may out of charity or sense of friendship assist some neighbour on their own initiative and many similar examples, he indicated, could be visualised in view of the statements in Van Gurvan v Fenton (1992) 175 CLR 327. There was he said, no reason for refusing compensation to a plaintiff in such further cases simply because taking away the possibility of performing such services will not be productive of financial loss to the plaintiff. 49. However, while recognising the element of the necessity to perform such a function, he also recognised the need to limit the ambit of a defendant's liability to compensate. He indicated that many plaintiffs before being injured may have been performing voluntary services for persons outside their immediate households, not in response to anything which could be regarded as necessity, but simply as a result of free and unpressured choice. 50. He further indicated that the principle of "proximity" which has been an established operation in other areas of torts could perform some function in defining the ambit of permissible claims in this area. However, it was not necessary to decide that issue in that case. 51. Given what his Honour the President has indicated it seems to me that there is to be a limit upon the nature of these claims founded upon an obligation which arises out of the nature of the relationship. 52. In this matter, I conclude that I do not have sufficient evidence in relation to the obligation that may have arisen or that arises out of the relationship that exists between the plaintiff and his aunt. One could contemplate circumstances in which there is a relationship in a family but not in the immediate family which would be tantamount to the kind of relationship that exists in the immediate family. However, in these circumstances, given what has been set by the learned President relating to aged parents, it is perhaps unlikely. 53. In those circumstances, I do not conclude that the plaintiff is entitled to be compensated by way of damages in relation to the claim that he makes in respect of his aunt. 54. Where between a husband and a wife there is an obligation of care existing between them, being members of the same household and where care is provided at the time of the completion of the tort, there should be compensation in respect of such a claim. 55. Applying those principles to the capacity of the plaintiff to care for his wife in engaging in the maintenance around the home the plaintiff has clearly lost the capacity to care for his wife in this regard and he is entitled to be compensated in accordance with the provisions of Sullivan v Gordon (supra). 56. The amount that is claimed however, appears to me to be somewhat excessive in terms of the years that are applied. It is unlikely that the plaintiff would provide this kind of care to his wife for the 13 years claimed. I think an appropriate period is eight years and I think that there should be a deduction of 20 per cent for vicissitudes or contingencies. 57. The plaintiff therefore is to be awarded the sum of $26,769.60. 58. The plaintiff is entitled to a verdict therefore made up as follows: General damages $200,000 Interest on $110,000 at 2 per cent from November 2002 $2,877 Loss of expectation of life $20,000 Out of pocket expenses $1,980 Past gratuitous care and assistance including interest $50,000 Future gratuitous care $30,000 Sullivan v Gordon in respect of the home maintenance $2676.69 59. There will be verdict and judgment for the plaintiff against the defendants in the sum of $331,626. 60. I order the defendants to pay the plaintiff's costs.