Gifford v Cockatoo Dockyard Pty Limited [2007] NSWDDT 22

Dust Diseases Tribunal of New South Wales

CITATION : Gifford v Cockatoo Dockyard Pty Limited [2007] NSWDDT 22

PARTIES : George Hartwell Gifford Cockatoo Dockyard Pty Limited

MATTER NUMBER(S) : 7034 of 2007

JUDGMENT OF: Curtis J at 1

CATCHWORDS: :- General Damages

DATES OF HEARING: 24/09/2007

DATE OF JUDGMENT: 28 September 2007

Ms A J Katzmann SC instructed by Turner Freeman Lawyers LEGAL REPRESENTATIVES: Mr G F Little SC instructed by Ellison Tillyard Callanan Lawyers

JUDGMENT:

Dust Diseases Tribunal of New South Wales Matter Number 7034 of 2007 George Hartwell Gifford v Cockatoo Dockyard Pty Limited 28 September 2007 JUDGMENT CURTIS J 1. The plaintiff, Mr Gifford, contracted mesothelioma in consequence of exposure to asbestos in the course of his work with Cockatoo Dockyard Pty Limited between 1960 and 1967. Cockatoo Dockyard admits liability to pay him damages and this matter proceeds as an assessment. General damages 2. Mr Gifford was born on 4 July 1945 and is now aged 62. Having qualified as a fitter and machinist with the defendant he studied at the Sydney Technical College and became a ship's engineer. After a short period at sea he enrolled in the Institute of Technology (now the New South Wales University of Technology) and qualified as a mechanical engineer. For 13 years he worked as a contract and project engineer with C A Parsons and, in about 1981, was employed as a contract engineer with a company that became known as Alstom Power Australia Ltd. Over the next 25 years working in Australia, Taiwan, Thailand and Malaysia, Mr Gifford rose to become general manager of this company. 3. In December 2003 Mr Gifford retired to establish his own engineering company, providing part time consulting services to Alstom. He is a passionate sailor and lives at Toronto on the shores of Lake Macquarie where he keeps his yacht. In 2005 he sailed to Bowen in north Queensland. He intended sailing with his wife to the Whitsunday Islands this year. 4. Mr Gifford has three children, five grandchildren and a wide circle of friends. One of his sons lives in Spain and Mr Gifford and his wife travelled overseas frequently. He is an enthusiastic amateur musician, and played second French horn in the Orchestra Nova, Newcastle, until he became ill. 5. In early 2004 Mr Gifford joined the register of "RedR", a not for profit organisation established by the Institution of Engineers Australia, which registers qualified engineers with the necessary skills to provide assistance to humanitarian organisations such as AusAID, UNICEF, UNWFP and UNHRC. 6. In early 2005, for a term of 10 weeks, Mr Gifford was seconded to the United Nations High Commissioner For Refugees and worked as a logistics officer in Aceh province in Indonesia. For a period of five weeks in late 2006 he worked for the UNWFP as a logistics officer in Dili, East Timor, arranging the distribution of food aid following civil unrest in Dili. This was dangerous and stressful work. 7. Shortly before Mr Gifford left Dili he developed symptoms of a cold with some slight chest pain. He was subjected to a routine x-ray that showed fluid in his right lung. He was referred to Dr Michael Deacon, a respiratory physician who, on 28 November 2006, told him that he probably had mesothelioma. Mr Gifford says he was terrified. He remembers walking across the road after the consultation, his hands shaking. Two of his friends had died from mesothelioma and he was acutely aware of their suffering and death. He visited one friend a few days before he died. He had reason for his terror. 8. Mr Gifford has now undergone three operations. On 1 December 2006 Dr Seah performed a flexible bronchoscopy and video assisted thorascopy, together with a talc pleurodesis on the right side. On 15 December 2005 Dr Seah performed the same procedure on the left side. A talc pleurodesis is a procedure whereby talcum powder is introduced as an irritant into the chest cavity to create inflammation, followed by resolution and scarring which binds the tissues together. It is notoriously painful. 9. On 23 January 2007 a radical right pleuropneumonectomy was performed by Professor B C McCaughan. This surgery involves the removal of the pleura, lung, pericardium and diaphragm en bloc from the right side of the chest followed by reconstruction of the hemidiaphragm with Gortex to stop the heart falling into the cavity so formed. The procedure causes stretching of the nerves which had formerly serviced those organs. Professor B C McCaughan says that the operation is "one of the most painful incisions known", compared to which heart surgery "is a relatively painless operation". 10. Mr Gifford's recovery from surgery was slow and protracted. He suffered greatly for many months. As a direct result of the pleuropneumonectomy Mr Gifford developed atrial fibrillation from which he still suffers. He has been hospitalised twice because of this condition. The earlier episodes caused great fear and anxiety. Several times he thought death was imminent. 11. Commencing on 19 March 2007, and extending over a period of five weeks, Mr Gifford received radiotherapy on five days each week. He describes this as the worst part of his treatment. It drained him of his strength. His chest was burned. He suffered ulceration of the oesophagus that made it difficult for him to swallow. His food had to be liquefied, and he vomited about every third meal. He was depressed by watching others, many younger than himself, receiving the same treatment. 12. In 1999 the median survival rate from pleuropneumonectomy under the hands of Professor McCaughan was 16 months. The professor discussed the operative mortality and morbidity with Mr Gifford prior to the surgery. The purpose of the surgery is to delay the progress of the mesothelioma. It is not a cure. Professor McCaughan says that Mr Gifford has a 40 per cent chance of surviving two years. Dr Seah suggests a possible 2-4 year survival following the surgery. 13. Currently Mr Gifford's mesothelioma is in remission, however he is certainly not well. He has constant, dull, right sided chest pain, he is short of breath and light headed on exertion. He is constantly tired. He has no appetite for food. He is distressed that he will not be able to continue his humanitarian activities. 14. Mr Gifford no longer has the stimulation of work in his profession, nor the comfort and distraction of sailing and music. He can no longer enjoy the long walks around the shores of Lake Macquarie in the company of his wife of 40 years. The everyday human emotions of joy, ambition, optimism, stimulation, diversion, appetite and pleasure are almost completely lost to him. Little remains of his life other than the passage of time, such comfort as his wife and family may offer him, and increasing suffering, both physical and mental. Few more extreme examples of loss of enjoyment of life may be imagined. 14. To a very large degree Mr Gifford is dependent on his wife who has given up her nursing career to care for him. He resents the loss of his independence and the burden that this has created for her. Before his diagnosis Mr Gifford had every expectation that he would enjoy many healthy years of life with his wife, children and grandchildren. He says that "the prospect that this may not happen upsets me a great deal." 15. Mr Gifford is angry that the defendant had cause to know that asbestos was dangerous and took no steps to protect him from its dangers. His damages must include compensation for his legitimate sense of outrage that the defendant's carelessness will rob him of his life, just at that moment when it had become most congenial. 16. Mr Gifford's dying will be hard. Professor McCaughan says that mesothelioma usually results in "a pretty horrible death". One terminal process occurs when an accumulation of fluid causes pressure on the remaining lung, so that the patient can't breathe and chokes to death. However, "By far the commonest [mode of death] is the terrible pain and the management of their pain relief can actually precipitate their death, in other words they're in so much pain, they have to get so much narcotics and other forms of pain relief that in fact their death is precipitated by the management". 17. As is well known to this Tribunal, the problem with large doses of narcotic analgesia is that such drugs make breathing less effective and of this the patient, already breathless, is conscious. I observed in Murfett that: "Severe breathlessness is a terrible affliction. Fright and panic are common reactions. When the choice is only between intolerable pain or breath denying analgesia the sufferer is in the most desperate of straits." 18. In assessing the magnitude of human suffering time is not the only measure. In the short life that remains for Mr Gifford he will suffer more physical pain than many seriously maimed or disabled persons suffer in a lifetime. He will suffer to no purpose, without hope of relief other than by his death. 19. The sorrowing of persons whose lives are blighted by injury and infirmity is tempered by the knowledge that life itself goes on, and with it a capacity for enjoyment. Mr Gifford, in addition to the conventional sum intended as substitution for enjoyment in the lost years, is entitled to substantial compensation for that present mental anguish and rage occasioned to him by the knowledge that he is denied the capacity for future enjoyment. 20. Experienced counsel in this jurisdiction no longer distress dying plaintiffs with questions designed to elicit, in graphic terms and tears, the depth of their suffering. The Tribunal is entitled to draw upon human experience, and literature, in order to form conclusions in relation to the probable effect of a death sentence upon the victim. 21. I assess general damages in the sum of $250,000. Interest on past general damages is agreed at $2000. Loss of expectation of life 22. At the age of 62 Mr Gifford had a life expectancy of 23 years. He may survive a further three. I allow a conventional sum of $20,000. Past care and domestic assistance 23. Mrs Gifford gave evidence as to the care and domestic assistance provided to her husband since he fell ill. I accept her evidence entirely. The cost of this assistance is the subject of evidence from Ms Heather Chan, an occupational therapist. Consistently with the evidence I assess past personal care and domestic assistance in the sum of $32,924.92. To this I add $1000 in respect of respite care making $33,924.92. I allow interest on past care and services at 4.5 per cent for nine months, $1,144.96, giving a total of $35,069.88. Past services 25. Accepting the evidence of Mr Gifford and his wife, I allow $1200 in respect of the costs of maintaining his yacht, $5,137.20 in respect of transport, and $6,179.95 in respect of the maintenance of his home. The total is $12,517.15. Future care, domestic assistance, and services 26. The probable cost of future care and services calculated in accordance with the evidence of Ms Chan and assuming survival to 22 September 2008, is, without any discount for deferral, $46,969.31. I am persuaded that the plaintiff will live beyond 22 September 2008 and allow the sum of $60,000. It is not in Mr Gifford's interests that I find a notional date of death, and I do not believe that it is necessary or useful in the application of Malec v Hutton that I further explain my reasons to the defendant. Summary of damages 27. General damages $250,000 Interest on general damages $2,000 Loss of expectation of life $20,000 Past care and domestic assistance $35,069.88 Past services $12,517.15 Future care and services $60,000 Total $379,587.03