Dust Diseases Tribunal of New South Wales CITATION : Downes v Amaca Pty Ltd [2010] NSWDDT 10 PARTIES : John Downes (Plaintiff) Amaca Pty Ltd (Defendant) MATTER NUMBER(S) : 6097 of 2006 JUDGMENT OF: O'Meally P CATCHWORDS: DUST DISEASES TRIBUNAL :- APPEAL - remitted issue - claim for medical expenses - whether plaintiff suffers asbestos related pleural disease and asbestosis - finding by Dust Diseases Board plaintiff has asbestos related pleural disease - claim for medical expenses for asbestosis - whether trial judge found both asbestos related pleural disease and asbestosis LEGISLATION CITED: Dust Diseases Tribunal Act 1989 Workers' Compensation (Dust Diseases) Act 1942 CASES CITED: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 DATES OF HEARING: 29 July 2010 DATE OF JUDGMENT: 29 July 2010 EX TEMPORE JUDGMENT DATE : 29 July 2010 G F Little, SC with S Tzouganatos instructed by Turner Freeman appeared for the Plaintiff LEGAL REPRESENTATIVES: G M Watson, SC instructed by DLA Phillips Fox appeared for the Defendant JUDGMENT: JUDGMENT O'MEALLY P 1. This is the determination of an issue remitted to the Tribunal by order of the Court of Appeal. 2. John Downes (the plaintiff) sued Amaca Pty Ltd (the defendant) claiming damages for asbestos related pleural disease and asbestosis. Part of his case involved a claim for medical and associated expenses. Before his case was heard, he made an application to the Workers' Compensation (Dust Diseases) Board (the Board) for payment of those expenses. The Board rejected his application. Section 8 of the Workers' Compensation (Dust Diseases) Act 1942 provides that the Board is to pay those expenses to a person to whom the Act applies. 3. At the trial, Curtis J held that: After deduction of the amounts otherwise allowable for past and future medical expenses, and for future care and services, the plaintiff's damages are assessed in the sum of $153,300. Because the plaintiff had other exposure to asbestos for which the defendant was not responsible, Curtis J entered judgment for 85 per cent of $153,300; that is $132,005; 15 per cent was the proportion for which the defendant was not liable. 4. Curtis J was of the view that if the plaintiff made further application to the Board his application would succeed and he would receive benefits under s 8 of the Workers' Compensation (Dust Diseases) Act 1942, and the costs of medical and associated treatment would be met by the Board. 5. After considering various scenarios, his Honour determined the present value of those costs to be $156,443.05. Instead of including that amount in the plaintiff's judgment sum, his Honour noted an undertaking by Senior Counsel for the defendant, not to oppose an application by the plaintiff under s 13(6) of the Dust Diseases Tribunal Act 1989 in the event his application to the Board was unsuccessful. Section 13(6) authorises the Tribunal to reconsider any matter it has previously dealt with or rescind or amend any decision it has previously made. 6. The plaintiff appealed against the failure of Curtis J to include the sum of $156,443.05 in the plaintiff's damages. 7. The orders of the Court of Appeal, so far as relevant, were: (3) Proceedings remitted to the Tribunal for the purpose of determining whether the assessed amount of $156,443.05 for the plaintiff's past and future expenses or some other amount should be deducted from his damages assessed at $311,743.05; (4) Subject to s 13(6) of the Tribunal Act the rehearing of proceedings is limited to the issue so remitted; 8. The remitted matter came before Curtis J on 8 July 2010 and, on the application of the plaintiff, his Honour disqualified himself from proceeding to consider the matter remitted by the Court of Appeal. As a consequence, the matter comes before me. This has posed some difficulty because I am required to construe parts of the reasons for judgment of Curtis J. 9. It should be noted at this stage, that after his Honour delivered judgment on 1 October 2008, the plaintiff made further application to the Board for medical and associated expenses. That application was made on 14 October 2008. His further application was considered by the Medical Authority of the Board and, on 9 July 2009, the Board certified that the plaintiff suffered from asbestos related pleural disease and as a consequence was 10 per cent disabled. It also certified he had been disabled to that extent from 25 October 2006. As a further consequence, the plaintiff became entitled to medical and associated expenses which would be paid by the Board. Indeed, since then the Board has paid something in the order of $17,500 for such expenses. 10. The plaintiff asserts that he is entitled to recover from the defendant the costs of treating the condition of asbestosis which was not accepted as a diagnosis by the Medical Authority, and therefore not accepted by the Board. 11. It is the plaintiff's assertion that Curtis J found that the plaintiff suffered both asbestos related pleural disease and asbestosis and, because the Board has not accepted an obligation to pay expenses related to asbestosis, an amount should be added to his damages to cover the costs of those expenses. 12. The medical evidence which was before Curtis J, is before me. I have not been referred to a great deal of it, and I assume therefore that only those parts to which I have been referred are relevant for consideration now. This will help in ascertaining what Curtis J found. 13. At the trial, there was a live issue as to whether the plaintiff suffered asbestosis. 14. Dr Oliver is a thoracic physician practising in Brisbane to whom the plaintiff was referred by his general practitioner. On 12 September 2005, he reported to the referring GP, Dr Trappett. His report of that date included the following: X-rays were available of 8 June 2004 and 20 August 2005, and both show extensive pleural plaques bilaterally with no evidence of an interstitial process on these plain films. 15. I pause here to observe that the extensive pleural plaques would be the basis upon which the plaintiff's asbestos related pleural disease was diagnosed. The absence of an interstitial process would have indicated that the plain X-rays did not show asbestosis. 16. In a later report of 20 October 2005, Dr Oliver reported that in the meantime the plaintiff had undergone CT scanning. The CT showed extensive calcified plaques along both chest walls, over both diaphragms and in the interlobular fissures. Dr Oliver observed: There was a minor interstitial process in the costophrenic sulci with linear bands etc. here. In the report of that day, Dr Oliver also said the following: I was able to obtain copies of the Royal Brisbane pathology results and these confirmed a speckle ANA of > 2560 and a nucleolar titre of 160. The ENA screen was positive with an SSA/Ro and the SSB/La both positive and anti-dsDNA of 5. The SSA and SSB are associated with lupus or with Sjogren's. And in the report of 18 November 2005 he observed: However, he does have the positive antinuclear antibody with further testing suggesting that this could be associated with Sjogren's Disease which is also known to cause an interstitial process. 17. I think it generally to be accepted that asbestosis affects the interstitial area or parenchyma of the lungs, and, as its name suggests, asbestos related pleural disease affects the pleura or lining of the lung. 18. The question as it presents itself to me, is whether Curtis J accepted the diagnosis of asbestosis, that is to say whether at the time he delivered judgment, was he of the view that the plaintiff was then suffering asbestosis or was at risk of developing it. 19. There was a division of opinion between the medical experts as to whether the plaintiff at that time did suffer asbestosis. Dr McEvoy is a thoracic physician who was qualified by the defendant and who gave evidence before his Honour. It was his view that the plaintiff did not suffer asbestosis. At T 86.48, he was asked: Question - In your opinion, does Mr Downes suffer from asbestosis. Answer - On balance, I don't think the evidence is there to say he does so, no, I don't think he does in our present state of knowledge. At T 108 he was cross-examined about the findings on radiology, and at T 109.4, was asked: Question - Given what you agree was seen radiologically, the history of exposure, the latency period between exposure and the radiology becoming apparent and the crackles in the lung and the restrictive defect that you agree now has been found and has progressed over the years, is it not more probable than not that the condition which he does have, apart from his diffuse plural thickening is early asbestosis? Answer - Well, no, because I think all the changes that I've reported and you've enumerated can be explained by him having what we all agree he has, extensive asbestos related pleural disease, large pleural plaques and areas of pleural thickening. Question - The fifth thing that you refer to in your appendix is the presence of parietal pleural thickening or plaques in association with lung fibrosis is highly suggestive of asbestosis. Answer - But he doesn't have lung fibrosis. Question - So you do not describe any of those things that we have just gone through, you do not accept any of those things are lung fibrosis. Answer - I mean lung fibrosis in the terms of interstitial lung fibrosis or UIP. 20. I pause here to note, as I think I have earlier mentioned, that lung fibrosis occurs in cases of asbestosis and the reference to the fifth thing, is the fifth thing in a report which was in evidence. 21. At T 109.23, his Honour asked: Question - But he is at risk of developing asbestosis I take it. Answer - I think he's at risk of developing asbestosis and I think he's on the borderline. HIS HONOUR: That is what Dr Slaughter said in effect. 22. Mr Little of Senior Counsel, who appears for the plaintiff, urges upon me that this remark of his Honour, which appears without a question-mark following, should be taken to be a finding of fact that the plaintiff had asbestosis, because, seemingly, That is what Dr Slaughter said in effect. In a CT report of 30 March 2007, Dr Slaughter wrote: COMMENT: The patient has evidence of multiple pleural plaques, many of which are calcified. Over the lower lobes, these probably constitute diffuse pleural thickening and there are some large plaques involving the visceral pleura in the fissures. This appearance is typical of asbestos related pleural disease. There is also evidence of subpleural reticular nodular densities with some thickened short lines and small linear markings. These are present in non-dependant lung and most marked in the lower lobes. They were present in 2005 and have changed very little. Under these circumstances, they are most likely due to mild interstitial lung disease and in a patient with a history of asbestos exposure, are most likely due to mild asbestosis. 23. Dr Slaughter is a radiologist, not a chest physician. It was within Dr Slaughter's sphere of competence to describe the changes visible on radiological study. It was within his competence to say they were consistent with various disorders, but I would think not to say conclusively that they were determinative of a particular disorder. The possibility of Sjogren's Disease was not considered by Dr Slaughter, nor did he refer to it. 24. I turn now to a consideration of what Curtis J said in his reasons for judgment. I have expressed to counsel in the course of submissions, the difficulty I face in construing some aspects of what his Honour meant, and therefore, what he found. I read each of his Honours reasons when they are given, as does each Judge of the Tribunal read each other's, and Curtis J's reasons are remarkable for their precision, as well as the felicitous use of language. Sometimes, however, spelling and grammatical errors appear. 25. The question as it appears to me, is whether his Honour found that the plaintiff did suffer from asbestosis. At par 4 of his reasons, he said: He probably does have some of the first signs of developing asbestosis. He is not at the present time greatly disabled, although his lung function continues to deteriorate and the consensus of medical opinion is that his symptoms and disabilities will increase. The sentence: He probably does have some of the first signs of developing asbestosis, could mean that he had asbestosis which was showing first signs of developing, or it could mean that he had first signs which show that asbestosis could develop. In par 8, his Honour said: Mr Downes may develop severe asbestosis which will greatly aggravate his sufferings and then kill him. Dr Allen thinks this is probable; Dr McEvoy thinks it is only possible. I am not entirely persuaded by Dr Allen. Again, what his Honour said there is capable of more than one construction. It could mean that the plaintiff had asbestosis which might develop into severe asbestosis, or it may mean that he does not have asbestosis now, but that he might develop severe asbestosis in the future. The medical evidence does not resolve the matter. 26. Against the latter construction, it is put to me by Mr Little that in par 2 of his reasons, his Honour referred to the fact that the plaintiff has contracted asbestos related diseases. He used the plural noun, diseases. That is, says Mr Little, sufficient to establish that his Honour concluded that the plaintiff had both ARPD and asbestosis. I am not so sure. His Honour is not always responsible for the final form of his judgments, and, as noted, sometimes they contain typographical, and even grammatical errors. Against that, of course, is the fact that in pars 3 and 7 the singular noun, disease, is used. Later in his reasons, when speaking of future possibilities, the plural noun diseases is used. I am doubtful that his Honour found that the plaintiff was, in October 2008, suffering asbestosis. 27. Mr Little has urged upon me that the manner in which his Honour considered various scenarios and subsequently applied a 50 per cent calculus in accordance with the principles of Malec v Hutton(1990) 169 CLR 638 , says that it was plain that his Honour did determine that the plaintiff suffered asbestosis. I regret I am unable to agree. It is equally consistent that his Honour was considering that asbestosis might occur in the future. 28. If it is of comfort to the plaintiff, the Board has accepted that he is entitled to payment of medical and associated expenses. One may safely conclude from the annexure to Dr Allen's report of 15 April 2007, headed Document A, that the treatment for asbestos related pleural disease, without asbestosis, is the same as it would be with asbestosis. 29. I think I should also refer to the fact that various clinical signs have been noted by the thoracic physicians, but in my view they are not sufficient to justify a diagnosis of asbestosis. The lung function testing and the presence of crackles by themselves are not sufficient to support a diagnosis of asbestosis. 30. As a consequence, it is my view that the judgment entered by his Honour on 1 October 2008 should stand. 31. There will be judgment for the plaintiff in the sum of $135,005. 32. I order the plaintiff may claim further damages if he develops mesothelioma, asbestos induced carcinoma and/or lung cancer. 33. Costs reserved for future argument. G F Little, SC with S Tzouganatos instructed by Turner Freeman appeared for the Plaintiff G M Watson, SC instructed by DLA Phillips Fox appeared for the 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.