Dust Diseases Tribunal of New South Wales CITATION : Smart v State of NSW [2008] NSWDDT 20 PARTIES : James Joseph Smart (Plaintiff) State of New South Wales (Defendant) MATTER NUMBER(S) : 7308 of 2007 JUDGMENT OF: O'Meally P CATCHWORDS: DUST DISEASES TRIBUNAL :- Assessment of damages LEGISLATION CITED: Civil Liability Act 2002 CASES CITED: Novek v Amaca Pty Ltd [2008] NSWDDT 12 DATES OF HEARING: 15, 16 July 2008 DATE OF JUDGMENT: 16 July 2008 EX TEMPORE JUDGMENT DATE : 16 July 2008 J A McIntyre SC instructed by Turner Freeman appeared for the Plaintiff LEGAL REPRESENTATIVES: T Moisidis instructed by Hicksons Lawyers appeared for the Defendant JUDGMENT: JUDGMENT O'MEALLY P 1. James Joseph Smart suffers from malignant pleural mesothelioma which he contracted as a result of exposure to asbestos in the course of his employment by the New South Wales Government Railways. The State of New South Wales has assumed the liability of the railways and it concedes that the plaintiff is entitled to damages. My only task is to assess general and special damages. 2. Mesothelioma is a terrible, devastating and exquisitely painful disorder. With the effluxion of time and in the light of experience, general damages are often agreed. Of recent times, judges of the Tribunal have tended not to recite the horrible and excruciating pain suffered by those who contract the disease and counsel rarely address this issue in submissions. 3. Painkilling medication often is inadequate to deal with the pain; often, at best, it plateaus pain rather than remove it. People who suffer mesothelioma reach a stage where they experience constant and uncontrolled pain. Every breath induces increased pain and a sufferer is left with a choice between breathing and not breathing, which, of course, is no choice at all. 4. During the course of submissions I indicated my view that the sum of $200,000 was appropriate to award for general damages, taking into account the pain the plaintiff has experienced and will experience until he dies. The figure indicated is roughly midway between the figure put to me by senior counsel for the plaintiff and by counsel for the defendant. Neither counsel has addressed on general damages and it is not necessary, as they have indicated to me, to examine the medical evidence which relates to the plaintiff's pain and suffering. Neither seeks dissuade me from the view expressed during the course of submissions. 5. The areas of dispute relate to the costs of services given by and to the plaintiff. To deal with these it is appropriate first to consider the plaintiff's own circumstances. 6. The plaintiff is now 74 years old, having been born on 5 April 1934. After sustaining a back injury on 19 May 1982, he continued his employment with the railways until 1989, when he was medically retired. In 1997 he moved to the Central Coast. After he was divorced he met one Dawn Pearl Price, with whom he began to co-habit in January 1998, and, apart from an interruption of two years, the plaintiff and Ms Price have lived together in a home owned by the plaintiff. 7. Both the plaintiff and Ms Price gave oral evidence and swore affidavits. The plaintiff's oral evidence was given with difficulty and it was plain he was experiencing discomfort. 8. The plaintiff's evidence is that the first symptoms of mesothelioma presented in January 2007. He then saw his general practitioner and was referred for x-ray and in due course to a specialist thoracic physician. It was in January 2007 that he underwent aspiration to drain an accumulation of fluid from his pleural cavity. 2.8 litres were drained. Thereafter he had subsequent hospital admissions for aspirations, the second in Wyong Hospital on 23 February 2007 and a third when he underwent thoroscopy and a talc pleurodesis in March 2007. Another aspiration occurred in March 2008. 9. The process of aspiration is painful and uncomfortable. The process of thoroscopy and talc pleurodesis is also painful and uncomfortable. The plaintiff's talc pleurodesis would have been intended to cause the lung to adhere to adjacent anatomy to avoid a repeat effusion. That has not occurred. Not only has the plaintiff experienced pleural effusions but he has, seemingly, had a growth of the tumour into his abdomen and it has been, and will seemingly be, necessary again to aspirate ascites which have been and are accumulating. I mention these facts to put in context the plaintiff's claim for past care. The defendant concedes that the plaintiff is entitled to some amount for past care, but says that the periods during which such an award should be made are from 9 March 2007 to 26 October 2007 and from 1 March 2008 until today. 10. As noted, the plaintiff first began to experience the symptoms of mesothelioma in January 2007. There were symptoms which, though not incommoding presented in late 2006, but they, I think, can be ignored. I am of the view that the plaintiff did require assistance and is entitled to an award for past care which extends from January 2007 until the present. 11. The plaintiff first claims an amount in respect of the period 1 January 2007 to 1 March 2007 and thereafter to the present at an increased weekly duration. The plaintiff was referred by his general practitioner to Dr Erdstein, a specialist thoracic physician. As noted the plaintiff underwent surgery. This was in March 2007 at the hands of Professor McCaughan. The claim of the plaintiff in respect of the period from 1 January to 1 March is for assistance for eight hours per week. The evidence of the plaintiff and Ms Price is not entirely coincident between oral evidence and affidavit evidence, but that, perhaps, is not surprising. It is the case where claims are made for the cost of care both past and future, at best only estimates can be made because crests and troughs occur, and in the absence of precise diary notes it is impossible to make an accurate determination of the assistance provided. 12. I have come to the view that in respect of the period 1 January 2007 to 1 March 2007 an allowance in the order of eight hours per week should be made. That, I am informed, computes to $1,449 which should be rounded up to $1,500. 13. The next period claimed by the plaintiff, though again disputed by the defendant, is from March 2007 to the present. In respect of this period the plaintiff's claim is in the order of fifteen hours a week at about two hours a day, which would compute to slightly more than $22,000. In the plaintiff's affidavit commencing at para 31 the plaintiff describes his condition and its progression. In cross-examination various concessions were made by him but, as it seems to me in light of the task I am to perform, these concessions do not destroy or significantly reduce his claim. If I approach the matter on the basis of his evidence-in-chief and his affidavit, from which there was not significant departure, his claim would be greater than I intend to allow. The figure in respect of past care and to the present is $22,000, but applying a broad brush I think a figure to award the plaintiff in respect of the second past periods is $20,000. 14. The next question to be considered is for what period into the future the plaintiff will require care. The plaintiff was seen on the defendant's behalf by Dr Breslin, a specialist thoracic physician. He prepared a report of 28 February 2008 in which he expresses the view that the plaintiff was likely to die in six months. That would be some time next month. The plaintiff has continued to see Dr Erdstein. The last consultation with that doctor took place on 29 April 2008. PX3 contains a number of the reports of Dr Erdstein, the last one of which bears date 24 June 2008. In the last paragraph of that report Dr Erdstein said: …I would be quite guarded in my estimation of his life expectancy, but I would say that it would be in the order of 12 months. … 15. Dr Erdstein has been treating the plaintiff since January 2007 and has seen him on many occasions. Accepting, as one does, the unpredictable course of mesothelioma which can lead to a sudden deterioration in the health of a sufferer with little or no warning, I think it appropriate to accept the view expressed by Dr Erdstein in the report to which I have referred. This is because, as a treating doctor he has seen the plaintiff regularly he is in a better position to give a prognosis. As a consequence I come to the view that the presumed date of death of the plaintiff will be 24 June 2009. 16. In respect of future care I have been handed schedules by both plaintiff and defendant. The defendant submits that a sum appropriate for future care is in the order of $8,000. The plaintiff submits a figure in the order of $55,000. The plaintiff gave evidence that he would wish to stay at home, effectively until he dies. I can understand that as an expression of desire. Experience demonstrates, however, that care of a mesothelioma patient who is in need of constant nursing attention is virtually impossible to give at home, and I would think it likely that for at least the last month of his life the plaintiff would be admitted to a hospital or hospice where the costs would be borne by the Dust Diseases Board. It is the case that the need for care and attention while the plaintiff remains at home will both fluctuate and increase in duration. There will be periods of moderate care, high care and total care given at home before a likely admission to a hospital or hospice. 17. The plaintiff claims for moderate care a period of twenty-six weeks an allowance of fifteen hours per week or roughly two hours each day, being the same as the care he is currently receiving. He claims a period of high care for six hours a day for a period of thirteen weeks and thereafter for two months. That has been calculated, as I have said, to be close to $55,000. Again applying a broad brush and doing the best I can with uncertainties I think a sum appropriate to allow is $35,000. 18. The remaining claim is a claim under s 15B of the Civil Liability Act 2002. Though the plaintiff's claim is small, that is for $5,000, this aspect of the case has been the most intensely debated. The plaintiff's entitlement here depends upon a construction of s 15B. Mrs Moisidis has referred me to a decision of my colleague Kearns J in Novek v Amaca Pty Ltd [2008] NSWDDT 12. Speaking of s 15B His Honour said: [110]… Combining the definition of "dependants" with "gratuitous domestic service" and with the needs and thresholds tests limits the cases in which the remedy is available. It is available only as follows: - . . . ; - . . .; - where the services are truly to fulfil a need, thus excluding services that, though provided, could have been performed, even perhaps with difficulty, by the dependant; - where the services are provided for a minimum of six hours per week and for a minimum of six months, thus excluding cases where the need is relatively minor. 19. There is evidence here that Ms Price, during a period she underwent shoulder surgery and convalescence, was capable of performing and did in fact perform some of the services in respect of which this claim is made. The tasks performed for her by the plaintiff have been identified; they were probably performed for a period of six hours for a short period, but not exclusively, and not for a period of at least six consecutive months, which are conditions precedent to the entitlement of damages under s 15B. The plaintiff is not entitled to an award of damages under s 15B. 20. Of the general damages, I think one-third should be allocated to the past. Thus the plaintiff is entitled to an award of damages made up as follows: General damages $200,000.00 Interest on past general damages from January 2007 $1,848.00 Loss of life expectancy been agreed at $11,500.00 Past care $21,500.00 Interest on past care $1,026.00 Future care $35,000.00 Making a total of: $270,874.00 21. There will be a verdict for the plaintiff and judgment in the sum of $270,874. 22. The plaintiff did make a claim for the cost of home modifications and for his liability to the Health Insurance Commission. It has been agreed between the parties that in the event that the Dust Diseases Board declines to bear the cost of home modification, which may become necessary, and in the event that the Dust Diseases Board declines to indemnify the plaintiff for his liability to the Health Insurance Commission, application may be made to the Tribunal under s 13(6) of the Dust Diseases Tribunal Act 1989 for reconsideration. 23. The defendant will pay the plaintiff's costs as agreed or assessed. Mr J A McIntyre, SC instructed by Turner Freeman appeared for the Plaintiff Mrs T Moisidis instructed by Hicksons Lawyers 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.