Bricis v Amaca Pty Limited [2005] NSWDDT 35

Dust Diseases Tribunal of New South Wales

Bricis v Amaca Pty Limited [2005] NSWDDT 35 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

Wladislav Bricis (Plaintiff) PARTIES : Amaca Pty Limited (formerly James Hardie and Coy Pty Limited (defendant)

MATTER NUMBER(S) : 56/2005

JUDGMENT OF: Duck J at 1

CATCHWORDS: Damages :- Assessment of damages

Sullivan v Gordon (1999) 47 NSWLR 319; Carol Anne Worbs (as Legal Representative of the Estate of the Late Pauline Partridge v Bluescope Steel (AIS) Pty Limited DDT98 of 2004; CASES CITED: CSR Limited and Anor v Eddy as Administrator Representing the Estate of Thompson [2005] HCA Trans 390; Pamela Harmer v Seltsam Pty Ltd (formerly known as Wunderlich Ltd) and Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd) DDT 189 of 2004

DATES OF HEARING: 14 and 15 July 2005

EX TEMPORE JUDGMENT DATE : 07/15/2005

FOR PLAINTIFF: Turner Freeman LEGAL REPRESENTATIVES: FOR DEFENDANT: A O Ellison and Co

JUDGMENT: JUDGMENT DUCK J 1. The plaintiff brings proceedings for damages against the defendant. He pleads that he was employed by the defendant from January 1955 until December 1984 in various capacities at its asbestos cement works at Camellia firstly and later at Rosehill. He now suffers from a number of conditions related to exposure to asbestos dust and fibre. They include asbestos related pleural disease, asbestosis, pleural mesothelioma and peritoneal mesothelioma. The defendant indicated at the commencement of the hearing that so far as it was concerned the only matter to be determined was the proper amount of damages. The matter has proceeded as an assessment. 2. The plaintiff was a person born on 14 March 1926 in Latvia. He grew up on a farm, went to school then to technical school and left school at the age of 18 in 1944. He was then drafted into the Latvian army, fought on the German side in the Second World War and saw active service on the Eastern front fighting the Russians. He was wounded, taken back to Germany to a military hospital and thereafter captured by United States forces in 1945. He met his wife, Maria Angela, in 1949. She had been born on 16 March 1924. They were married on 13 April 1950. 3. At paragraph 5 of his affidavit PX1 the plaintiff deposes to the fact that the couple celebrated 55 years of marriage this year. They have an adopted daughter, Helga. They left Europe in 1950 and arrived in Melbourne on 9 November 1950. On arrival here they had periods in migrant camps. When he came to Sydney the plaintiff obtained some work for Wunderlich at Rose Hill in the terracotta tile department. Angela worked at the Globe Worsted Woollen Mills in Marrickville. 4. The plaintiff commenced his employment with James Hardie and Coy Pty Limited at Camellia on 25 January 1955. His affidavit details exposure to asbestos over the years of his employment but in light of the way in which the matter has proceeded there is no need to recount the details. He retired at Christmas time in 1984. He was then 58. He said at par 25 of his affidavit that in retirement he enjoyed many things such as reading and gardening. He said that he read a lot. He lives in a house at Cecil Park which is on an acre of land. He has large areas of lawns and gardens there. About the gardens he said: Mostly we had flower gardens though I also kept vegetable gardens and some chooks. 5. He said he loved working in the garden and would spend 25 to 30 hours per week gardening. 6. He also attended to the maintenance of the house, undertaking painting, carpentry, concreting and general repairs (see par 26). There is attached to the plaintiff's house a separate building he describes as a garden flat. His daughter lives there with her daughter, she being an unmarried mother. The plaintiff and his wife enjoyed travelling. They had planned to travel to Germany and to Latvia in the European summer this year but he became too sick and that trip had to be cancelled. At par 28 he deposed to the fact that he attended Mass every Sunday at his local Catholic Church at Horsley Park. He said, "It was very important to me". The last time that he was able to attend Mass was on 8 August 2004. 7. He said on most weekends he would go with his family and friends for lunch or dinner. He would go to lunch with his friends after Mass on Sundays. He listed a number of clubs which he used to frequent but as to all of that he said he has not been well enough to go since before his admission to Sydney Private Hospital (see par 29). He is the New South Wales chairman of the Latvian Catholic Society, a position he has held for many years. When he became sick he tendered his resignation but they refused to accept it. Since he has had surgery for the mesothelioma he has been unable to attend the meetings of that society (see par 30). He also had friends at the Flemington Latvian Community House whom he would meet for lunch about once a month. He said in general terms his health has been good. He has been treated for a heart problem in recent years but medication appears to have had that under control. I should add that there is a medical report confirmatory of that fact from the treating physician, Dr Lau. 8. The relevant physical troubles related to his exposure to asbestos were first observed about 10 years ago (see par 32 PX1). The plaintiff said he first noticed some breathlessness. He said his breathing slowly deteriorated over time. In 2001 he was diagnosed as having asbestosis by officers of the Dust Diseases Board. He has been in receipt of a pension for a few years now in respect of that condition. So far as mesothelioma is concerned he said at par 33 that he first felt symptoms in about June 2004. The first symptom was right-sided lower chest pain. He went through investigations, chest x-ray, CT scan and ultrasound, and was then referred to a surgeon, Dr Rapaport. 9. The plaintiff was admitted to the Sydney Private Hospital at Ashfield where he had a laparotomy on 9 August 2004. He said a number of large incisions were made on the right lower chest wall (see par 35). Then he said: I now have a large scar across the top and down the left side of my abdomen. 10. He was kept in hospital for 10 days on that occasion. Before being discharged Dr Rapaport came to see him to inform him that he had mesothelioma. Since that time he has noticed that the breathlessness has increased considerably. He said that since August 2004 he has been using oxygen for a couple of hours every day to help him breathe. 11. On 26 August 2004 he was admitted to Liverpool Hospital where he remained until 6 September 2004. At that hospital his lung was drained and 1.7 litres of fluid removed from it. Talc was inserted in an attempt to prevent fluid from building up again. He said, "This was done while I was sitting on a chair". He said it was very uncomfortable. On 14 November 2004 the plaintiff was admitted to Fairfield Public Hospital on which occasion he had 1.4 litres of fluid drained from his right pleural cavity. He was discharged on 17 November 2004 (see par 39). The plaintiff was referred ultimately to Dr Hui, oncologist at Westmead. He first saw the doctor on 18 November 2004. He commenced chemotherapy on 22 November 2004. He said that he has now completed five cycles of chemotherapy, the last treatment being given on 31 March 2005. 12. He said that after the second treatment, although the program required him to be treated every 2 weeks with chemotherapy, he had to delay the third treatment for a month because he was so sick. He said he felt sick and tired and weak and could hardly move. As a result of the chemotherapy he said he lost his appetite and his sense of taste. The chemotherapy started to affect his eyesight. He also got infections in his eye. After the following treatment of chemotherapy the same problems recurred. He said that now that the chemotherapy cycles have finished he can hardly read. He said he can now read large letters whereas before he was a reader who enjoyed reading. He has a large collection of books. He has suffered constipation as a result of the chemotherapy. He has felt nauseous, he has lost 25 kilograms in weight. He said of more recent times his appetite has improved a little. His sense of taste is returning to some degree and he is eating a bit better. 13. In the course of his treatment the plaintiff was referred also to Dr Paul Despas, respiratory physician, whom he saw firstly on 7 December 2004. On 20 December 2004 at Westmead Hospital the plaintiff had 2.7 litres of fluid drained from his right lung. On 3 January 2005 he was readmitted to Westmead Hospital. He said at par 46 that he was very sick with severe breathlessness and weakness. He was given medication and discharged on 11 January 2005. He said he has pain which is largely controlled by medication now, "although I sometimes have pain in my abdomen" (par 48). As regards sleeping he said that he can sleep on and off using tablets. The sleep is disrupted sleep. He said in connection with that, that he spends so much time lying on a bed that he has not the energy to move. 14. He said at paragraph 57 of his affidavit that he cannot lie flat and uses several pillows to keep his head up when he is sleeping. He went on to say this: My breathlessness interferes with my sleep and I lie awake thinking about what's happening to my family and me. I have seen some of my friends suffer through the same types of lung problems as I have. 15. He described the draining of pleural effusions as causing a little bit of pain. On one of the occasions at Liverpool Hospital he was given a bag and carried it around for a couple of days until the drainage was complete. As regards breathlessness he said he can walk for maybe 10 metres. He has trouble standing up. When sitting down he becomes breathless after a couple of hours. He said at bed time he can hardly get into bed. He said sitting is difficult in any sort of chair. In respect of getting dressed he said his wife puts his clothes out for him. He will put on one item of clothing and then have a rest. 16. His wife continues to do the cooking although she has her own problems, a matter which I will come to in a moment. She has always done the cooking. The plaintiff said that before he was sick he did not do much cooking. He used to help with the washing up and drying up of dishes and so on. In respect of his wife the plaintiff said at par 49 of his affidavit that she is nearly blind. In 2001 she was diagnosed with macular degeneration in both eyes and her sight has deteriorated since that time. She suffers too from arthritis and from osteoporosis. Among the material provided to the Court is a letter from Dr A W Wechsler dated 19 May 2005, PX13. 17. The doctor confirmed that: Mrs Bricis suffers from bilateral age-related macular degeneration which has affected her central vision and she has lost her central vision which has given her vision of only count fingers in each eye (sic). The doctor went on to say this: This should stabilise now but she possibly could lose further vision from count fingers to, say, hand movements only. In other words, there is a possibility of a further slight diminution of vision. The report goes on in this way: As far as matters in the house (sic), I feel at the moment she could be in her own home but would need some care in the form of someone to do the shopping, someone cleaning, et cetera. As far as outside the house is concerned I feel that she should not cross a road by herself, she should not be unaccompanied outside by herself and she should not be anywhere near traffic as her vision is so poor that she may do herself some injury. She certainly could not go shopping on her own and probably she would not be able to use the telephone. 18. The plaintiff said in respect of his wife's sight difficulties at par 49: Before I became ill I did all of the household shopping and a lot of the household chores including cleaning windows, putting the shopping away, vacuuming, cleaning the bathroom and showers and spring cleaning tasks. 19. He also helped with the washing. The plaintiff also managed the family finances, did all of the banking and paid the bills. He drove his wife to her appointments and accompanied her whenever she went out. He said that she can no longer read or write. The plaintiff said also at the same paragraph: She used to depend very much on me to help her through the day. Now I cannot help her. I am very worried about what is going to happen to her in the future when I am no longer around. 20. The plaintiff at par 50 speaks of his daughter Helga who is 40 years of age. Their granddaughter, Clarissa, is 10 and she lives with Helga in the garden flat. Helga works full-time. The plaintiff and his wife used to look after Clarissa during the school holidays. The plaintiff since the commencement of his troubles in 2004 has been effectively confined to the house except for medical outings. He said at par 52: I cannot go to Mass or meet with friends for a meal. We are now reliant on our friends coming to see us at our home in order to see them at all. 21. The plaintiff is now unable to carry out gardening or maintenance work around the house (see par 53). He is getting some help from carers and gardeners organised by the Dust Diseases Board which, it is agreed, will come to an end when his life ends. The state of his garden has deteriorated (see par 53). He said that before he has a shower he uses the oxygen for about 10 minutes then he goes in and sits on a chair in the shower to have his shower. His wife helps to wash him. When he gets out of the shower his wife dries him. He said by the time that he has showered and dressed he is exhausted. His wife is not able to help with his medication because her eyesight is so poor. 22. As regards life expectancy there is evidence from Dr Clarke suggesting in March that the plaintiff might hope to live until about mid-September. Others in the case have proceeded on the footing that that is the opinion to be accepted. 23. The plaintiff was asked whether his wife's eyesight would have permitted her to go to Europe this year and his assessment was that he did not think that she would have been able to travel because of the state of her eyesight. 24. Mrs Bricis gave evidence which was broadly confirmatory of her husband's. She used to be a member of a choir but she is unable to get to the choir now and she has had to give that away. She thought that her eyesight was deteriorating. She said of herself that she was pretty fit for her age and when asked what that was she invited the questioner to have a guess. She confirmed that if she now has a need to go to the bank a carer has to take her. 25. I accept readily the evidence that the plaintiff and his wife have given. The only possible area of cloud over any of it was to do with their estimates of how long things took to do around the house and shopping and so on but apart from that I accept the submission that they were impressive people. Indeed they were. I accept the submission that they have made a good and full life, that they have had a long and happy marriage and that they had set up and maintained an attractive house and garden. Notwithstanding that he is 79 years old, until the onset of his sickness related to mesothelioma the plaintiff was living a full and active life. It was submitted on his behalf that one might properly infer that he had a virile mind and I accept that submission. I accept also that his family life was closely intertwined with his spiritual life which was very important to him. At a time when his earthly life is about to come to an end to be deprived of the comfort of the practice of his religion would be a serious matter. I accept the plaintiff's assessment that in his mind his garden is now unsatisfactory. 26. It was submitted that when one considers the various attendances for treatment and drainage of his lungs and the like one might readily understand and accept his complaints of extreme breathlessness. That submission, I think, is well founded. It was also submitted that such heart trouble as he had was under control as a result of the treatment from Dr Lau until the onset of sickness related to the mesothelioma (see in this regard PX7). I accept the submission. 27. Turning to the question of what is the appropriate provision for general damages, learned counsel has provided as an aide-memoire a schedule of damages which incorporates the submissions made on the plaintiff's behalf. The general damages have been done in two lots, firstly related to the ARPD and asbestosis and then in relation to mesothelioma and related conditions. That approach has utility when it comes to calculating interest. The defendant submits that what the Court must do is assess one sum for general damages which takes account of the effects of asbestos exposure on the plaintiff. I think that submission is correct although the approach taken to the calculation of interest in the schedule of damages is helpful. 28. Having regard to the length of time over which the plaintiff has been troubled by breathing difficulties as a result of the lesser conditions, if I may so describe them, and of the other matters to which I have adverted, I think that the appropriate sum for general damages is one of $180,000. Interest might be allowed on so much of that sum as relates to the ARPD asbestosis condition which I accept might be notionally set at $30,000 over four years at 2 per cent, $2,400. Interest on that part of the general damages referrable to mesothelioma and related conditions might be assessed at 2 per cent on $120,000 for one year which I calculate to be $2,400. 29. Damages for the loss of expectation of life, a head of damages which conventionally attracts damages in a modest sum I assess at $8,000. The cost of the provision of care for the plaintiff since the onset of his difficulties in 2004 has been agreed at $45,000. That sum should be included. Past out of pocket expenses are the subject of a Health Insurance Commission certificate evidencing a liability to the Health Insurance Commission of $4,835. That should be included. 30. The plaintiff has obtained a quote for the painting of his house. He said that over the years he has done the house painting and that it was done four years ago. The quote was for $7,500 inclusive of paint. It seems to me problematical to find that an 80 year old man is going to set about painting his house. Nonetheless, the defendant is willing to concede that there is a chance that that might occur and that some allowance might properly be made for the chance. I allow $2,000. 31. We come then to the area of the claim which initially was creating difficulty for the parties, namely the assessment of damages pursuant to the principle in Sullivan v Gordon (1999) 47 NSWLR 319. That is, should the plaintiff be awarded damages because of a need in him to provide services for his wife. This assessment is undertaken in the knowledge that the High Court has reserved its decision in respect of the proper principles to be applied in Sullivan v Gordon matters, in the case of CSR Limited and Anor v Eddy the Administrator Representing the Estate of Thompson [2005] HCA Trans 390. The argument took place in the High Court on 15 June 2005. Judgment has not yet been given. There is also a Dust Diseases case in which the plaintiff's name was Harmer DDT189 of 2004, which is the subject of appeal in the Court of Appeal in New South Wales in respect of this same issue. Trial judges are required not to be daunted by things like that so we will proceed. 32. In considering the matter generally I have been much assisted by a judgment of Curtis J in a matter of Worbs v Bluescope Steel (AIS) Pty Limited DDT 98 of 2004 in which judgment was given on 3 June 2005. Curtis J has considered the award of damages under this head in detail and by reference to decided cases. He points out that an injury to a plaintiff may produce a loss of capacity in the plaintiff on the one hand or alternatively a need in the plaintiff which is to be satisfied by the provision of services on the other. He said at par 27: The essential point made by the Court in Sullivan v Gordon when overruling Burnicle v Ciatelli is that in some cases a loss of capacity to provide services to a plaintiff's family may constitute an accident caused need. 33. Sullivan v Gordon was concerned with the need in a brain damaged young woman for the provision of care to look after children which she was having. The present case concerns whether or not there is a need in the plaintiff to care for his sight-impaired wife. It is accepted by the defendant that this is a proper case in which to make some provision by way of damages for such a need. The quantification of the damages and whether they are described as general damages or a separate head of damages is not the subject of agreement. 34. The areas of need to be met are referred to in an occupational therapy report of Anna Castle-Burton bearing date 14 April 2005 which is PX3 in the proceedings. At page 23 of the report at par 6.13 and 6.14 the author pointed out that the plaintiff was required to undertake the shopping, cleaning, bill paying, driving, spring cleaning tasks and assist with laundry due to his wife's sight difficulties. He was also required to escort her to community activities outside the home and drive her to appointments because she could no longer drive. The parties have been able to agree on a rate at which the provision of such services is properly to be costed, the rate is $37 per hour. I should say that once one gets to that stage it does not seem to me to matter much whether you describe the damages as being assessed under a separate head of damages or whether you do the calculation and then lump it in as part of general damages. I will attempt the calculation and leave the assessment of damages as a separate head of damages but at least it will be clear what has been allowed on this account. 35. As regards shopping submissions have been made that while eight hours may have been claimed, six hours is reasonable. The defendant says that that is too extravagant and that one can manage with one major shop per week and a couple of lesser calls. Judges are not immune from shopping. I think that it is reasonable to allow three hours per week in respect of shopping at the agreed rate. Similarly as regards domestic chores, cleaning of house and so on, it seems to me reasonable to allow five hours per week in respect of that matter and a further four hours per week for transporting Mrs Bricis, attending to her banking, taking her to appointments, attending to any documentary matters of whatever nature and generally acting as her eyes. 36. It follows that I find that 12 hours per week at the agreed rate should be allowed, that is $444 per week. If one applies the multiplier for eight years, 372, a subtotal of $165,168 is obtained. Because of the ages of the parties in respect of which these calculations are being undertaken it is submitted that a hefty discount might properly be applied. I accept the submission. A discount of one-third should be applied, in my view, to take account of those matters. One-third of $165,168 is $55,056. That will leave $110,112 to be allowed in respect of the Sullivan v Gordon claim. That is in respect of the provision of services necessary because of the plaintiff's wife's blindness. 37. As regards gardening, a claim is made for five hours per week. Part of the gardening was done for the plaintiff's pleasure, part of it was done for the benefit of the family generally. Part of it amounts to maintaining some reasonable amenity in the surrounds of the house which part might reasonably be regarded as fulfilling a need in the plaintiff in respect of his wife's needs. I allow two hours per week for gardening over four years. The relevant multiplier is 196.9. The calculation comes to $14,570. I have made an allowance in respect of half the period claimed, that is in the notional years when the plaintiff was 79 to 83. As the period over which the calculation has been undertaken has been reduced I do not see that any further discounting is required. 38. By way of summary then, the damages are assessed as follows: General damages, $180,000 Interest referrable to ARPD asbestosis, $2,400 Interest referrable to mesothelioma, $2,400 Loss of expectation of life, $8,000 Agreed Griffiths v Kerkemeyer damages, $45,000 Past out of pocket expenses, $4,835 Allowance for the chance that the plaintiff would have painted the house, $2,000 Damages pursuant to the principle in Sullivan v Gordon, $110,112 Damages in respect of gardening, $14,570 Total, $369,317. 39. Verdict and judgment for the plaintiff in that sum. I order defendant to pay plaintiff's costs. Mr J Rush, QC, instructed by Turner Freeman appeared for the plaintiff Mr G Little, SC, instructed by A O Ellison and Co appeared for the defendant