Muyt v Wallaby Grip Ltd & Anor [2002] NSWDDT 24

Dust Diseases Tribunal of New South Wales

CITATION : Muyt v Wallaby Grip Ltd & Anor [2002] NSWDDT 24 Bob Muyt PARTIES : Wallaby Grip Limited Amaca Pty Ltd (Formerly known as James Hardie & Coy Pty Ltd) MATTER NUMBER(S) : 379 of 2002 JUDGMENT OF: Maguire J at 1 CATCHWORDS: :- Employer and Employee - LEGISLATION CITED: CASES CITED: Van Gurvan v Fenton (1992) 175 CLR 327 DATES OF HEARING: 21/11/2002, 25/11/2002 EX TEMPORE JUDGMENT DATE : 11/27/2002

Ms A Katzmann SC appeared for the Plaintiff LEGAL REPRESENTATIVES: Mr D Russell appeared for the 1st Defendant Mr M Gilbert appeared for the 2nd Defendant

JUDGMENT: 1. This plaintiff was born on 16 May 1933 in Holland. It follows that he is now rising 70. He left school in 1952 and arrived in Tasmania in February of that year. About 1954 he became employed by the Australian Paper Mills in that State, and he remained in that employment until in 1956 he met his first wife and moved with her to Sydney. In 1970 he set up a business at Brookvale with the lady who was to become his second wife. On 14 June 1974 he married that lady. In the following year they moved to live at Bowral. The plaintiff and Mrs Muyt have lived in the Southern Highlands ever since. The move there was dictated by an extension of the business that were together running. I took evidence from each of them at their present home in Bowral last Thursday. 2. About 1977 the plaintiff was involved in extensive renovations of certain premises; that is, he did some work himself partly demolishing and partly rebuilding one or two buildings on a property that he owned. It is the plaintiff's case that he suffers from mesothelioma contracted as a result of the inhalation by him of asbestos dust and fibre. He asserts that he was exposed to the products of the first defendant whilst employed by Australia Paper Manufacturers and the products of the second defendant during the renovations at Bowral. Each of the defendants is liable to the plaintiff. Admissions made by counsel for the first defendant on Thursday and by counsel for the second defendant on Monday together with a great deal of scientific, historical and other evidence which I need not recite and the fact that each declined to make any submissions to the contrary dictate that I must so find without further ado. 3. The issue then is damages. The most difficult issue in the case is the assessment I must make of the plaintiff's progression from today until his death, which will result from his condition, which has been brought about by the torts of the defendants. Ms Katzmann S.C. for the plaintiff urges me to find that the plaintiff will survive for another nine months. Mr Russell S.C. for the first defendant urges me to find that the plaintiff will survive for only three months. 4. The first indications of what might be the plaintiff's condition came in late 2000. I began to experience some health problems approximately two years ago. I was doing a lot of driving, I had back trouble around the area of my right kidney, which I attributed to the driving. However, my back seemed to get worse and I was also getting short of breath. With the shortness of breath I experienced pain from the right side of my chest at the bottom of the rib cage across my body into my back. 5. The plaintiff's general practitioner diagnosed pneumonia. I am unable to decide that that was or was not a correct diagnosis. In April of this year his breathing became worse, and I accept his evidence in that regard. In April 2002 my shortness of breath exacerbated when I undertook any activity which required physical exertion on my part. On 31 July 2002 I became extremely tired. I went for a hair cut and following the hair cut I developed acute breathlessness and I felt like I was choking. It was a terrifying experience, I thought I was having a heart attack. 6. He was admitted to Bowral Hospital that day. The doctors responsible reported jointly. Mr Bob Muyt was admitted to Bowral Hospital in 31.7.02. He presented with tache palpitations and some breathlessness as well as some chest discomfort. On presentation he was in septraventricular rhythm, there were some features of atrial flutter with isoptin and synus massage synus rhythm was restored. Clinically chest rales were apparent in the right base with a reduced percussion note, the chest x-ray confirmed a large mass. This was evaluated further with a CT scan which shows an extensive pleural soft tissue mass in the right hemithorax. The lung underneath seems to be restricted. The possibility of the mesothelioma or pleural metastasis is high. Other investigations included an alkaline phosphatase elevated at 182 GGT98, ESR76, renal function basically normal. He has been referred to Dr Matthew Bayfield for evaluation. 7. I accept the plaintiff's evidence that he has not eaten a meal of solid food since the day of his admission to hospital. On the following day the CT scan referred to was had. That is reported in part as follows: Extensive pleural soft tissue mass right hemithorax which appears to be infiltrating the interior and posterior mediastinum, miototic process either mesothelioma or diffuse pleural metastasis is considered most likely. That is a report from Dr Phillip Whistler, the radiologist responsible for the test. 8. On 3 August the plaintiff was discharged from the Bowral Hospital and returned home. On 5 August he saw Dr Bayfield, a surgeon, at Newtown. He was a 69 year old man who had been admitted to Bowral Hospital on 31 July 2002 with palpitations and breathlessness. He had worked as a truck driver and salesman for many years and had been a heavy cigarette smoker until 12 months prior to me meeting him. On review he admitted to significant weight loss, chest wall discomfort and shortness of breath in recent times. The diagnosis of a chest problem was made following his admission to Bowral Hospital where he was in supraventricular tachycardia. Chest x-ray performed on admission showed a large right-sided mass which was confirmed on subsequent CT scan of the chest. He was referred to me for further investigation and management if appropriate. Further: My feels were that this gentleman was likely to have a malignant mesothelioma on the basis of his chest x-ray and CT scan findings and his antecedent clinical course. My plan was to investigate him by CT guided needle biopysy as the first course. This was performed in Bowral but the cytology obtained was indeterminate. As agreed with him at the time of the initial consultation as the cytology was negative I therefore arranged for him to be admitted to Royal Prince Alfred Hospital for a right thoracoscopy and pleural biopsy. This was schedule for 20 August 2002 but deferred for one week due to unavailability of a post-operative bed. The procedure was performed therefore at Royal Prince Alfred Hospital on 27 August 2002. 9. Meanwhile he had again, as Dr Bayfield suggests, been admitted to the Bowral Hospital on 6 August 2002 and further on 14 August 2002 he had his first visit from a palliative care nurse, who has been seeing him quite frequently ever since. The plaintiff himself describes the biopsy that did not happen on 20 August 2002. I was supposed to go into Prince Alfred on 20 August for a further biopsy. Jenni drove us again, it was a terrible trip, I was very sick and I was vomiting. It was my first day out of bed since I went into Bowral Hospital apart from going to see Dr Bayfield. We got there at 8 am. We had to walk from the Medical Centre in Carillon Avenue to the Page Chest Pavillion. They didn't give me a wheelchair. I was extremely weak and I almost past out. I was in a lot of pain and I was quite anxious. I didn't really know what to think. Then at about 1 pm Dr Bayfield came down and said `There are too many emergencies and not enough beds, a lot of staff have called in sick. Are you a private patient, if so we can make a definite appointment, but if not then you can either come back the following morning and try again or make another appointment.' I didn't have private health cover, we didn't want to be mucked about again so we made another appointment and I had a surgical procedure the following week. I accept that evidence. 10. Following the biopsy on 27 August he was discharged home the following day. Issues arise about the level of care that the plaintiff has needed and will need for the future. The notes of the palliative care nurse are in evidence and throw considerable light on the plaintiff's condition since 14 August. I will not set out the detail but they trace the plaintiff's escalating need for painkilling drugs. Further the notes trace his requirements for attention from time to time. On 7 September he was described as uncomfortable and sweating and having hot flushes. Two days later it is recorded that he had needed five breakthrough doses of Ordine. This suggest to me that he would need to have someone in constant attendance to dispense the medication. On 13 September he needed only one breakthrough dose during the night. On 23 September he was noted to be using an oxygen concentrator. A week later the nurse records that he has good days and bad days. For my own part I simply observe that it seems unlikely that anyone could know in advance which kind of day was coming up. On 16 October she has written: Had a bad night, waiting on the oxygen delivery. 11. Two days later she noted that the oxygen cylinder has arrived. On 4 November she has written: Bob having sleepless nights and sleeping in the day. 12. Two days later she recorded swelling in both feet. On 11 November she records that lumps have suddenly appeared between his shoulder-blades. The notes in evidence do not extend beyond 18 November. There are frequent references to the state of his bowels and difficulties therewith and to a lesion on the skin over the coccyx. 13. Mrs Muyt describes (at p 14 of the transcript) his progress since his discharge from Bowral Hospital early in August. Question When he was discharged from Bowral Hospital following that first admission did things change around the house. Answer Tremendously, he just didn't get out of bed again, he was just exhausted and just stopped eating, stopped everything, just stopped. Question What did that mean insofar as your activities were concerned Answer It just meant that I was here 24 hours a day, attending him, helping him. I was trying to get him to eat, I was trying to get him - I was just looking after him. I had to help him with his showering, I had to learn how to shave him because he couldn't even do that. He just was incredibly weak and it was, well, it just changed everything. My life stopped too I guess in that way but I just had to be here. Question At any time since then have you been able to leave him on his own. Answer I leave him for probably at the most say 25 minutes, half an hour to go up to the shops, if I go up and get the paper. If I know I am going t be any longer than that, if I am going to be more than 2 hours at the absolute most I get somebody to come in and sit with him, I've got a neighbour downstairs who will come up and sit with him, my sister who lives in Bowral will come and sit with him and he just - I can't leave him. He doesn't like me to leave him at all actually, but he's happy enough to have them but if it was any longer than that I couldn't. Question Why is it necessary to have somebody here with him all the time. Answer Well, I'm really frightened that he will fall, and the nurses have said to me it is so important that he doesn't fall, and he's incredibly weak and just to get up to go to the toilet, and I'm frightened with these oxygen things that he's going to trip over and then you know - he just can't be on his own really. If he needs a drink, you know, if he needs - you've just got to be there to get things for him all the time. Question We understand that he has deteriorated since July. Answer Tremendously. Question You have speaking in the present tense about him, about having to be there for him. Answer Yes. Question But do we understand that you indicate that that has been the situation ever since he came out of hospital for the first time. Answer Totally. 14. Over the page. Answer We get up and the first thing we do is have the medication, and I make him a milkshake to have that, that's what he always has it with every morning. Then we go through the routine of, you know, I do my tidy up and I get him up to sit in the chair while I make the bed and change the bed, then we get him - have a bed bath, which probably takes us about an hour I suppose by the time we do that. I massage Bob's feet because they're swelling, and his elbows and shoulders and sometimes his back as well. I try to do that at least twice a day and sort of it's about lunch time and then I'm just constantly getting him a little bit of ice cream or fruit and jelly or whatever, that's about all he ever gets down, and I'm just doing that and I'm here. Then we have to go through the medication at night and if he's in here we just go, you know, back and forth, help him to the toilet. I get him up into the shower, the palliative care nurse has brought me a seat for him to sit on there because we need to wash his hair about three or four times a week and I'll get that in, but he can't bear anything over his face, so even the showering is a major thing becasue we sort of have to do everything backwards like this, because even the water running over his face seems to take his breathe away. That's it, I wash and iron and wash and iron because I change the bed constantly, and his pyjamas and that's really - I can't think of anything else. Question That is the average day. Answer That's the average day. Question Has that changed since he came out of hospital in July. Answer No, that has been how he has been from that day really. 15. Except for a reference to the administration of medication in the night that passage of the evidence deals only with the hours of daylight. Elsewhere it is made quite clear that his requirements during the night are sometimes quite extensive. None of the cross-examination directed to this witness canvassed these parts of her evidence. The plaintiff himself dealt with the same matters. I am now a poor and restless sleeper. It is the pain, discomfort and breathlessness that causes me to have trouble relaxing and sleeping. I need Barbara by my side at all times, I feel unsafe without her. I am comforted by her presence, I do not know what I would do without her. Barbara is tired and kept awake all night. She has not had a good night's sleep since I was diagnosed. Some days I can see the exhaustion in her face. If I didn't have Barbara I could not stay at home as I need full-time nursing care. Barbara and I have discussed this and we have agreed that I will stay home and be nursed by her for the remainder of my life. I cannot even go to the bathroom or to the toilet or even undertake the most basic tasks of personal hygiene without assistance from Barbara. I have needed Barbara to be by my side 24 hours a day since my admission into hospital on 31 July. She is constantly on the go. Since 31 July Barbara has only left me for a period of only 1 hour at a time. When Barbara does go out it is only to buy my medication and groceries and then she hurries back. I am very uncomfortable and anxious when Barbara is not by my side. 16. I accept absolutely the evidence of each of the plaintiff and Mrs Muyt that I have just related. 17. On 8 October 2002 the plaintiff was assessed by Ms Heather Tchan, an occupational therapist for medico-legal purposes. Ms Tchan's 30 page report is in evidence. Submissions were put to me that to some extent Ms Tchan does not support the need for personal care as deposed to by Mrs Muyt and by the plaintiff. I simply note that no such material from the Tchan report was put to either of them in cross-examination. 18. Dr Simon Grant, a physician of Bowral, had seen the plaintiff in the hospital in July. He reported on 1 November in part: Because of the advanced nature of his disease supportive treatments only can be provided. There is little evidence to suggest that radiotherapy, chemotherapy or other will greatly prolong the prognosis. The prognosis is also difficult to determine depending on the degree of malignancy. Given the relative short duration of his symptoms I fear his disease may be more aggressive than usual, although I am unable to give an exact duration. 19. Dr Bayfield, of course, had seen the plaintiff in August. He reported on 4 November. This gentleman in my opinion has a locally bulky and advanced malignant mesothelioma and already has signs of advancing debilitation and cachexia related to the tumour. I would expect that his life expectancy could be measured in only months. There is little available to him in the way of treatment even of a palliative nature. 20. On 19 October the plaintiff was examined by Professor McKenzie, a respiratory physician of Randwick, who was seeing him on behalf of the first defendant. At the time of my examination Mr Muyt was limited by breathlessness on minimal exertion, he was able to get to the bathroom adjacent to his bedroom but only with some difficulty and assistance. He preferred to have a bed bath. He had a cough which was productive of small amounts of sputum and he felt that this was heavier than normal. Ironically the lower back pains which had troubled him for so long had resolved. However, he was aware of some right lower chest pain and severe breathlessness for which he was taking morphine and Tramal. On examination he looked frail and wasted, consistent with significant recent weight loss. He appeared comfortable lying in bed. At one stage he removed a nasal prong supplying supplemental oxygen and did not appear to be visibly breathless thereafter. I did not assess his ability to walk around the room. Further: The prognosis is very poor. Mr Muyt is severely disabled relatively soon after the diagnosis although the median survival for mesothelioma is approximately 12 months I doubt whether Mr Muyt will survive this long. Further: Mr Muyt is very frail and is currently requiring constant care from his wife and children. He is not capable of performing any maintenance tasks around the house and is barely capable of the activities of daily living. He will probably require nursing and other assistance in the near future, possibly for 4 hours a day, assuming that his family can continue to provide the current level of support. 21. On 20 November Professor McKenzie reported further: The future cost of medical care for Mr Muyt depends critically on his life expectancy. At the time of my examination I gained the impression that this would be well below the average for this condition and possibly as little as three months. At the time of my examination of Mr Muyt on 19 October this year he required almost constant care which at that time was being delivered by his wife and children who are very supportive. He was virtually bedbound but able to walk to the adjacent bathroom with some difficulty. I felt that if there was no significant improvement in his condition within the next few weeks or months he would be bedbound requiring constant care. 22. On 11 October Professor Breslin, who is a thoracic physician, examined the plaintiff on behalf of the second defendant. No report from Professor Breslin was introduced into evidence. 23. That then is the totality of the medical evidence which speaks of the condition and expected decline of this man. However, there are other matters to be taken into account. 24. One, it appears to me that the plaintiff, who had hitherto been a very strong and active man, has lost the will to live. He swore: Answer I'm sitting here and I'm fighting for breath all the time, it's that kind. In other words if I don't at times have some aid I just pass out or I'll choke. You guys forget that affidavit, I mentioned that, that I felt like choking to death. You sit there and you just go, you know, I'll bet if I did this right now, there's no breath there now, nothing, I couldn't even blow out a candle, I can't walk from here to the wall across my bedroom. Question What impact does that have on you emotionally. Answer Well, I'm past it now, I've accepted it now, I'm not fighting it now because - any more. I know it's no use to me, I know I've got to sit here and it's not going to get better it's going to get worse. 25. Two, my own observations of his frailty in the context of my own very considerable experience of cases of this kind persuade me that his regression to the point of death will not take long. Doing the best I can I find that the plaintiff's health will continue to decline until his death which I find will occur on or about 20 March 2003.