Nottle v Wallaby Grip Ltd and Anor [2003] NSWDDT 10

Dust Diseases Tribunal of New South Wales

CITATION : Nottle v Wallaby Grip Ltd and Anor [2003] NSWDDT 10 Brendan James Nottle PARTIES : Wallaby Grip Ltd Wallaby Grip (BAE) Pty Ltd MATTER NUMBER(S) : 473 of 2002 JUDGMENT OF: Curtis J at 1 CATCHWORDS: Damages :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 30 April 2003 EX TEMPORE JUDGMENT DATE : 04/30/2003

FOR PLAINTIFF: Mr D G Letcher QC instructed by Turner Freeman LEGAL REPRESENTATIVES: FOR DEFENDANT Mr A Scotting instructed by Acuiti Legal

JUDGMENT: 1. The plaintiff, Brenton James Nottle, claims damages from Wallaby Grip Ltd and Wallaby Grip (BAE) Pty Ltd in consequence of his having contracted the fatal disease of mesothelioma as a result of their negligence. Neither defendant wishes to be heard on the issue of liability and it is unnecessary to give reasons to support a verdict for the plaintiff. The issues which remain concern the quantum of damages.

General Damages 2. The plaintiff was born on 14 December 1936 and is now only 66 years of age. He retired in 1988 and has enjoyed a fulfilling retirement, golfing twice each week, walking regularly with his wife and being deeply involved in the community. He has a daughter and a son who have succeeded in life beyond the expectations of all but the most optimistic parent. He has six grandchildren the youngest of whom is one. He is very close to his family. 3. In or about August 2002 the plaintiff developed respiratory symptoms and on 14 November 2002 he was given his diagnosis which he said he found "devastating." Since that time he has experienced episodes of extreme pain unrelieved by drugs as strong as morphine. He has had multiple medical interventions including a pleurodesis, in which by the introduction of talc into the lining between his lung and his chest wall, inflammation is caused so that the lung bonds to the chest wall in the healing process. This is an exquisitely painful procedure. Chemotherapy and radiotherapy have now removed the plaintiff's symptoms of pain although he does suffer serious fatigue and weakness. He is unable to walk more than a kilometre and sleeps during each day in the afternoon and sometimes each morning. The quality of his former active life has been terribly disrupted. 4. The defendant submits that because the plaintiff has achieved a relatively advanced age of 66 and is in no pain, the damages appropriate to his pain and suffering ought be in some sense modified in comparison with some others who suffer from this disease. I think in the present case the conclusion may be to the contrary. The plaintiff although stoic in evidence admitted to feeling very sad and feeling "let down badly." Although the future course of this disease will visit upon him unrelenting exquisite pain, the greater part of his suffering is torment of mind. The plaintiff has what is in one sense a relatively short period of perhaps 8 or 12 months to live, but it is to him an appalling prospect of time during which he will suffer increasing mental distress because of his impending needless death. That suffering will increase and compound most awfully his physical suffering. I have described, in other matters, the physical course of this disease. It is unnecessary to repeat these comments here today in the presence of the plaintiff and his wife. 5. Taking into account the particular circumstance of Mr Nottle I award $190,000.