Dust Diseases Tribunal of New South Wales CITATION : Shaw v Amaca Pty Ltd and Anor [2008] NSWDDT 3 Ian Alexander Shaw (Plaintiff) PARTIES : Amaca Pty Ltd (First Defendant) Seltsam Pty Ltd (Second Defendant) MATTER NUMBER(S) : 6268 of 2006 JUDGMENT OF: O'Meally P CATCHWORDS: Dust Diseases Tribunal :- Action for damages - Lability admitted - Asbestosis and asbestos related pleural disease - Damages assessed LEGISLATION CITED: Dust Diseases Tribunal Act 1989, S 11A CASES CITED: Lawrence v BHP Billiton Ltd and Anor (2003) 1 DDCR 50 DATES OF HEARING: 13 February 2008, 14 February 2008 DATE OF JUDGMENT: 14 February 2008 EX TEMPORE JUDGMENT DATE : 14 February 2008 Mr D Letcher, QC instructed by Turner Freeman appeared for the Plaintiff LEGAL REPRESENTATIVES: Mr D J Russell, SC instructed by Holman Webb Lawyers Brisbane and Leigh Virtue & Associates appeared for the First and Second Defendants JUDGMENT: JUDGMENT O'MEALLY P 1. This is a claim by Ian Alexander Shaw for provisional damages from Amaca Pty Limited and Seltsam Pty Limited. There is no dispute that as a result of exposure to asbestos the plaintiff has contracted asbestosis and asbestos related pleural disease. Neither is there a dispute that the plaintiff is entitled to damages. My task is to assess those damages. 2. At the outset it should be noted that the plaintiff was tortiously exposed to asbestos in Victoria, New South Wales and Queensland. S 11(A) of the Dust Diseases Tribunal Act 1989 creates a right to provisional damages. My view is that provisional damages are available only in respect of torts committed in New South Wales. S 11A deals with an entitlement to damages, not the manner of their assessment, and is therefore a substantiative provision (see Lawrence v BHP Billiton Ltd and Anor (2003) 1 DDCR 50 at 53 [10]). Nevertheless, the parties have agreed that I may proceed to assess damages without considering what proportions of those damages are associated with exposure in Victoria and Queensland. If the plaintiff is to return to court and seek further damages the likelihood is that they would be awarded in respect of an indivisible injury, and therefore the Tribunal would not be required to consider contributions made to such injury by exposure to asbestos in states other than New South Wales. All asbestos exposure, other than that which is de minimis, makes a material contribution to an indivisible injury. 3. The plaintiff was born on 16 July 1941. He was educated to age 15 and in January 1956 embarked upon an apprenticeship. In due course, he became a cabinetmaker. For four years preceding his ceasing work in December 2007 the plaintiff was employed as a cabinetmaker by Patriot Marine Pty Ltd on the Gold Coast of Queensland. His work there involved the construction of cabinets and other fittings to be installed in luxury boats, and I think it fair to say that he was particularly skilled at this type of work. Indeed, Mr Russell SC for the defendants said in submissions that he was an artisan rather than a tradesman. 4. I think it should also be noted that there is little difference, if any, in the position the plaintiff and the defendants take in respect of consequent disabilities. The plaintiff impressed me as an honest, accurate and reliable witness who, if anything, was conservative in describing his own disability. Moreover, I think it plain that he continued to work when others, suffering the discomfort, disability and pain which his asbestos diseases induced, would have ceased. 5. The medical evidence before me is the reports of Dr Allen, an eminent thoracic physician practising in Brisbane, who was qualified for the purposes of this case. The tender of a large number of reports from his treating thoracic physician was discouraged upon my being informed that they were largely historical and in no material respect different from the reports of Dr Allen. There are two reports of Dr Allen, the first of 14 October 2006 and the second of 24 January 2008. 6. In his first report, Dr Allen referred to the fact that the plaintiff had suffered angina and continues to do so, albeit infrequently. He referred to the fact that the plaintiff had ischaemic heart disease, had suffered a myocardial infarction and had a stent inserted. I mention this because the plaintiff complains of breathlessness. Breathlessness is often associated with cardiac disease as well as with asbestos disease. It is accepted by Mr Russell SC that he has an evidentiary onus to disentangle the cause of his breathlessness and that he has failed to discharge that onus, and thus I may proceed on the basis that all of the plaintiff's breathlessness is due to asbestos disease. 7. The plaintiff was very active physically. He played golf, walked, rode a bicycle and surfed, both body surfing and board surfing. In 1995 he sustained an accident in the surf when struck by a surfboard for which he had medical investigation and treatment. Part of the investigation involved a chest x-ray; this revealed the presence of pleural plaques. Pleural plaques, it is well known, are markers of exposure to asbestos, but not of themselves disabling. The plaintiff continued work after that accident without difficulty. 8. The cardiac stent was inserted in December 2004 after the infarction to which I have referred. The first symptoms of shortness of breath seemingly occurred in 1995. Breathlessness increased. Progressive x-rays and CT scans were carried out between October 1995 and the last radiological examination of 24 April 2007. Having been made aware of the presence of plaques, the plaintiff applied to the Dust Diseases Board for compensation. Initially it assessed him as 20% incapacitated and most recently as 40% incapacitated by asbestos disease. 9. Various changes were demonstrated on progressive x-ray and CT scanning. Significantly, in February 2006, plain x-ray showed a right pleural effusion. This was aspirated and this procedure was both uncomfortable and painful. When the plaintiff was seen by Dr Allen in October 2006 lung function tests were carried out. These showed a severe restrictive defect with a very mild airflow obstruction at low lung volumes. On the basis of those lung function tests, Dr Allen estimated that the plaintiff had an impairment of about 50 per cent of the whole person. He also expressed surprise that the plaintiff was able to do as much as he told Dr Allen he did. The limitations he described fitted in with the degree of impairment found by Dr Allen. 10. At that time, that is in October 2006, Dr Allen's view was that the plaintiff had severe progressive asbestos pleural disease with folded atelectasis and evidence of marked destruction of his lung from parenchymal bands. He also noted a reduction in chest wall expansion caused by pleural thickening and effusions. His view then was that these would cause a significant reduction of life expectancy which he then estimated at another eight years. So far as prognosis was concerned, he thought that the plaintiff would suffer from increasing exertional dyspnoea with weight loss, and there was a moderate probability that the plaintiff would have more pleural effusions and was at an increased risk of developing mesothelioma and lung cancer. 11. Dr Allen also noted that the plaintiff already had chest pain on the right side and it was his view that this would continue and could get worse. He also thought the plaintiff was at increased risk of developing pneumonia and pleurisy. When seen in January 2008, Dr Allen noted that the plaintiff had ceased work, a decision which, in the light of his presentation and the progression of symptoms, he thought reasonable. He noted that the plaintiff was breathless on exertion and on carrying heavy items or bending over to lift. The occasional chest pain was still present. He noted that the plaintiff continued to play golf, though then with a buggy. Lung function tests were repeated and these showed little change. 12. Though there had been no significant change in lung function since the first consultation, the plaintiff did appear to Dr Allen to be more breathless on exertion and was continuing to lose weight. He thought this could be because asbestos diseases are an inflammatory process, and like all inflammatory processes, lead to a release of various interleukens which can cause weight loss and general condition deterioration. 13. The quality of his life has been adversely affected. His condition will continue to deteriorate. Asbestosis and asbestos related pleural disease characteristically are more marked by discomfort than by severe and intractable pain, but the plaintiff is likely to endure increasing discomfort for a period of some six and a half years. All these matters are to be considered in determining an amount appropriate to compensate the plaintiff for the pain and discomfort he has experienced, is experiencing and is likely to experience in the future. 14. I think a sum appropriate to compensate the plaintiff for past and future pain, suffering and discomfort and loss of the amenities of life is $100,000. Of this sum, 30 per cent should be allocated to the past and interest calculated from an agreed date in 1995. 15. There has been a degree of agreement between the parties on other items of damages and for the compromises necessary to make them and for the good will that that involved I congratulate them. 16. An appropriate sum for loss of expectation of life is agreed at $14,000. Loss of pension bonus is agreed at $23,402. The HIC component has been agreed at $1,000. Past economic loss has been calculated to be $5,200, but his entitlement to that amount is not agreed. What remain in dispute are past economic loss, loss of earning capacity, and amounts appropriate for lost superannuation entitlements and for past and future services. 17. Dealing first with past and future services, the observation should be made that their assessment is a task which can never be concluded with any degree of precision or accuracy. Matters of impression are involved and, at best, a broad brush applied to situations which, in a number of respects, are artificial. 18. In his declaration, required to be filed in accordance with the Dust Diseases Tribunal Regulation, the plaintiff, at the beginning of p 34, made reference to some of the matters he thought then would soon be beyond him. These included lawn mowing, mopping, vacuuming, lifting things when shopping and some other tasks around the home, including cleaning windows and the glass fence around the swimming pool. Also mentioned were hanging out washing, cleaning and vacuuming cars, taking out the rubbish and work in the garden. In his affidavit, which together with the declaration was tendered in these proceedings, he said (in par 21) that his wife now spends about eight hours per week performing tasks around the home which he once performed. He said more strenuous tasks such as mowing, cleaning the pool fence, gardening and spring cleaning were carried out by his wife. He said he tried to help where he could, but was limited in the tasks he could carry out. 19. In cross-examination by Mr Russell SC, he was asked about the tasks of lawn mowing, vacuuming, sweeping, mopping, window and pool fence cleaning. Although it is not necessarily an accurate approach, Mr Russell calculates from his evidence in cross examination, that those tasks which he once performed, now occupy his wife, not for eight hours a week, but for 1.5 hours per week. The inability to perform tasks which have necessitated assistance are impossible to determine with any degree of accuracy in the absence of meticulous diary notes or records of observations and, of course, it would be surprising if such records were kept or such observations made. 20. The plaintiff's condition is, as has been noted, likely to deteriorate with the passage of time. Beginning at par 15 of his report of 24 January 2008, Dr Allen said in respect of future care and assistance, that within the next two years he would require help with an increasing number of tasks around the house, starting with household maintenance, and within the next three to four years he may require assistance for personal care and attention at home. The possibility of domiciliary oxygen was mentioned, the significance of that being that the plaintiff would have limited mobility and would need to carry an oxygen tank when leaving the home or be connected to a concentrator or tank at home. 21. Applying a broad brush and doing the best I can on the evidence, I think an appropriate way to approach the assessment using a rate which has been agreed at $30 per hour is this. For past services until today assistance should be allowed for two hours per week. From today for the next two years assistance of four hours per week should be allowed; for the next one year five hours per week; for the next year 10 hours per week; for the two years following 20 hours per week and for the six months then ensuring, 40 hours per week. 22. In respect of lost earning capacity, it is submitted on behalf of the plaintiff that I should proceed on the basis that the plaintiff would have continued working to age 75 and I am persuaded to that view. The plaintiff did apply for pension bonus which would have been payable had he continued to work till age 70. Mr Russell SC submits that I would not be persuaded that the plaintiff would have continued to work until age 75 because there was no financial or economic incentive which would persuade him to do so. I think I have made it clear that I accept the plaintiff as an honest and reliable witness and I accept that it was his intention to work to age 75 though, as he said, for fewer days per week between the ages of 70 and 75 than between the ages of 65 and 70. 23. In the course of cross-examination the plaintiff conceded that he thought he could do some light woodwork, providing there was no carrying and he was able to work at a bench. He conceded the possibility that he might be able to do that for 20 hours per week. The loss of earning capacity is a fact which should be proved. Frequently, it is said that in the absence of evidence a judge must do his or her best to determine the question. In Professor Luntz' book Assessment of Damages for Personal Injury and Death published in 2006, he said at p 162: A defendant who contends that the plaintiff has a residual capacity has an evidentiary onus of adducing evidence of what the plaintiff is capable of performing and what jobs are open to a person with such a residual capacity. And later at p 162: The court must do its best to value the actual loss to the plaintiff from whatever evidence it has or its own knowledge of earnings in occupations it finds are still open to the plaintiff. 24. One must take account of the fact that the plaintiff is now 66 years old and though he made the concessions to Mr Russell SC to which I have referred, by no means do they establish that work of these characters is available in the labour market reasonably accessible to him. He continued to work, as has been noted, when others may well have stopped. I think it reasonable to conclude in the circumstances that in the labour market in which the plaintiff lives he is totally incapacitated for work. Calculations should be made on the basis that between now and the age of 70 he would have earned $650 per week, which should be discounted for vicissitudes by 15 per cent, and between the ages of 70 to 75 he would have earned $325 per week, which should be discounted by 25 per cent for vicissitudes. On the basis that he has been totally incapacitated since ceasing work, $5,200 should be allowed for past economic loss. 25. In respect of the findings I have made relating to past and future care and loss of earning capacity, calculations should be made and handed to me. The lost superannuation entitlement should also be calculated in accordance with those findings. 26. There will be verdict for the plaintiff and judgment in the sum of $450,151 made up as follows: General damages $100,000.00 Interest on past general damages $7,200.00 Loss of expectancy of life $14,000.00 HIC component $1,000.00 Past economic loss $5,200.00 Loss of earning capacity to age 70 $95,748.00 Loss of earning capacity to age 75 $53,280.00 Lost past superannuation $602.00 Loss of superannuation to age 70 $11,083.00 Loss of superannuation to age 75 $6,167.00 Loss of pension bonus $23,402.00 Past care $6,240.00 Future care for next 1 year $12,156.00 For the following year $7,271.00 For the year following $14,109.00 For the 2 years following $53,973.00 For the 6 months then ensuing $38,720.00 Making a total of $450,151.00 27. I order that the plaintiff may claim further damages should he develop any of asbestos induced carcinoma, lung cancer or mesothelioma. 28. The defendants will pay plaintiff's costs as agreed or assessed and indemnity costs from 21 January 2009. Mr D Letcher QC instructed by Turner Freeman appeared for the Plaintiff Mr D J Russell SC instructed by Holman Webb Lawyers Brisbane and Leigh Virtue & Associates appeared for the First and Second Defendants 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.