Murrell v Stevedoring Industry Finance Committee [2005] NSWDDT 2

Dust Diseases Tribunal of New South Wales

CITATION : Murrell v Stevedoring Industry Finance Committee [2005] NSWDDT 2

Leslie John Murrell PARTIES : Stevedoring Industry Finance Committee

MATTER NUMBER(S) : 22 of 2004

JUDGMENT OF: Duck J at 1

:- Dust Diseases Tribunal CATCHWORDS: assessment of provisional damages no allowance for minor domestic services

Griffiths v Kerkemeyer (1977) 139 CLR 161; CASES CITED: Van Gervan v Fenton (1992) 175 CLR 327 at 340; Malec v JC Hutton Pty Limited (1990) 164 CLR 638

DATES OF HEARING: 7 & 8 February 2005

EX TEMPORE JUDGMENT DATE : 02/08/2005

FOR PLAINTIFF: Mr J Sharpe instructed by Turner Freeman LEGAL REPRESENTATIVES: FOR DEFENDANT: Mr A Scotting instructed by Blake Dawson Waldron

JUDGMENT:

1. The plaintiff brings proceedings seeking provisional damages in respect of a condition of asbestos related pleural disease said to result from his employment over the years on the wharves in Sydney. The defendant is the Stevedoring Industry Finance Committee. At the commencement of the hearing the defendant's counsel, Mr Scotting, announced that from his client's point of view the matter could proceed as an assessment of damages and that is the way the matter has proceeded. 2. The plaintiff was born on 15 August 1934, he is now 70. He married firstly in 1953. He had two boys, one of whom died at a young age. He was then divorced. He married his present wife on 15 August 1982. He left school at 15 and had various jobs between 1949 and 1954, none of which appears to have exposed him to asbestos. On 25 October 1954 the plaintiff registered as a waterside worker in the Port of Sydney. In 1971 he began to work permanently on containers from which time there was no further exposure. His exposure occurred between the commencement of his work as a waterside worker and 1971. 3. In the year 2000 he approached the Dust Diseases Board because he had become aware that x-ray examination had revealed some changes in his lungs consequent upon exposure to asbestos. His lung function testing at that time or around that time was normal. He received no benefit from the Board. In late 2001 the plaintiff had a heart attack, he fell down in the street and the next day had a by-pass operation at St George Hospital. During the recovery from that operation he had trouble with his breathing but by about April in the following year that had settled down. He had developed a practice of travelling with friends in a group and in April 2002 it was their wish to go to Spain, Portugal and Morocco. The plaintiff was anxious to make the trip and notwithstanding the nature of the surgery he had undergone he was keen to keep those arrangements. The doctors expressed the view that he was well enough to do that and so he made the trip. 4. In respect of the results of his exposure to asbestos there is unanimity of opinion. In his own case the opinion of Dr Michael Burns has been tendered in reports which constitute PX.4. The second of the reports bears date 29 October 2003. For the purpose of preparing the report the doctor arranged for further respiratory function tests which were carried out at St Vincent's Hospital. A copy of the report was annexed to the doctor's report. There had been a decline in lung volumes since the previous tests of April 2000, this involved [ the doctor said] the vital capacity, residual volume and total lung capacity. These changes are consistent [he said] with his radiological abnormalities. 5. Those abnormalities are discussed in the report under the heading "X-Rays." The doctor spoke of bilateral basal pleural effusions present or what appeared to be fluid, he said. There were transpulmonary bands at the left base and previously seen pleural plaques. There was no radiological evidence of intrapulmonary fibrosis consistent with asbestosis. The doctor's comment about all of this was, I doubt that pleural opacities in Mr Murrell's case represent actual fluid still there after his operation in 2000. They are likely to be the result of organised fluid, which in my experience, occurs more frequently in persons with pre-existing asbestos related pleural lesions. I would call the condition asbestos related pleural disease and say now that there is an associated functional impairment of 10 per cent. The doctor went on to say this: