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: As the new pleural abnormalities have occurred after a specific event, namely, cardiac surgery, I doubt that progress in his pleural fibrosis and disability will occur. Such can happen, but it is unlikely in his case. I do not think that the deterioration will affect his life expectancy which currently, from the Australian Life Tables is still some 15 years. 6. The doctor went on to say that deterioration was possible and therefore it was proper to keep the plaintiff under review. The medical test results, which are appended to his report, include the following comment under the heading "Interpretation." There is a mixed restrictive and obstructive ventilatory defect which has progressed significantly over the last 3.5 years with a fall in FVC from 3.59 litres and FEV1 from 2.70 litres. TLC has fallen from 5.75 litres. Similarly lung diffusion is reduced and there is resting hypoxaemia. 7. The defendant's medical case rests upon the opinion of Dr Breslin, whose reports are DX.1. In the second of them which bears date 28 May 2004 Professor Breslin commented firstly about the cardiologist, Dr Demetriou's reports, noting that that doctor thought that for all practical intents and purposes his heart is now functioning virtually normally albeit with the support of some medication. Dr Breslin then dealt with the reports of Dr Michael Burns. He said that based on the new information then made available to him he saw no reason to change his diagnosis as expressed in his report of 20 February 2004. At p 5 of the earlier report the doctor said at par 2: He now has asbestos related pleural disease in the form of pleural plaques and bilateral diffuse pleural thickening. There is also some rounded atelectasis. At par 4 Dr Breslin said: I can find no evidence of asbestosis on the information available to me. The sentence continues but there is no need for my present purposes to repeat all of it. At par 5 the doctor repeated: His asbestos related disease then is pleural plaques, bilateral diffuse pleural thickening and rounded atelectasis. 8. Returning to the later report Dr Breslin said: I agree with Dr Burns that this man now has a 10 per cent respiratory incapacity as a consequence of his asbestos induced pleural disease and I also agree with Dr Burns that it is unlikely that there will be any further progression in his respiratory impairment because of his asbestos induced pleural disease. 9. Dr Breslin went on to say: I do not believe that other than surveillance costs there will be any need for additional costs in relation to his asbestos induced disease nor any significant contribution to any such costs from his asbestos induced pleural disease. Accordingly I do not believe there will be any need for home equipment, home oxygen, home maintenance, home handyman, home nursing or home care or any drug therapy as a consequence of his asbestos induced disease. 10. It will be seen that there is reasonable uniformity in the approaches of the doctors. Against the background of their opinions it is necessary to assess the evidence of the plaintiff. It is contained, firstly, in his affidavit, which is PX.1, and in oral evidence given in the Court yesterday. In many respects the evidence is not surprising. It is clear that the plaintiff has some medical problems which are unrelated to exposure to asbestos. His knees are sore and he has been offered surgery on both of them, a matter which apparently he is still considering. His low back is sore and he mentioned when giving evidence trouble at three different levels of his low back. His neck gives him trouble and he mentioned two levels in that part of his back which give difficulty. His hands are becoming clawed, which he said was the result of using them with hooks on the wharves over the years. 11. He was asked, when did he first have trouble with his breathing, and initially he picked a date which I think was just a mistake and about which no criticism is made of him. Clearly enough he fixed the onset of his breathing troubles by reference to the time he first went to the Dust Diseases Board and I think on balance that is probably when significant breathing troubles commenced. It is to be noted in this regard that he commenced attending on Dr Demetriou, cardiologist, in 1989, but those attendances appear to have been connected with chest pains, see for example the doctor's report of 15 December 2003, part of PX.5. The doctor's report gives many details about diagnosis of the plaintiff's heart condition and ultimately the operation undertaken on 13 December 2001 by Dr Matthew Horton, a cardiothoracic surgeon. It is perhaps convenient to pick up the narrative by reference to that doctor's report. It is clear that the plaintiff had a bad period following the heart surgery and that he has improved since. Dr Demetriou wrote at p 3 of the report of 15 December 2003: When last reviewed in October 2003 Mr Murrell was able to go up three flights of stairs before he developed shortness of breath. Denied orthopnea or nocturnal dyspnoea. Was active and mowing the lawn and denying chest pain. Further details are included. The doctor finished that part of his report by saying: It is quite clear from his clinical progress that after the initial problems associated with surgery Mr Murrell's heart has recovered and is now virtually normal. 12. The plaintiff was able in 2004 to go with his friends on a further overseas trip, this time to South Africa, although he said there were times on that trip when he was not able to join in all the activities. 13. I am satisfied then that the breathing difficulties upon which the plaintiff relies in his action commenced somewhere about the year 2000, that is at about the time he first applied to the Board. I accept that he has had some breathing difficulty from that time onwards. I find that the breathing troubles that he had were magnified considerably by the heart condition which was treated in 2001 and which troubled him into 2002. I accept readily that he continues to have impaired ventilatory function, as both Dr Burns and Dr Breslin have said. I accept that it is of the order of 10 per cent of that function; that is the loss. 14. The plaintiff said in his affidavit that he still mows the lawn but it takes him an hour now, not including breaks to catch his breath where he used to do it in 20 minutes straight. He was asked about his lawn. He said, transcript p 21: The lawn is about 12 feet by 8 feet at the back and the front is about 30 feet by 20 feet. 15. The plaintiff complained that his swimming in his backyard pool is more restricted than it was. He gave some detail about that. He said that up until the late 1990s he used to walk every day for about an hour to keep fit and since then he has stopped walking because of his breathing difficulties. It seems to me that the condition of his heart was more probably than not at least in part responsible for that interruption. Further, that his knees would have a bearing on that complaint too. 16. At par 33 the plaintiff sets out in his affidavit the material upon which he seeks damages for the provision of care for himself. It is a very short paragraph and it might usefully be included in full here. The paragraph said: Since about 2002 I have stopped helping my wife with domestic chores like cleaning, vacuuming, cooking and making the beds. Since that time I estimate that my wife has spent an extra 6 hours a week doing these things that I used to do. I can drive my wife to the shops but carrying shopping bags is now her role due to my breathlessness. I am angry that my wife has to carry shopping bags. That should be my job. 17. I wish to come back to that paragraph in a little while, but that was the affidavit material upon which the claim pursuant to Griffiths v Kerkemeyer was founded. 18. I turn then to consider what are the appropriate damages in the case. As I say I accept that the plaintiff has some breathing difficulties which result from his exposure to asbestos when he was a wharf labourer. I find further that he has the other medical problems about which I have spoken. The extent of the impairment of his lung function is modest. Learned counsel have made submissions which have been helpful about what they thought was the appropriate range of general damages was for the plaintiff. The plaintiff's counsel, Mr Sharpe, submitted that an appropriate range for general damages is between $60,000 and $80,000. Mr Scotting submitted that the appropriate range was from $15,000 to $25,000. I should say I accept the opinion of the doctors to the effect that the condition is not likely to get worse although that remains a possibility and will require that he be medically supervised in the future. An award of general damages in a case such as this one is very much a matter of impression. It seems to me that in light of the extent of the plaintiff's disability and of all the evidence the proper figure is one of $35,000. There should be an allowance for interest on $12,000, that figure relating to the past at 2 per cent, for 5 years since the onset of symptoms. 19. As regards damages pursuant to the principle in Griffiths v Kerkemeyer (1977) 139 CLR 161 the defendant submits that nothing should be allowed. The plaintiff submits that the mathematical calculations to put the matter into perspective throw up a figure of $109,544. I think the first thing that might be properly be said about this aspect of the claim is that the foundation upon which it rests, so far as the affidavit is concerned, is fairly modest. 20. Secondly, in respect of those things that the plaintiff no longer does that he said his wife does, the services might reasonably be described as minor domestic services. 21. Thirdly, they result, it seems to me, from the multitude of the plaintiff's physical problems and not only from a 10 per cent impairment in his ventilatory function. 22. I refer to what was said by Brennan J, as he then was, in Van Gervan v Fenton (1992) 175 CLR 327 at 340. At the foot of p 340 the learned judge said this: It is impossible to quantify with any pretence at precision the net benefit to an injured plaintiff of the company and minor services that he or she would have enjoyed by reason of the personal relationship between the plaintiff and the care provider or to put a value on the company and services which the plaintiff would have provided to the care provider by reason of their personal relationship if the plaintiff had not suffered the injury. In my view the only way to take this factor into account is this: it is appropriate to omit from the list of services to be paid for by the defendant some of the time spent or some of the minor services rendered by the care provider for the plaintiff where those services would have been provided in any event as an incident of an antecedent personal relationship between them provided the plaintiff is able to offer services to the care provider in return. 23. In this case the plaintiff is still able to cook; he does some of the cooking; he still mows the lawns; he still goes with is wife when the shopping is done; a couple of times a week for a minute or two she takes the shopping bags into the house. That is a very minor incident. It is said that she does the vacuuming now. Once again that seems to me to be a minor readjustment of domestic duties. The plaintiff's wife suffers from cardiac arrhythmia. There is nothing to suggest that the position is such that he is not able to offer services to her by way of return for the domestic services she offers to him. 24. In the circumstances of the present case it seems to me not appropriate to include damages to compensate the plaintiff for care provided domestically by his wife; that is damages calculated by reference to Griffiths v Kerkemeyer. 25. Further it may be noted in this regard that at the foot of p 2 of the report of 29 October 2003 Dr Burns said: In Mr Murrell's case I do not think he will need home nursing care or other home care to be provided by family members. 26. I turn then to the question of the provision of medical supervision for the plaintiff. Dr Burns set out, on p 2 of the report of 29 October 2003 (PX4), a number of items, the first five of which seem to me might properly be adopted. Although Dr Breslin puts slightly lesser costs on them the broad approach of the doctors is the same. Dr Burns provides for GP visits, which I think would be necessary. If one calculated a weekly figure from those five items one would arrive at a figure of around $15 per week. Over 13 years of the plaintiff's life that would be capitalised at $8,550 on 3 per cent tables. Discounted for vicissitudes by 15 per cent a figure of $7,267 is thrown up. The defendant urges a further discount because it submits that the most recent of the medical reports suggest that if the plaintiff goes back to the Dust Diseases Board he will obtain benefits from the Board which will include the payment of costs of medical supervision. That is something about which we just do not know. The evidence is that he has applied twice and been rejected. There is no material upon which a calculation of the chance such as is referred to in Malec v J C Hutton Pty Limited (1990) 164 CLR 638 can be undertaken. While acknowledging that there should not be double dip compensation I do not see how in the face of the evidence that I have before me that any further calculation can be made. It would be possible to say that the figure $7,267 ought be further reduced but I cannot see upon what logical basis that further reduction should be undertaken. 27. Those observations will I think suggest that the plaintiff is entitled to recover $43,467 calculated as follows: General damages: $35,000 Interest on that part of the $35,000 referrable to the past, namely, $12,000 at 2 per cent for 5 years: $ 1,200 Provision for medical supervision: $ 7,267 Total: $43,467 28. To these amounts should be added the agreed figure for past medical expenses $798.60 which gives a total $44,265.60. 29. A claim has been made for the cost of repairs to the roof of the plaintiff's house. An account has been provided in the sum of $1,500 which simply says, "Cash receipt being for repainting and repairs to tile roof." Bearing in mind that the plaintiff is 70 and that he has got trouble with his knees and his back at different levels, and with his hands, I am not satisfied that the need to pay for the repairs to the roof resulted from the impairment of his ventilatory function spoken of by Drs Breslin and Burns. I am not satisfied about that item of the claim. 30. I grant leave to the defendant to issue cross-claims against such parties as may be advised on or before Wednesday, 6 April 2005. 31. There will be verdict and judgment for the plaintiff for the sum of $44,265.60. 32. Order defendant to pay plaintiff's costs. 33. I grant leave to the plaintiff to amend the statement of claim at par 16 to include asbestosis. The conditions in respect of which the plaintiff may claim further damages are lung cancer, pleural mesothelioma, peritoneal mesothelioma, asbestos induced carcinoma of the lungs and other organs, and asbestosis. Mr J L Sharpe instructed by Turner Freeman appeared for the Plaintiff Mr A Scotting instructed by Blake Dawson Waldron appeared for the Defendant 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.