Dust Diseases Tribunal of New South Wales CITATION : Brennan v James Hardie & Co Pty Ltd [2001] NSWDDT 2 PARTIES : Winifred Brennan James Hardie & Coy Pty Ltd MATTER NUMBER(S) : 275 of 2000 JUDGMENT OF: Curtis J at 1 CATCHWORDS: Damages :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 26/02/2001, 27/02/2001 DATE OF JUDGMENT: 03/02/2001 FOR PLAINTIFF: Mr J Sharpe instructed by Turner Freeman LEGAL REPRESENTATIVES: FOR DEFENDANT Mr J Bartos instructed by Phillips Fox JUDGMENT: 1. The plaintiff was for many years married to a builder who made extensive use of the defendant's products. She inhaled asbestos fibres in the course of cleaning his work clothes. She also inhaled asbestos dust thrown off by asbestos products when she at times was present while her husband carried out the work. Exposure commenced in about 1966 and continued at least until 1984. As a result of this inhalation the plaintiff contracted the fatal disease of mesothelioma. The plaintiff's injuries were foreseeable to the defendant and preventable by the defendant. She is entitled to her verdict. DAMAGES GENERAL DAMAGES 2. The plaintiff was born on 18 February 1939 and is now 62 years of age. On 15 February 1958 the plaintiff, then just 19 years old, married her husband and embarked upon a lifetime of service. She initially kept house for her husband, his father, his brother and her brother. She has borne seven children: Kathleen, born 9 January 1959; James, 10 June 1960; Robert, 23 December 1961; Wayne, 12 May 1963; Martin, 31 December 1964; Stephen, 6 March 1966 and Raymond, 23 July 1974. In addition to these children the plaintiff in 1966 adopted Michael, then aged four and Patrick aged two. As if that were not enough the plaintiff also raised two grandchildren born to her daughter, Kathleen, after the breakup of Kathleen's marriage. 3. In addition to caring for her children and ultimately 17 grandchildren, the plaintiff was active in charity, working with Crisis Care for babies and children in distress, helping out the Red Cross, Meals on Wheels and the Anti-Cancer Council. In pursuit of parish activities she regularly visited the sick and the lonely. 4. In 1996 the plaintiff saw her local doctor, Dr Pace, complaining of cough and shortness of breath. She was misdiagnosed as then suffering from asthma. In 1998 the plaintiff endured an appalling year. In that year her husband was diagnosed with terminal bone cancer and five of her children were diagnosed as having contracted thyroid cancer. The plaintiff at the time, unknown to her, suffered from the insidious growth of her mesothelioma. The breathlessness continued to get worse while she cared for her husband. 5. In October 1998 x-rays showed fluid on her lungs. She did not do anything at that time because she was more concerned with her husband. As her breathlessness increased she finally in 1999 agreed to have the fluid drained and attended upon the Burnside Hospital on 9 February 1999 when a litre of fluid was drained from her lungs. Her breathlessness continued to worsen. On 19 April 1999 she went back to Dr Robinson for another x-ray which showed that the fluid had re-accumulated. Dr Robinson referred the plaintiff to Dr Peacock. She did not see him straight away because she was very worried about her husband. Eventually she saw Dr Peacock on 18 May 1999 and CT scans were taken. 6. On 14 July 1999 Dr Peacock performed pleural biopsies and a right video-assisted thoracotomy. Following upon those procedures Dr Peacock informed the plaintiff that she had mesothelioma. The plaintiff was told by Dr Peacock that she only had 12 months to live and it was suggested that her symptoms may be relieved by a talc pleurodesis. The plaintiff decided not to have that procedure because of her understanding that following the procedure she would spend some time incapacitated while recovering and she wished to remain relatively well in order to look after her husband. 7. When given the diagnosis the plaintiff was stunned and in disbelief. She understandably became very angry. She felt the unfairness of her circumstance as someone who had always thrived on being busy, working 18 hours a day, looking after 15 people in the home and assisting in running her husband's business. Her life, as she says, was productive, rewarding and worthwhile. 8. In early 2000 again the plaintiff's breathlessness increased and she commenced to have some pains in the right chest and night sweats. She understood her breathing difficulties were occasioned to her by further fluid build up in the lungs. Again the plaintiff refused to have the necessary treatment until the death of her husband. He died on 22 March 2000. 9. After the death of her husband the plaintiff's condition deteriorated. On 22 December 2000 she had a fall and the shortness of breath became severe. She had swelling in her back and a marked increase in pain. It was only then that the plaintiff submitted to the talc pleurodesis. On 10 January 2001 the plaintiff was admitted to Calvary Hospital where the pleurodesis was carried out. She was released home on 19 January 2001. She was in a lot of pain following that surgery and has continued to experience severe pain. Although she takes some medication it is the advice of Dr Peacock that she should remain off medication as far as possible to save it for later when she really needs it. 10. The plaintiff now cannot walk more than 10 metres without becoming breathless. Her breathlessness increases. She is in constant pain. She experiences nausea in the morning and does not have much appetite. She has a painful cough. She is becoming increasingly anxious. She is no longer able to carry out activities involving her family, the church or her charities. She presently lives by herself because, as she says, she does not have the patience to have other people around her. She does not wish to be around other people. She wishes to spend the last period of her life in St Mary's private hospice. Her overwhelming emotions, she says, are anger and sadness. 11. General damages in negligence actions represent value estimated in money terms for intangible, non-pecuniary loss. Restitutio in integrum is not possible and effectively the compensation is for solace: So far as the possession of money can in a particular case give pleasure or provide comfort money can properly be said to compensate. (Per Windeyer J in Teubner v Humble ((1963) 108 CLR 491 at 507)). 12. In Carson v John Fairfax and Sons Limited (178 CLR 44 at 71) Brennan J said: Damages are awarded . . . for the plaintiff's injured feelings including the hurt, anxiety, loss of self-esteem, the sense of indignity and the sense of outrage felt by the plaintiff. Although this passage related to compensatory damages for defamation it is no less apt in the present case. The question here is what sum is reasonable and proportionate not only to the exquisite pain confronting the plaintiff, the appalling reality of the manner of her impending death, but also the grief and outrage at the fact of that death itself. The sum must reflect the fact that her life itself is no trifling thing. The plaintiff must have the consolation that the community through this Tribunal values her life highly. 13. In this regard proportionality must be maintained between the plaintiff's entitlement to damages and the amounts routinely awarded for transient hurts, the subject of defamation and anti-discrimination actions. In Sullivan v Nicholas and Others ((1994) Aust Torts Reports 81-308 at 61,790) Mahony AP said: There is no market price for pain . . . but this does not mean of course that on each occasion the trial judge may follow his own intuitions as to the level of what is fair compensation in the existing society. The concept of fairness and justice involves two things: that the award in the particular case be in proper proportion to the awards for other losses and that like losses are compensated by like awards. These principles of proportionality and equality have to an extent been adopted in the law of damages. 14. I award the plaintiff $190,000. I allow interest in the sum of $4,000. SPECIAL DAMAGES Probable date of Death 15. Professor Alpers in his report of 21 December expressed the opinion that based upon his examination of 21 December 2000 the plaintiff may be expected to live another 2 years. That opinion was based upon the belief that the growth of the tumour appeared to be slow. The doctor noted that upon that examination the plaintiff was found to be a mentally and physically strong woman who had not yet lost weight or suffered from a lot of pain. The plaintiff suffered a fall some time after that examination and is no longer pain free. I accept her evidence that her pain is presently quite severe and that the doctor's opinion needs in that circumstance to be modified. 16. Dr Mark Holmes on 5 February 2001 examined the plaintiff in the interests of the defendant. Dr Holmes recorded the plaintiff had recently suffered a fall which had exacerbated her symptoms. He noted that she had ongoing pain and expressed the opinion that she was likely to succumb to the disease within one to two years. He observed that she had already passed the average life expectancy between diagnosis and death in cases of mesothelioma of six to 18 months. I have concluded that it is probable that for the purpose of calculation the plaintiff will probably die on 30 June 2002. Past Services April 1999 to 31 December 2000 17. Between April 1999 and 22 March 2000 when her husband died the plaintiff cared for her dying husband and she says that 18 hours of each day were devoted to this task. In consequence of these attentions arrangements were made for housekeeping assistance. Although a claim is made in respect of this housekeeping assistance pursuant to the principles in Griffiths v Kerkemeyer it does appear to me that the cause of this need was not the illness of the plaintiff but that of her husband. That this is so is evidenced by the fact that apart from the housekeeping provided by the local council, which continued, the other two carers engaged by the plaintiff prior to her husband's death did not continue beyond the date he died. Between her husband's death and the end of December 2000 the plaintiff was able to visit her children each month, prepare her own meals, and independently drive her motor care "for miles and miles". 18. Dr Alpers on 21 December 2000 noted that the plaintiff's weight was stable, she slept reasonably well. She could walk about 100 yards and she called herself a physically strong woman, which the doctor said he had no reason to doubt. At p 3 of his report he said: She is mentally and physically a strong woman who has not yet lost weight or suffers from a lot of pain. 19. The plaintiff was assessed on 6 December 2000 by Ann Morgan, occupational therapist. It was then noted that "the plaintiff lies down possibly three days per week for about 4 hours". She noted that the plaintiff visited her children every month and attended church daily most days, attending a church group and visiting the sick and lonely once per week for 2 hours. Ms Morgan noted that the plaintiff was then independent in all aspects of self care and that she got her own meals mostly and did not feel limited in driving her automatic car. I accept the statements by the plaintiff contained in her affidavit concerning the assistance which her family have given to her since the death of her husband. I also accept that the plaintiff has been unable to do heavy housework and that the 6 hours per week which have been provided to her by the local council are in some respects necessary. It does not appear that all those 6 hours are required because, as the plaintiff said, at p 35, she gets assistance for 3 hours on Wednesday but: On Friday, if I want to go to the hairdresser, if I want to go to the doctor, if I want medicine she'll take me and generally she makes me a cup of tea and we talk, she's like a carer but non active if you know what I mean. 20. I formed the view that while assistance may have been given to the plaintiff by members of her family, by her children and grandchildren prior to December 2000 that that assistance stemmed from their understandable desire to care for the plaintiff rather than from any need for the services which they provided. 21. On two occasions the plaintiff was discharged from hospital, in which she had been confined. It does seem reasonable that she had a need for additional care for a period of one week following each hospitalisation. In addition to the sums which I have now arrived at I should allow an extra 5 hours per day at $20 per hour in respect of each period. That is $100 per day, $700 per week times 2, so $1400 must be allowed. 1 January 2001 to 2 March 2001 22. It does seem probable that in this period the assistance provided by 6 hours of council workers' time is adequate for the heavier work relating to the plaintiff's maintenance of her household. The plaintiff at p 35 of the transcript says: "I don't have a problem feeding myself." She says that: "I will prepare most of my meals in the week myself" and that she can still put things in a washing machine. She did say, however, that her daughter Kathleen attends upon her for 3 hours per week and it seems probable that given the deterioration of the plaintiff's condition, the assistance of the daughter Kathleen for the additional 3 hours per week can be adequately explained by the increasing inability of the plaintiff to perform moderately exertional tasks such as making her bed and bringing in the washing. The plaintiff since January has found it difficult to drive and it does seem reasonable that some allowance should be made in respect of the services provided by her children and grandchildren in this respect. During this period the plaintiff in addition to the 6 hours per week provided by the council, which comes to her without cost, is entitled to 3 hours domestic care, 2 hours transport and 2 hours shopping; that is 7 hours per week at $19.50 per hour. This amounts to $136.50 per week and in respect of the period I award a rounded sum of $1,000. Future care 3 March 2001 to 31 December 2001 23. It does appear probable that the plaintiff will continue with similar requirements during this period and allowance should be made in respect of 44 weeks of $136.50 per week which in rounded terms is $6,000. If it be the case that there is a deterioration in this period then it is a permanent deterioration which has the effect only of accelerating the need for the care in respect of the next period of time which is probably a period of some six months whenever it commences. 1 January 2002 to 31 May 2002. 24. During this period it appears to me probable that the plaintiff because of the deterioration in her functioning will require 24 hour care. There is evidence before me that the cost of active care is $19.50 per hour and that of passive care $12 per hour. I propose to allow active care at $20 per hour. Evidence has been given from Ms Morgan that it is within the capacity of commercial organisations to value such services by the carer maintaining a log in which those times of active care are recorded differentially from the periods of passive care and remunerated accordingly. Doing the best I can I allow 8 hours of active care at $20 per hour and 16 hours of passive care at $12 per hour in each day. In addition it is probably in the interest of the plaintiff that she be visited by a nurse for at least 1 hour each day. This expense is noted by Ms Morgan at $32.80 on each weekday and $46.40 on each of the two days of the weekend. The cost of attendant care then is $352 per day plus nursing care at $256.80 per week. The cost each week is $2,720. The cost in respect of the five month period is accordingly $58,674. 1 June 2002 to 30 June 2002 25. I accept that the plaintiff will probably conclude her days in a hospice and I allow four weeks at $450 per day, the total $12,600. 26. The total for past and future care then is in the order of $80,000. Although I have arrived at this sum independently it is consistent with the opinion of Professor Alpers in evidence in the plaintiff's case that the cost of nursing care in his experience will be in the order of perhaps $100,000. Because the calculations are necessarily imprecise I do not propose to discount. Cost of Gardening Services 27. In September 1998 the plaintiff and her husband sold their home and moved to a house at Henley Beach. The house was within the curtilage of a block of land of perhaps three or four suburban building blocks which also contained four small home units. The premises were formerly the presbytery of a Catholic Church, the house of which had been turned into a community hall and the three units erected for the accommodation of priests. Until her husband died the plaintiff and her husband lived in the house, but following upon his death she lived in one of the units. The land is owned by one of the plaintiff's sons. 28. When the plaintiff was in good health she used to maintain the garden. It is obvious that such maintenance is now beyond her. The garden, however, comprises a large area at the back of the premises which has been earmarked by the son for a home unit development. It is the son himself who pays for the gardening. Some attempt has been made to justify the cost of gardening, which is claimed at the rate of $70 per week upon the basis that the plaintiff pays a concessional rate of rent to her son in return for what was expected to be her continuing gardening services. I do not accept the evidence of the plaintiff or of her son Martin who was called on this issue. The owner of the property, her son Stephen, until he was in his thirties was educated, housed, fed and cared for by the plaintiff and at no time paid any board or rent. The premises, now owned by that son, were bought by him with the assistance of an advance from the plaintiff, or her family trust. Future Medical Care 29. Dr Holmes for the defendant, whose report has been tendered by the plaintiff, has estimated the cost of future medical care to be in the vicinity of $50,000 to $60,000 including palliative care. Professor Alpers for the plaintiff was of the opinion that the cost would be in the order of $71,000 excluding hospice care. 30. Allowing as I have $12,600 for hospice care the opinions of those two doctors are not that far apart, Dr Holmes allowing in the order of $50,000 and Professor Alpers in the order of approximately $60,000. That opinion is in general terms consistent with the evidence of Dr Robinson given in the matter of Murfett in which the doctor opines that the cost of future care for a person dying of mesothelioma was in the order of $50,000 to $100,000. Because I do not hold Dr Robinson's report I do not know what were the component parts considered by him in coming to that assessment. 31. Professor Robinson for the defendant has given the opinion that the probable cost of future care is in the order of $22,000 excluding future care. That opinion, as is apparent from the allowance of general practitioner consultations at $25 is premised upon the dying plaintiff moving from her bed to the doctor's surgery for each consultation where she would be charged no more than the Medicare rebate. I believe that the whole of the opinion expressed by Professor Robinson is tainted by that facile assumption and I reject it. 32. Doing the best I can I allow $55,000 for future medical care. Some attack has been made upon the claims in respect of the cost of providing pharmaceuticals allowed by Professor Alpers at $20,000. It was within the capacity of the defendant by requesting particulars to identify the pharmaceuticals required by the plaintiff and to lead evidence as to whether those pharmaceuticals were available to the plaintiff free of charge on the pharmaceuticals benefit scheme. No such evidence has been led. 33. It is unfortunate that the parties were incapable of arriving upon a mutually agreed figure in respect of the probable cost of future care. Such disputes may be better resolved in the future if some attempt is made at obtaining historical evidence as to what in fact has been on average expended in the actual course of treatment for a person dying of this terrible disease. Economic loss 34. The plaintiff in her affidavit asserted in par 58 as follows: I believe I could have obtained paid employment either doing administrative, clerical or office management type work or work as a carer of children with people with disabilities or the elderly. I looked at the employment section of Saturday, 10 February 2001 Adelaide Advertiser, I have highlighted the jobs I believe I am qualified for. 35. This statement in the affidavit is to be contrasted with the evidence of the plaintiff at p 40 where in relation to the possibility of paid employment she said that she "[didn't] dismiss it as an option." The plaintiff's counsel submitted that were it not for her injuries the plaintiff "would have supported herself"( transcript p 101). The claim is made then in respect of past and future economic loss in the sum of $42,153. The plaintiff said in evidence that she used to work for 5 hours per week in her husband's business and that had he not died her intention was to continue in that sort of work. When her husband fell ill she believed she would continue to do such work with her sons. It should be noted that before her illness the plaintiff was doing 12 hours a week in charity work. In evidence obviously designed to justify this submission Mr Sharpe led the following from the plaintiff: Question Did you have any cash resources, did you have any money in the bank. Answer - Very little, my funeral. Question No, to support yourself on a week by week basis. Answer - No. Question Your children help you. Is that right. Answer - Yes. Question Is it from them that you live on a week to week basis or not. Answer - Since August last year I have been on the invalid pension. Question Is it that that you have been using to support yourself. Answer - I live on that. Question Do your children provide you with financial support, buy you food, things like that. Answer They do, they pay me for my petrol for the running of the car and they've bought a car for me which my grand-daughter now has a licence to drive and so alleviates the girls. They've got five babies each to do that for me, especially since January, I mean all this has happened in a few months. Question When you were in business, when you ran the business with your husband this was all met out of the business income. Is that right. Answer Yes, my children lived at home and never paid board and my husband was very generous with them and educated them and met all their needs and mine. Question You do not have any assets like blocks of flats and things like that to bring an income to you personally. Answer - No, I don't. Question Do the children have things like that or not. Answer I'm not sure how much they've got but I know there are things under way. Question If they have not got them yet they are working on them. Answer - Yes, they will have to do it if they want to. Question How does it make you feel, this being supported in this way. Answer - Not sure, does feel like I'm dead already. 36. This evidence is to be contrasted with other evidence before me. The plaintiff said that before the death of her husband he and she had been paying $62,000 each year after tax to support a grandson studying in America. The plaintiff agreed that the moneys were paid out of the profits of the business when the husband was working. She said that it was a profitable business. When asked what are the assets that she was left with the plaintiff said "I don't know, you'd have to ask my son, he's taking care of that". 37. Her son, Martin Brennan, a chartered accountant, was called. Mr Sharpe at p 62 put this question: Question You have nothing to do with her financial set up or the way she manages her affairs on a day-to-day basis. Answer - No. 38. Mr Martin Brennan said that his father had been primarily a property developer who in the last five years of his life had a total value of projects of over 2 million dollars excluding jobs under $50,000 performed by his company in respect of alterations to home and factories. The business was substantial and was responsible for the erection of a multi-storey building in Angas Street, Adelaide in the heart of the city. The largest project upon which the plaintiff's husband was engaged in the last years of his life was a development in the order of $800,000. The plaintiff and her husband sold her house in September 1998 and then decided to live with the son in his house. There is no evidence of what was done with the proceeds of the sale of the plaintiff's house. Clearly this was a very profitable business and conducted over many years. Unsurprisingly Mr Martin Brennan said that a family trust had been established in which the plaintiff is a discretionary beneficiary. 39. Notwithstanding my invitation to counsel to shed further light upon the resources available to the plaintiff so that I may better assess the need which was asserted for her to "support herself" no other evidence was called. In that circumstance I am unable to infer that the plaintiff would have sought paid employment out of economic necessity. It is true that without her husband's business the plaintiff may have sought stimulation and diversion in paid employment were she not to have fallen ill, but similarly she may have sought this stimulation and diversion in voluntary charitable work. 40. If the plaintiff had sought to exercise any residual earning capacity then it would be a capacity which must be measured objectively rather than judged by the plaintiff's willingness to find work. In that regard I have a report before me from Natasha Lawson, a vocational rehabilitation consultant. Ms Lawson, noting the plaintiff's levels of skill and lack of qualifications was of the opinion that Mrs Brennan would be unable to compete successfully in the open labour market given her past work history, lack of current work references, lack of training, formal certifications, qualifications and lack of computer skills. I need only add perhaps also given the limitations of work available for persons of the plaintiff's age. Nevertheless some allowance ought be made against the possibility that Mrs Brennan may have found some diversion in some lowly paid work part-time. Doing the best I can I allow $15,000 in respect of this economic loss. Gerson Therapy 41. A claim is made in respect of the cost of a therapeutic dietary regime known as Gerson Therapy. This regime was adopted by the plaintiff's husband in the latter months of his life and the plaintiff believed it was effective in slowing his decline and relieving his symptoms. Upon the evidence before me I find that the treatment has no medical basis and the defendant ought not reasonably be called upon to pay the related expenses. I do accept that the treatment in some persons may have a beneficial effect upon the patient's mood and disposition founded upon a subjective conviction that: In order to instigate a healing response, and to effect a cure, nutritional deficiencies must be resolved and accumulated toxicity removed from the body. These were the words of one Katherine Alexander, whose expert evidence is before me but whose qualifications are unknown other than that she described herself as holding the qualificaiton of D.Th.D. I find her evidence uncompelling. 42. The plaintiff said of the therapy in which she administered juices from vegetables and fruit to her husband that "those living enzymes changed his liver and his blood and kept him pain free." It is a difficult issue, I have no doubt that in persons suitably disposed a visit to Lourdes would have a beneficial effect. The question is whether the defendant ought reasonably be called upon to pay. In any event it is the plaintiff's evidence that she was unable to accompany her husband to Mexico when he attended for Gerson diagnosis and treatment and that the Gerson Therapy is only effective if an individual regime is prescribed after such assessment in Mexico. The plaintiff is unable to say that she would be well enough to fly now. In that circumstance, even if the treatment were to have a medical basis I could not on the probabilities find that the plaintiff would take advantage of it. That claim is disallowed. 43. The plaintiff is then entitled to judgment made up as follows: General damages $190,000 Interest $4000 Loss of expectation of life $20000 Health Insurance Commission $10,137.50 Future Medicals $55,000 Hospice Care $12,600 Medical aids $5055 Undergarments $300 Hairdressing $1000 Past Griffiths v Kerkemeyer $2400 Future Griffiths v Kerkemeyer $64,674 Economic Loss $15000 Total $380,166.50 44. I enter verdict and judgment for the plaintiff in the sum of $380,166.50. Mr J L Sharpe instructed by Turner Freeman appeared for the plaintiff Mr J Bartos instructed by Phillips Fox 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.