Dust Diseases Tribunal of New South Wales CITATION : Noel Doughan v Amaca Pty Limited [2010] NSWDDT 13 PARTIES : Noel Doughan Amaca Pty Limited MATTER NUMBER(S) : 8155 of 2008 JUDGMENT OF: Curtis J at 1 CATCHWORDS: DUST DISEASES TRIBUNAL :- asbestosis - damages DATES OF HEARING: 23 and 24 August 2010 DATE OF JUDGMENT: 3 September 2010 Mr D J Russell SC with Mr S Tzouganatos instructed by Turner Freeman Brisbane appeared for the plaintiff LEGAL REPRESENTATIVES: Mr D Hooke SC instructed by Ellison Tillyard Callanan appeared for the defendant JUDGMENT: DUST DISEASES TRIBUNAL OF NEW SOUTH WALES Matter Number DDT 8155 of 2008 NOEL JOHN DOUGHAN v AMACA PTY LIMITED 3 September 2010 CURTIS J JUDGMENT Introduction 1. The plaintiff, Mr Noel John Doughan, is a retired builder who turned 80 on 12 April 2010. He has contracted asbestosis as a result of intensive exposure to asbestos cement products manufactured by James Hardie & Coy Pty Limited. Mr Doughan first experienced symptoms of breathlessness in about May 2007. 2. The only issue between the parties is the quantum of damages. Mr Doughan's Evidence 3. Mr Doughan said that he was in good health before a car accident in 2004. He was a licensed builder whose work was mostly supervisory but he did from time to time perform carpentry and cleaning work. Three times a week he walked for up to 60 minutes around the beaches and headlands of the Gold Coast where he lived. 4. The car accident occurred when another vehicle, travelling at high speed, failed to give way at a stop sign and struck Mr Doughan's car. He gave this evidence: Q. What injuries did you suffer in that accident. A ---Hurt my right foot and broke - broke my thumb, the wheel spun around and broke my thumb. My chest, just black and blue all over the chest from the seat belt and everything. Q. Did you suffer any injury to your back at that time. A---I had a crook back for a fair while after. Q. You have made a claim in relation to the injuries suffered in that accident. Is that right. A---Mm-hmm. Q. That claim went through a procedure which resulted in a settlement. Is that right. A---That's right. Q. What was the size of your settlement. A---Size? Q. Yes. A---Well, to be quite honest I can't remember. Q. There's some documents - A---I don't know, it was seventy or eighty or ninety thou - I can't remember. It was a fair bit of money. … Q. Can I ask you about the progress of the injuries that you suffered in the accident. Firstly your broken left thumb, how has that progressed. A---Which? Q. The broken left thumb, how is it nowadays. A---I only get arthritis in it now. Q. How often. A---As soon as the weather changes. Q. Does it stop you doing anything. A---Not really. Q. What about your back. Does that cause you problems nowadays. A---A little bit every now and then. Not a lot. Q. Do you take any medication for the back. A---No. Q. Any painkillers. A---I have sometimes, yes. Q. What have you taken. A---I do, like Panadol. Q. Stuff you can buy from the chemist without a prescription. A---Yes. Q. What about the crush injury to your right foot. How are you nowadays. A---It never gives me any trouble whatsoever. Q. Before you had your problems with breathlessness, you went back to walking. A---Yes. Q. You were walking those same distances each day. Is - A---Yes. Q. - that right. Even walking now, you don't have any limp or any problems. A---None whatsoever. 5. In cross examination Mr Doughan admitted that he also suffered injuries to his neck and shoulders in the motor vehicle accident which continue to affect him, and that after that accident he had an exercise tolerance of only 10 to 15 minutes before suffering pain in his back and shoulder. He conceded that he never got back to the point of doing extended walks and that his walking was confined to short walks on flat level ground. 6. In his proceedings against the insurer of the other motor vehicle, Mr Doughan claimed that he suffered ongoing aching and stiffness in his spine, reduced movements of his left shoulder, an inability to lift heavy items or sit or stand for prolonged periods of time, and disturbed sleep due to shoulder pain. 7. Mr Doughan settled those proceedings in July 2007 for the sum of $150,750.24 clear to himself. Mr Doughan appears to have been a very successful businessman. It is difficult to believe that his recollection of $70,000-$90,000 was genuine. 8. Because of these inconsistencies, the balance of Mr Doughan's evidence must be scrutinised carefully for reliability. 9. Because his complaints of disability are couched in moderate terms and are consistent with medical opinion as to the likely effect of the objective lung damage, I accept this evidence. 10. Mr Doughan says that he is able to ascend two flights of stairs leading to the lobby of his apartment building, but by the time he gets to the top he is panting. Occasionally he walks into the garage where there are no stairs, and gets in the lift from there. He can walk three blocks down to the post office without getting puffed. 11. Mr Doughan cares for his wife who suffers from terminal stomach cancer. He does the shopping and cooking and domestic tasks, although cleaners come in once each week. He has no problems when cooking, but sometimes stops in the middle of domestic tasks to have a breather. Some 12 to 18 months ago he sold his boat because of the effort getting it back into its trailer. In the last 12 months he had a little trouble putting out the annex to his caravan but was able to complete the task. He continues to wash his car using a broom to avoid bending down, and he wipes the car with a chamois. 12. When asked how he felt when learning that his disease would reduce his life expectancy Mr Doughan said: "disappointed". This understatement is consistent with my impression that Mr Doughan did not exaggerate the symptoms of his asbestosis. 13. Mr Hooke SC for Amaca did not suggest in cross examination that Mr Doughan was exaggerating his symptoms, nor did he call any medical evidence relating to Mr Doughan's lung function. Medical Evidence Dr David McEvoy 14. Dr McEvoy, a highly experienced respiratory physician, examined Mr Doughan on 16 October 2009. He received a history that Mr Doughan developed shortness of breath on exertion when walking in 2008, which had become progressively more severe. He was currently breathless with showering, vacuuming, and climbing two flights of stairs. 15. In his report of 19 October 2009, Dr McEvoy expressed the opinion that Mr Doughan was then mildly impaired. He thought that Mr Doughan's life expectancy, of 10 years on the tables, may be reduced between two and five years due to the progression of asbestosis and the adverse effect of this on cardiac function and ischaemic heart disease. 16. Dr McEvoy reported that because serial lung function tests showed a decline in both diffusing capacity and total lung capacity, Mr Doughan would, within one or two years, become increasingly limited in his activities, although still able to cope with independent living. That condition would probably continue until the last 2 to 3 years of his expected life when he would require home supportive care, and probable admission to a nursing home. 17. In a supplementary report of 15 June 2010, commenting upon a report by an occupational therapist, Vanessa Aitken, Dr McEvoy adopted a probable life expectancy of 6.5 years. He wrote that: "in another four years time, Mr Doughan will be 83 years of age and he will be considerably incapacitated". He quantified the future domestic and personal care needs of Mr Doughan as: low dependency continuing for one year, moderate dependency for 3.5 years and high dependency for two years. Dr McEvoy estimated the period of complete dependance at the end of Mr Doughan's life as between two and six months, when he would be confined to bed in a nursing home. 18. Somewhat inconsistently, he wrote that he regarded that the stage of moderate dependance as outlined in the report of Miss Aitken "would extend for approximately 2.5 years". 19. When giving evidence Dr McEvoy said that there was a 50 per cent chance that Mr Doughan will be less affected than assumed by Ms Aitken for the purpose of her calculations and a 50 per cent chance that her assumptions will eventuate. Further, he said that in the worst case scenario, Mr Doughan would not live for another 6.5 years. 20. Dr McEvoy said that he did not expect Mr Doughan to end up on home oxygen and that …This man's currently got mild impairment and I expect during the remainder of his lifetime that will get worse, to a degree of moderate impairment. He may even - allowing for all circumstances - become severely impaired and be on home oxygen but that would probably not be the median view. The median view is he will be disabled at home with assistance or in a nursing home but he won't die from his lung disease; he will die from something else. 21. In cross examination Dr McEvoy said that the worst-case scenario, where Mr Doughan ended up in a totally dependent state, was improbable, and that it was likely that Mr Doughan would ultimately require no more than the care appropriate to moderate dependency in the care plan drawn up by Ms Aitken. Dr Maurice Heiner 22. Dr Heiner, a consultant thoracic physician, examined Mr Doughan on 25 July 2008 and again on 29 June 2010. On this latter occasion Dr Heiner received a history of marked deterioration in Mr Doughan's exercise tolerance. Mr Doughan told Dr Heiner that he was no longer able to carry shopping bags of any weight, and had difficulty carrying out tasks such as showering himself. It was impossible for him to bend down without becoming extremely breathless. Dr Heiner reported that this deterioration was consistent with the diminution in lung volume revealed by serial lung function tests. 23. In his first report of 25 July 2008 Dr Heiner expressed the opinion that the asbestos-related disease and concomitant complications would result in a reduction of life expectancy from 8.27 to 5 years. 24. In a later report of 24 May 2010, Dr Heiner said that he agreed with Dr McEvoy's assessment of low dependency continuing for one year and moderate dependency for 3.5 years. He disagreed with McEvoy's estimate of high dependency for the last six months of Mr Doughan's life, believing that high dependence will be present for the last three years of life. 25. In evidence Dr Heiner somewhat qualified this opinion in the following exchange: Q. So what do you see the future deterioration being? Is it just impossible to know? A I think that this man is going to continue to deteriorate but I cannot tell this Court with accuracy that he is going to deteriorate quickly, slowly or stay stationary. I cannot say that. Years and years ago it was said that people who has asbestosis and a positive rheumatoid factor were the ones that were going to deteriorate most rapidly but that has since proved incorrect. So there's no test that we can tell. 26. I take this evidence to be a concession that while he believes that Mr Doughan will probably deteriorate to a significant degree of incapacity, that eventuality was not certain. 27. Dr Heiner thinks it probable that Mr Doughan will die in hospital from respiratory failure precipitated by an infection. Conclusions 28. Mr Doughan is presently unable to perform more than the slightest physical tasks without the onset of disabling breathlessness. He is presently able to drive his car, shop for provisions and cook for himself and his wife. He is unable to perform heavier household tasks and requires the services of a cleaner for two hours each week. He will deteriorate although the rate and extent of this deterioration is uncertain. 29. In the light of the evidence of Dr McEvoy that it was unlikely that Mr Doughan will become highly dependent before his death, and Dr Heiner's concession that he does not know if this will be the case I cannot find that it is probable that Mr Doughan will require a high degree of care before the terminal event which causes his death. 30. He will probably live for another six years, and become moderately dependent in one year's time, although still able to cope with independent living. This moderate dependency will probably continue until his death. General Damages 31. I do not accept the defendant's submission that Mr Doughan was substantially disabled by serious back, neck and shoulder injuries suffered in his car accident. 32. In this regard the defendant relies upon the histories and complaints recorded by doctors Noel Langley and Peter Jackson who examined Mr Doughan for the third-party insurers in his previous proceedings, and Mr Doughan's apparent concessions cross-examination. 33. It seems obvious to me that Mr Doughan exaggerated his complaints to those doctors, and I think that concessions made by Mr Doughan in cross-examination as to his restrictions before he developed breathlessness were made by him in order to avoid the obvious conclusion by the Tribunal that he exaggerated his disabilities in the third-party proceedings for the purpose of obtaining money, and may do it again. 34. On 17 March 2009 Mr Doughan was examined by Dr Ian Brown at the request of the defendant's solicitors. He reported that: You have asked me to comment on any other comorbidities that may impact on the plaintiff's ability to provide care for himself. The other comorbidities are mild back pain which is not causing any disability at present. His underlying cardiac disease is not limiting and does not appear to be the cause of future disability at this stage. I do not believe that the cardiac disease either coronary artery disease or hypertension contribute significantly to his symptoms at all to the anomalies demonstrated on x-rays, CT scans and detailed lung function. 35. Mr Doughan's treating physician, Dr Andrew Scott, first saw him on 22 November 2007. He received a history of chronic exertional dyspnoea since early 2007, noticeable when he was sitting quietly, including when lying in bed. His functional ability was reasonable, and his walking distance at medium pace at least 2 km. This was not an examination for medico-legal purposes and I believe the history was probably truthful. 36. On 29 July 2009 he was examined by Dr E W Ringrose for his own solicitors. Dr Ringrose reported: The right foot, cervical spine and the thoracic spine are all normal and there is no residual disability. With regard to the left wrist and the first metacarpal bone there is some residual discomfort but no functional impairment. The left shoulder only pains at night when sleeping on it and there is no functional impairment. He does have some lumbar pain which is presumably secondary to osteoarthritis. In summary, in my opinion there is no residual whole person impairment as a result of a motor vehicle accident. 37. Mr Hooke did not put to Mr Doughan that he was dishonestly exaggerating his symptoms for the purpose of gain, and Dr Heiner said that his opinion as to the disability would be unaltered even if he were to discount Mr Doughan's subjective complaints entirely. 38. Breathlessness is a terrible affliction, compounded in the case of Mr Doughan, by the sure knowledge that it will worsen and almost certainly cause his premature death. 39. I bear in mind that, unlike many other sufferers of lung disease, Mr Doughan does not and will not suffer physical pain, as well as the fact that he is of advanced years and was, before the onset of breathlessness, limited somewhat by the effects of age and the motor vehicle injury. To my mind the most relevant consideration in the assessment of damages is the fact that the defendant's tort will almost certainly cost Mr Doughan his life, and he knows it. 40. I allow general damages in the sum of $150,000 Interest on General Damages 41. Most of Mr Doughan's loss of amenity will occur in the future. I allow interest at 2 per cent on $50,000 for three years. This is $3,000. Loss of expectation of life 42. I allow a conventional sum of $3,500 Past Services 43. Because Mr Doughan has been incapable of heavier domestic tasks for the last two years it is reasonable to allow the cost of housecleaning at $40 per week. This totals $4,160 Future Care and Services Occupational Therapists 44. Mr Doughan's solicitors qualified Ms Vanessa Aitken and Amaca's solicitors qualified Ms Angela Brown, both of whom are extremely well-qualified. Unfortunately their reports are of limited assistance. 45. In her report of 6 April 2010 Ms Aitken assesses the commercial cost of providing care during moderate dependence at $718 per week. Ms Aitken describes moderate dependence as requiring "assistance with most domestic tasks and some community tasks as well as some self-care assistance". She then allows only one half hour each week for cleaning, one half hour for shopping, and nothing for laundry or meal preparation. Such a paltry allowance cannot provide for assistance with "most" domestic tasks. 46. Ms Aitken allows one hour each week for car cleaning at a cost of $45, notwithstanding that, apparently upon the assumption that Mr Doughan will not be able to drive his motorcar, she has also allowed the cost of three hours each week for transport to and from medical appointments. Ms Aitken allows one hour each week in relation to "medical liaison/financial management" when there is no suggestion that Mr Doughan, a successful businessman, will become unable to manage his own affairs. 47. Ms Aitken includes an allowance of 3.5 hours each week for "self-care". The evidence does not admit of any finding as to what if any care will be required. A further allowance of seven hours each week is allowed for "supervision/monitoring". If by this Ms Aitken intends that a person should visit each day to check on whether Mr Doughan is well, there is no reason why that task could not be performed concurrently by a cleaner or domestic assistant. 48. An allowance of one half hour each week is allowed in respect of "repairs/maintenance" although Mr Doughan lives in an apartment block. The report is silent as to exactly what repairs or maintenance may be required inside his home. 49. Although Dr McEvoy said that he agreed with Ms Aitken's assignment of costs during the state of moderate dependence, and Dr Heiner said that he thought Ms Aitken's report "excellent", the anomalies within the report lead me to believe that in assenting both doctors had in mind the summary, "assistance with most domestic tasks and some community tasks as well as some self-care assistance", rather than the detailed allowances and costings. 50. Ms Brown in her report of 31 May 2010 assesses the commercial cost of care during this period at $403.80 per week. Ms Brown describes the care required during the period of moderate dependence as "assistance with most domestic tasks, regular personal care assistance, community access". She allowed two hours a week in relation to "cleaning, meal preparation and shopping". Ms Brown was told by Mr Doughan that he already receives two hours a week assistance in which a cleaner vacuums and mops the floors and cleans the kitchen. Two hours each week will not permit much assistance with the additional tasks of "meal preparation and shopping". 51. Ms Brown also allows two hours each week for transport to and from medical appointments. There is no evidence to suggest that Mr Doughan will require 100 medical appointments in the course of one year. In any event a taxi would be a reasonable alternative. Ms Brown allows one hour per week for property maintenance although Mr Doughan lives in an apartment block. An allowance of one hour for "Community Access" I take to mean the cost of transport. Again a taxi would be a reasonable alternative. 52. Doing the best I can, in respect of a five-year period of moderate dependence I think it reasonable to allow two hours each day at a rate of $28 per hour for assistance that includes cleaning, laundry, changing light bulbs etc, shopping, and preparing meals. This comes to $392 per week 53. Ms Aitken allows 3.5 hours per week for personal care at a cost $146.50 and Ms Brown four hours at a cost of $161.30. I allow the mean figure of $153.90 per week 54. I allow a further allowance of $50 per week for cab fares. The total is $595.90 per week and the total $30,986.80 per year. 55. Applying the deferral tables at a 3 per cent discount rate the allowance is: Year Discount Factor Discounted Amount ($) 1 0.971 30,088.18 2 0.943 29,220.55 3 0.915 28,352.92 4 0.888 27,516.28 5 0.863 26,741.61 TOTAL 141,919.54 56. It is difficult upon the evidence to form an opinion as to the likelihood of the necessity for this level of care. I think that when Dr McEvoy said the likelihood of Ms Aitken's estimates of the care required was 50 per cent, he was referring to the full extent of the care required, rather than to there being any chance that no care would be required. The appropriate adjustment against the possibility that more limited care may be required is a reduction of 20 per cent. The allowance is then $113,535.64 57. A further allowance must be made against the contingency that Mr Doughan will become highly dependent for the last months of his life. Dr McEvoy estimates this period at two to six months and Dr Heiner at three years. I prefer the opinion of Dr McEvoy because it is unlikely that when Mr Doughan reaches this stage he has long to live. 58. The occupational therapists also offer very different opinions as to the identification and cost of the necessary assistance. 59. Ms Aitken allows $2,488.50 per week. She identifies the care as "assistance with all domestic tasks, all community tasks, as well as all self-care with passive overnight supervision". Absurdly she makes no allowance for laundry and allows one hour each week for car cleaning. It is highly improbable that Mr Doughan during this period of high dependence will be able to perform his own laundry and drive his own car. 60. Ms Brown allows $1,065.20. Ms Brown describes the care required as "assistance with all domestic tasks and personal care, community access and transport", and yet she allows only six hours each week for domestic assistance which would include the preparation of all meals, all cleaning and all laundry. Ms Brown makes no allowance for overnight passive supervision. 61. I propose to allow, in addition to the above-mentioned cost of two hours per day general assistance, the further cost of personal care of 16 hours week at a cost of $645.20 in accordance with Ms Brown's report, and overnight supervision of 35 hours per week which Miss Aitken costs at $1,465 per week. The total is $2,110.20 per week, or $54,865.20 for a period six months. 62. If the need for this expenditure arises it will be after the elapse of five years. The multiplier is 0.863 and the discounted sum is $47,348.67. 63. The probability of the need for this care is unknowable, but, on Dr McEvoy's evidence, less than 50 per cent. I project a 40 per cent chance and I allow $18,939.47. 64. The total allowance for future care is then $132,475.10. Invalid Equipment and Adaptions 65. Ms Brown allows $8,033.75 and Miss Aitken $7,362.85. The mean of these two amounts deferred for three years (0.915) is $7,044. Cost of Past Medical Expenses 66. This is agreed in the sum of $1,400. Cost of Future Medical Expenses 67. Again, there must be some speculation as to future events, and I do not think it useful to consider separately the probability of each item of expenditure becoming necessary. Dr Heiner, on what he says are conservative assumptions, estimates a global figure of $50,000. Dr McEvoy estimates the costs at between $50,000 and $100,000 depending on the extent and duration of hospitalisation. 68. I allow $75,000, reduced by 10 per cent for deferral to $67,500. Summary of Damages $ General Damages 150,000 Interest on General Damages 3,000 Loss of Expectation of Life 3,500 Past Services 4,160 Future Care and Assistance 132,475 Invalid Equipment and Adaptions 7,044 Cost of Past Medical Expenses 1,400 Cost of Future Medical Expenses 67,500 TOTAL 369,079 69. Judgment for the plaintiff in the sum of $369,079. The defendant is to pay the plaintiff's costs. Mr D J Russell SC with Mr S Tzouganatos instructed by Turner Freeman Brisbane appeared for the plaintiff Mr D Hooke SC instructed by Ellison Tillyard Callanan 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.