Gustav Franz Bartowsky v BI (Contracting) Pty Ltd [2004] NSWDDT 44

Dust Diseases Tribunal of New South Wales

CITATION : Gustav Franz Bartowsky v BI (Contracting) Pty Ltd [2004] NSWDDT 44 PARTIES : Gustav Franz Bartowsky BI (Contracting) Pty Ltd MATTER NUMBER(S) : 227 of 2004 JUDGMENT OF: Curtis J at 1 CATCHWORDS: Damages :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 27th October 2004 DATE OF JUDGMENT: 11/05/2004

FOR PLAINTIFF: Mr M J Joseph SC instructed by Alex Stuart and Associates LEGAL REPRESENTATIVES: FOR DEFENDANT: Mr A Ventura instructed by Makinson and d'Apice

JUDGMENT:

Dust Diseases Tribunal of New South Wales Matter Number DDT 227 of 2004 Gustav Franz Bartowsky v BI (Contracting) Pty Ltd 5 November 2004 JUDGMENT CURTIS J 1. Gustav Franz Bartowsky has contracted mesothelioma as a result of his inhalation of asbestos fibre in the course of his trade as a builder. 2. His greatest exposure to asbestos fibre occurred in the construction of the Charles Burke and John Martin department stores in Adelaide in 1960 and 1963 respectively. The defendant BI (Contracting) Pty Ltd (Bradfords), formerly known as Bradford Insulation Contracting Pty Ltd, there sprayed asbestos fire retardant onto steel beams. This work was carried out by Bradfords in breach of its duty to Mr Bartowsky to take reasonable care to protect him from the dangers of asbestos. He is entitled to a verdict. General Damages 3. Mr Bartowsky was born on 8 June 1935 in Gmunden, Austria and is now 69 years of age. He was in good health before he contracted his illness and was physically active playing table tennis regularly. He has never been a smoker. 4. At Christmas in 2003 Mr Bartowsky noticed that his stomach was swelling and, although he went on a diet and lost some weight, his stomach remained swollen. On 17 March 2004 he underwent a colonoscopy at the Burnside Hospital. The results of this biopsy were essentially normal. However, he continued to have a swollen stomach and also felt tired. He continued to lose weight. 5. On 7 April 2004 Mr Bartowsky was admitted to Burnside Hospital and 13 litres of fluid were drained from his stomach and a biopsy taken. After analysis on 21 April 2004 Mr Bartowsky was advised by his oncologist, Dr Dorothy Keefe, that he had cancer. On 30 April he consulted with Mr Tim Roberts, a counsellor at the Calvary Cancer Centre. It may be easily imagined that Mr Bartowsky was distraught at this time. 6. On 12 May 2004 a further 7 litres of fluid were drained from his stomach at the Burnside Hospital and on 21 May 2004 his diagnosis of malignant mesothelioma was confirmed by Dr H Hetzel. 7. On 9 June 2004 he commenced chemotherapy, undergoing chemotherapy every three weeks with a total of six sessions. He has found chemotherapy uncomfortable and distressing. His appetite decreased. The chemotherapy has left him drained and exhausted, unsteady on his feet and feeling nauseous much of the time. He has lost 15 kilograms in weight. Not only did the chemotherapy result in the loss of his appetite he has also lost his sense of taste. On 21 July 2004 Dr Hetzel drained a further 8.5 litres of fluid from his abdomen. The chemotherapy has made him extremely constipated and he suffers from pain, at times extreme, in his stomach. On 1 September 2004 a further seven and a half litres were drained from his abdomen, and on 13 October 2004 again 7 litres of fluid were drained. 8. It is probable that Mr Bartowsky will die from his disease in or about November 2005 at the age of 70. 9. I allow general damages in the sum of $170,000. I allow interest on this sum in total of $2,250. I allow $15,000 in respect of loss of expectation of life. Past medical expenses have been agreed in the sum of $17,502.20. Future Medical Expenses 10. Dr Keefe, a medical oncologist who has treated Mr Bartowsky estimates future care "in the range of" $60,000. Dr Antic, who prepared a report for the defendant, included a fairly detailed list of the particular medical services which will probably be required. I am told by counsel for the defendant that the total of the procedures costed by Dr Antic amounts to $38,678 for a life expectancy of eight months. This list includes no amount for chemotherapy. Doing the best I can in the face of unknown contingencies I allow $50,000 in respect of future hospital and medical expenses. Past and Future Care and Services 11. The final weeks of Mr Bartowsky's life will probably be spent in a hospice and allowance for the cost of this care has been included in future medical expenses. I have in evidence reports of two occupational therapists, which address the needs of the plaintiff and the cost of replacement services. Ms Morgan, whose report is tendered by the plaintiff, assesses the cost of past and future care until August 2005 at some $166,000. Ms Aitken, whose report is tendered by the defendant, estimates the cost to 14 October 2005 in round figures at $43,000. I prefer the opinion of Ms Aitken, whose assessment of the present and future needs of the plaintiff most accords with the evidence of Mr Bartowsky and my own view. Further, I do not believe that Ms Morgan is justified in her assumption that by late 2004 Mr Bartowsky will require high level care at a cost of over $2,000 per week. 12. I allow past care in the sum of $6,000 upon which I allow interest in the arbitrary sum of $100. I allow future care in the sum of $37,000. I also allow $3,220 in respect of the labour of painting the plaintiff's house. Sullivan v Gordon 13. Mrs Bartowsky, the plaintiff's wife, suffers from a number of medical conditions including osteoarthritis in her hands, knees and ankles. She is a diabetic. These conditions resulted in Mr Bartowsky assisting his wife to some degree prior to his diagnosis. In particular Mrs Bartowsky was not able to mow the lawns, open jars, use secateurs for gardening or weed kneeling down. She also had difficulty performing heavier internal cleaning work such as vacuuming, mopping and sweeping and hanging and retrieving clothes from the clothes line, although she apparently performs these tasks. 14. Mr Joseph submits that an award in respect of four hours per week for the period of 18 years being the plaintiff's life expectancy on the tables would be appropriate. I am not persuaded, no medical evidence being before me in relation to Mrs Bartowsky's condition, and she not being called, that four hours is appropriate. I allow two hours per week including gardening. The cost of the services is given as $22.60 for assistance during the week and $26.75 for weekend assistance such as provided in gardening, that is the total cost of replacement services is $49.35 per week. 15. I allow for future services $27,799 postponed for one year which allows a sum of $26,993, which sum itself must be discounted against the contingencies of death or supervening disablement of either Mr Bartowsky or his wife. Discounting 20 per cent I allow $21,594. 16. The plaintiff then is entitled to an award of damages as follows: General damages $170,000 Interest on general damages $2,250 Loss of expectation of life $15,000 Past out of pocket expenses $17,502.20 Future out of pocket expenses $50,000 Past care $6,000 Interest on past care $100 Future care $37,000 Sullivan v Gordon $21,594 House painting $3,220 17. There will be verdict and judgment for the plaintiff in the sum of $322,666.20. The defendant is to pay the plaintiff's costs. Mr M J Joseph SC instructed by Alex Stuart and Associates appeared for the plaintiff Mr A Ventura instructed by Makinson and d'Apice appeared for the defendant