Dust Diseases Tribunal of New South Wales CITATION : Hurst v Amaca Pty Limited [2004] NSWDDT 11 PARTIES : Kerry Allen Hurst Amaca Pty Limited MATTER NUMBER(S) : 21 of 2004 JUDGMENT OF: Duck J at 1 CATCHWORDS: :- LEGISLATION CITED: S 25(3) of the Dust Diseases Tribunal Act CASES CITED: DATES OF HEARING: 22/04/2004 EX TEMPORE JUDGMENT DATE : 04/22/2004 FOR PLAINTIFF: Mr P Blacket, SC instructed by Turner Freeman. LEGAL REPRESENTATIVES: FOR DEFENDANT: Ms W Strathdee instructed by Phillips Fox. JUDGMENT: 1. The plaintiff brings proceedings against Amaca Pty Limited, a company formerly known as James Hardie and Coy Pty Limited. The plaintiff was an electrician. He was born on 29 May 1943. He commenced his apprenticeship in South Australia in 1958. He qualified as an electrician and worked in various employments and as a self-employed electrician during the course of his working life. In doing his work he was exposed to the inhalation of asbestos dust and fibre. For a long time during the running of the case there was concern about whether the evidence properly permitted the conclusion to be drawn that it was the defendant's product to which he was exposed. 2. Ultimately pursuant to section 25(3) of the Dust Diseases Tribunal Act an affidavit which had been used in some other proceedings was tendered. The affidavit was that of Graham Allen sworn on 27 November 2000, previously used in proceedings in which the plaintiff was Leonard Harriet and the defendants were James Hardie and Coy Pty Limited and other defendants. The content of the affidavit was of such a nature that after it had been considered and some submissions made about it learned counsel for the defendant announced that so far as her client was concerned the plaintiff in these proceedings was entitled to a verdict. In that circumstance I propose to confine the judgment which I now give to the assessment of damages. 3. Mr Hurst has been diagnosed with an adenocarcinoma of the left lung. In addition he has metastatic disease in several locations in his body, including his thighs. He said in his affidavit at par 21 that he had had a form of heart attack in 1999 from which he recovered. Evidence was given about it. He needed no surgery or anything of that type as a consequence of the heart attack. At paragraph 22 of his affidavit he deposed to the fact that before he had it he had developed a cough that became progressively worse. He got pain in his back which spread to the area under his shoulder blades to his bottom ribs and into the top of his ribs. He said that he seemed to cough almost all the time for no apparent reason and over the last three or four years he became increasingly short of breath. 4. In November 2003 Dr Scroop undertook a biopsy at St Andrews Hospital during which fluid was drained from the plaintiff's lung. It was following that procedure that he was advised that he had an inoperable lung cancer. He said that his shortness of breath is getting worse. His evidence today was that when he was advised that he had inoperable lung cancer he was ready to kill himself. At the time he was notified of the diagnosis he was told he had 12 months to live. As regards his breathing difficulties the plaintiff said that he is breathing 50 per cent at the moment. He said he lives his life in bed. He cannot do anything now and it is killing him. 5. He kept his electrician's licence on foot in the hope that he might get better. He still hopes that that might happen although all the indicators are that the hope is in vain. He said of himself that he is as white as a ghost from chemotherapy. That treatment started in January this year. He has had three weeks on chemotherapy each month and a week off. During the week off he has attempted to take some medication to deal with emotional upset but that also makes him sick. His weight dropped from 107 kilograms to 80 kilograms. It rose again and has dropped again so that he is now at about 82 kilograms. He said that he went fishing last weekend and did not have the strength to put the bait on his hooks. 6. The plaintiff said that in recent times he is always crying. During the course of giving his evidence today he was in tears. It is not something that he is able to control very well. He said at home he and his wife used to do things together but now she does the domestic things. Just before he became aware of the diagnosis which was offered to him he had bought the second of two buses. He likes to modify them so that they are a mobile home which he can use to go away for fishing holidays and the like. Just before the diagnosis was made he had commenced beekeeping with his brother at Kapunda as a hobby. His comment about that was simply "that's gone now". 7. He is able to shower himself. Sexual intercourse with his wife has now finished. He said, however, he can drive his car. He takes drugs every night and every morning to stop back pain. In addition to back pain he has some discomfort around his stomach which he attributes to the fluid in his lungs. When trying to sleep he said he wakes every half hour. Counselling has been suggested to him but he said he does not want to go yet because he gets too upset. The plaintiff said that his wife had had a stroke three years ago and that it was hard for her to cope. At present she is doing all the caring for him. The plaintiff said that when his wife takes a break and goes to Bingo a couple of times a week he simply lies on the bed. They have been married for 40 years. 8. His brother in law comes and cleans up the garden about once a month, spending something like three hours doing it. He has not had to use oxygen at this stage. The plaintiff said, and I accept this, that his whole life has become doctors and lawyers. "It just drives you nuts". 9. An issue which was addressed firstly by the parties was what is the correct view so far as medical evidence can deal with such a topic, about how long the plaintiff might hope to survive. There are several doctors' opinions available. Professor Alpers thought that the relevant period was from 2 to 6 months commencing in January. Dr Scroop would allow 9 to 12 months commencing in January. Dr Patterson expressed the view that the plaintiff might hope for 11 months counted from April 2004. The point of all this is not to do anything other than provide some period in respect of which damages might be calculated. All the Court can do is make the best assessment it can in that regard so that monetary matters can then be looked at. Having considered the available opinions and having listened to learned counsel make submissions about the matter it seems to me that the monetary matters ought be assessed on the footing that the plaintiff is likely to have until 1 September this year available to him. 10. I come then to the question of general damages. I have described the onset of symptoms. The more significant symptoms set in, in late 2003. The plaintiff has undergone the aspiration of pleural fluid from his lung. He has had a bronchoscopy. He has had chemotherapy. He has the metastatic disease affecting his limbs. He has had severe emotional upset and his description of his own life now is distressing. He has the pain about which he spoke. I have been much assisted by the submissions of learned counsel for each side about what a proper award of damages is. Such things are very much a matter of impression. 11. I find that a proper award of general damages for the plaintiff is one of $175,000. Interest on two-thirds of that sum at 2 per cent ought be allowed and I would be grateful if someone could do the necessary calculation. As regards loss of expectation of life the plaintiff is entitled to damages on that account. His present age is 61. It seems to me that the proper allowance is one of $20,000. 12. The parties have not been able to agree about past out of pocket expenses. I do not wish to hold people up today. The proper sum for out of pocket expenses is clearly recoverable and I propose to grant liberty to apply in the event that agreement is not able to be reached outside the courtroom. 13. As regards future medical expenses the Court has been assisted, and the parties have too, by the opinion of Dr Alpers which is contained in his letter of 8 January 2004 and part of PX1. At par 9 the doctor deals with a number of costs which he forecasts are likely to be necessary. Two of the matters dealt with towards the end of his list are hospitalisation and hospice care. To allow them does not cause upset, if I may so describe it, in the defendant's camp provided that there is not double compensation in respect of such items. It seems to me that those matters might be fairly allowed and as to the rest of the figures omitting domiciliary support services because they will be otherwise dealt with, and the doctor has proposed figures on an annual basis, if one took one-third of the remaining figures and allowed them as cost of future medical treatment that would seem to me to do justice between the parties. That will produce a figure then of 42,593. 14. As regards the cost of nursing care which is likely to be necessary in the future the Court has had the assistance of the opinions of two occupational therapists and the submissions of learned counsel. It is submitted by counsel for the defendant and I think ultimately accepted by counsel for the plaintiff that a reasonable approach is as follows. For the last four weeks of the plaintiff's life one might properly allow for 24 hour care at $25 an hour, that is $4,200 per week for four weeks. That is $16,800. For the four weeks prior to that it is submitted that a reasonable allowance is care for 12 hours a day at $25 an hour, that is $2,100 a week for four weeks which is $8,400. I should say that I accept the reasonableness of the submission and I find that those are proper allowances for the provision of future care for the plaintiff. 15. For the period between now and the last eight weeks, that is two months, it is submitted that three hours a day will be required at $25, that is $75 per day or $525 per week for a period of eight weeks and the sum of $4,200 is achieved. It is clear that the plaintiff has needed some care in the past. It is a matter in which there would be some swings and roundabouts. There would have been times when he has needed more care than at others. For example, when the chemotherapy has affected him badly, and there would be other days when he is not as needy, but overall it is submitted that to allow three hours per day at $25 per hour since 20 November 2003 would be appropriate. I accept that the submission is fair. I find that such an allowance would provide proper compensation for the plaintiff in the circumstances. That will require a further $11,550 to be added to his damages. 16. As regards care of his garden his own evidence is that they have managed at home with three hours' help per month, that is if one allows $20 an hour that is $60 per month and if one allowed that from November that is five months to now and in the future an allowance at a similar rate for four months would be appropriate. Nine months at $60, $540. The plaintiff then will be entitled to a verdict for the sum of those matters. 17. I am reminded that at a time when we were considering Dr Alpers' letter I indicated that it was important that there ought not be double compensation in respect of the care of the plaintiff towards the end of his life. Having regard to the allowance made in respect of the provision of care about which I have just spoken it will be necessary to remove from the calculations in Dr Alpers' letter the sum of $37,000. I should say that as regards the question of interest on general damages I omitted to say that the calculation, it seems to me, ought properly be done over a period of two years bearing in mind the history of the onset of symptoms which I have described. I get 4,666 almost recurring. Future care, the subtotal is 29,400. Then past care, $11,550. 18. It seems to me we have got this. General damages, $175,000. Interest thereon $4,666. Loss of expectation of life $20,000. Future medical expenses $5,593. Future care $29,400. Past care $11,550. Outdoor maintenance $540. There is no evidence that a wheelchair will be needed. In fact it seems unlikely. The total is $246,749. 19. I enter verdict and judgment for the plaintiff in the sum of $246,749. I grant liberty to apply in respect of past medical expenses in the event that the parties are not able to agree. It is to be noted that no provision has been made in the verdict and judgment for those items. Mr P Blacket SC instructed by Turner Freeman appeared for the plaintiff Ms W Strathdee 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.