Dust Diseases Tribunal of New South Wales CITATION : Taylor v Amaca and Ors [2002] NSWDDT 29 Arthur Taylor Amaca Pty Limited (formerly known as James Hardie and Coy Pty Limited) PARTIES : Bradford Insulation Industries Pty Limited B I Contracting Pty Limited Wallaby Grip (NSW) Pty Limited (In liquidation) MATTER NUMBER(S) : 389 of 01 JUDGMENT OF: Maguire J at 1 :- Employer and Employee Asbestos - Exposure CATCHWORDS: Mesothelioma Damages Assessment of damages LEGISLATION CITED: CASES CITED: DATES OF HEARING: 06/2/02, 07/02/02 EX TEMPORE JUDGMENT DATE : 02/12/2002 Mr W Kearns SC instructed by Turner Freeman appeared for the plaintiff Mr P Blacket SC instructed by Holman Webb appeared for the first defendant LEGAL REPRESENTATIVES: Mr G Rundle instructed by Windeyer Dibbs appeared for the second and third defendants Mr A Scotting instructed by Acuiti Legal appeared for the fourth defendant JUDGMENT: 1. The plaintiff in this action, Arthur Taylor, was born in the United Kingdom on 3 June 1930; that means he is now rising 72. He left school during the second world war and worked in the aircraft construction industry for a time. Thereafter he became an apprentice plumber and had a number of jobs. He served in the Royal Air Force by way of National Service starting in mid 1951 and was stationed in Egypt during the Suez crisis. 2. After his National Service, which appears to have run for a couple of years, he returned to civilian employment in England in 1953. He married his first wife and the mother of his two children in October 1953, and had various other jobs in the United Kingdom until he emigrated to Australia in May 1963. 3. He worked for Fricker Plumbing Contractors from shortly after his arrival in South Australia and he has described in his evidence without any contradiction the various jobs that he worked on. Most importantly, in June 1964 he was sent by that employer, who had a contract with Electricity Trust of South Australia, to the construction site for the Torrens Island Power Station. The construction was in its very early stages. He worked there as a plumber in the open air but after about 12 months he worked inside the A station. There is evidence that during his service there with Frickers he was exposed to the inhalation of asbestos dust and fibre. I need not describe the evidence, which is not contradicted really, of laggers working above him. 4. In about October 1966 the Electricity Trust itself offered Mr Taylor a permanent job with them and he left Frickers and became, in October 1966, the Torrens Island maintenance plumber. He remained in that position until his retirement. That involved his working not only in the A station at Torrens Island but in the B station and it also imposed on him some duties at the Osborne Power Station. His evidence is not really contradicted about the ordinary run of the mill exposure but even more important than that were two events that occurred somewhere between 1973 and 1975 at Torrens Island when the plaintiff led a team of workmen who on a special shift overnight on two instances set about the removal of a very substantial amount of asbestos lagging from casings around a turbine and steam chest in each instance. He said that the amount of asbestos removed was sufficient to fill a truck tray which was 20 feet by 9 feet by 3 foot 6 deep. The same truck was used on each occasion with the same result. His affidavit provided graphic evidence of massive exposure to the dust and fibre liberated by this activity. He describes – and this is not contradicted – how for some time afterwards he was coughing up phlegm which was discoloured and which he says was different from the phlegm ordinarily generated by catarrh, a condition from which he had suffered for quite some time. 5. I find the plaintiff's evidence in respect of all the matters I have outlined above completely acceptable. There is clear evidence that he was exposed to asbestos dust and fibre from products supplied by the first and that some of his exposure was occasioned by the activities of agents of the second, third and fourth defendants. 6. At the start of the trial the issue of liability was in issue but that faded away and at the end of the evidence I was informed by counsel for each defendant that no submissions on liability would be made. To put it shortly I find that the plaintiff was exposed by each of the defendants to the inhalation of asbestos dust and fibre in the periods described; 7. That each of them had a duty of care to protect him from that exposure and to warn him of the dangers that might be involved in such exposure and that each of the defendants was in breach of its duty to the plaintiff. 8. Accordingly there will be judgment for the plaintiff. 9. The plaintiff's first wife died quite some years ago and he subsequently had a second marriage which failed. He has two children from his first marriage, a son who resides in South Australia and a daughter, who celebrates her forty-third birthday today. The daughter, the son-in-law and the plaintiff are the proprietors of some 40 or 50 acres in the Sunshine Coast Hinterland where the daughter and her husband have lived in a house for quite some time with initially their three sons, who are said to be 20, 18 and nine years of age. 10. Until he became unwell with the mesothelioma condition, in respect of which he brings this action, the plaintiff appears to have been dividing his time between South Australia where the son is, Queensland where the daughter is, and thirdly, in Northern Thailand, where he had a number of interests. Initially he went to Thailand about five years ago and while there he learned of a local concoction that is said to be useful in the control of the prostatic cancer from which he undoubtedly suffers. He has been administering that concoction to himself ever since and appears to believe that it has some effect on controlling the cancer. He freely admits that he is also having more orthodox western medication directed to the same purpose. In May of last year he went to Thailand at a time when he was already somewhat unwell and when his daughter suggested that he was not well enough to travel. Whilst he was in Thailand he was overtaken by severe symptoms of pain and loss of weight, which symptoms I find as a fact are the result of a mesothelioma caused by the inhalation of asbestos dust and fibre which I have already found to have occurred. 11. The plaintiff came back to Brisbane Airport, where he was picked up by his daughter and taken to the Nambour Hospital and shortly afterwards to the Prince Charles Hospital in Brisbane. It was during the period of hospitalisation which ended in I think November or December that he was diagnosed as having that mesothelioma. There has been no further loss of weight since he arrived back from Thailand but from December onwards his pain level has been such that he has required frequent administration of morphine in attempts to control it. This morphine has the usual side effect of causing constipation and further medication has been given to remedy that. 12. Upon his discharge from the Prince Charles Hospital the plaintiff returned to the daughter's family home previously mentioned. He did not live in the house and never had up to this time. He had a caravan which was parked about 80 feet down a hill from the homestead and he lived there and looked after himself. The caravan was not equipped with lavatory or ablution facilities and it was his habit before his illness, and indeed right up until a couple of weeks ago, to take himself up to the family home where access was available to such facilities without his having to actually go into the house. As his condition deteriorated between December and 2 February 2002 he reached a stage where he was unable to walk unaided up the hill to use those facilities. He had a motor vehicle parked outside the caravan and was in the habit over recent times of driving himself up the hill rather than having to undertake the troublesome task of walking. Progressively, it seems on the evidence, during the period from December until last week the daughter has been providing him with more meals with the family in the house than had been the practice when he was independent and living in the caravan and would go as any father and grandfather might for an occasional meal in the house. 13. The situation came to a head on Saturday, February 2nd when he became disoriented and not really capable of managing his own medication, when the daughter persuaded (if that is the word) her father to move into house with the family. The house does not really have sufficient accommodation for him but I accept the evidence that there is an enclosed verandah which is reasonably suitable for his accommodation and some additional privacy is afforded by reason of the fact, as I accept, that a bookcase has been repositioned for that purpose. There up to the date of the trial he remained resident. He was able to come to Brisbane on the day before the trial, and as I understand it, remained in Brisbane on the second day of the trial, although he was not at court. He presented as a relatively healthy looking man of 71 years of age. He is not emaciated. He did not display in my presence any indication that he was in pain nor in my presence did he display any of the vagueness and lack of comprehension that are typical side effects of the use of morphine to suppress pain. 14. The plaintiff's case has been run at all stages on the basis that he will continue to live in the daughter's home until his death. This is his wish. That is her wish. However, it seems to me to be unlikely that their wishes will be fulfilled. The ever increasing burden of caring for him, even with the possibility of outside professional care, will ultimately lead to a state of affairs where this lady is simply unable to carry on. Her position at the moment is that she is employed three and a half days a week as receptionist in the business of a physiotherapist. She leaves home on each of the four days concerned at, I think she said, about 8 o'clock in the morning, and I accept that. On the three full days she does not get home until just after her husband gets back from work, and on the short day her arrival at home is delayed in any event by the fact that she uses that afternoon to do the weekly shopping. 15. The plaintiff has been very stoic but the simple fact is that he is spending effectively four days a week from 8 am until 4 pm or so entirely alone and unattended in this relatively remote homestead. That cannot go on and it is my view that having just now entered what Dr Allen calls "stage B" of the deterioration, he will come to stage C, that is a stage that will take him into hospital permanently and terminally at or about 28 May 2002. 16. Whether he stays at home or whether he goes to hospital he will die a very unpleasant death. I have already commented on his appearance and demeanour when I saw him in the witness-box last week. That will inevitably deteriorate and he will be reduced in the last stages of his life to a state where every breath will be a torment and he will be losing weight. He will be unable to sleep and generally in a state of distress that not many of us will ever have to bear. 17. It is often said that no amount of money can compensate for that kind of situation, but there has to be some reasonable limit on general damages. It seems to me to be fair to all concerned if I award the sum of $165,000 for general damages. Interest on that I award in the sum of $1,200. 18. The plaintiff asserts that he is entitled to at least $15,000 for loss of expectation of life. That is the sort of figure that I would contemplate awarding this man at his age except for the complicating factor of the prostatic cancer, which is not in issue. The evidence suggests that without either of his illnesses he would live another 15 years from now. Without the mesothelioma but with the prostatic cancer he would live another 10 years from now. I think in the circumstances it is fair to award the sum of $10,000 for loss of expectation of life. 19. Past out of pocket expenses have been the subject of a schedule prepared by those representing the plaintiff and that schedule has been debated. There is no issue about any item in that schedule except the purchase of a car, which item is withdrawn by Mr Kearns SC for the plaintiff. Accordingly for past out of pocket expenses I award the sum of $11,831.80 20. The next issue that falls to be determined is the likely expectation of this man's life. It is clear that he will die of mesothelioma. I have before me a range of medical opinions some of which are unclear. The lack of clarity for the most part arises out of the lack of clarity of the date from which the opinion is expressed. Dr Roger Allen, a thoracic physician qualified by the plaintiff, reported and indeed gave evidence. His view is that an estimate of expectation of life should be made from the date of diagnosis. I fail to see the logic. It seems to me that any regression of a patient's condition can only be measured from the time when the symptoms emerged. To that extent Dr Allen's evidence is unsatisfactory although his mind seems to run along different, and he would say respectable lines, from those upon which mine does. 21. Dr Windsor expresses an opinion on one reading of it that would take the plaintiff up to November of this year. However, I find it difficult from a reading of particularly the last paragraph of his report to see just what he does mean. The report is written on 21 November last year. The last consultation he had with the plaintiff was on 25 September last year. The last paragraph of the report reads: His prognosis I believe is poor. The mean prognosis for this disease is approximately eight months. I suspect Mr Taylor would likely have a prognosis of approximately 12 months. 22. It is not clear to me whether he is talking about eight or 12 months from emergence of symptoms from diagnosis, from last consultation or indeed from the date of the report, and to that extent Dr Windsor's report is considerably unhelpful. 23. The report of Dr Graham Hart, thoracic surgical registrar is at first blush the most optimistic of all the reports. As regards prognosis for Mr Taylor it is difficult to say as each individual varies. However, given the extent of his disease and its presentation my expectation is that his outlook life expectancy may extend up to two years, however, the average for people at his stage is approximately 12 months. As I have said that this is highly variable on an individual basis however. 24. Now Dr Hart wrote that report on 5 December 2001 and appears not to have seen the plaintiff since his discharge from the Prince Charles Hospital on 25 August. I take it although this is by no means clear that the respective estimates he gives are to be measured from 25 August 2001. 25. The undeniable facts are that in May 2001 there emerged symptoms which were not diagnosed but in hindsight were clearly those of early mesothelioma. The diagnosis was made at the Prince Charles Hospital in August 2001. The plaintiff started morphine treatment to relieve severe pain in December 2001. On those facts and upon the various estimates provided by the doctors and upon my own considerable experience having sat in this Tribunal now for eight and a half years I have to decide today how long this man is likely to live. During the course of the evidence I expressed the view that in the case of male plaintiffs it was to be expected that such a patient would survive 14 months from the date of the emergence of symptoms. That would take him through to July 2002. Mr Rundle of counsel for the second and third defendants would have me find that the plaintiff will die on 6 July 2002, and that submission I think is supported by counsel for the other defendants. 26. Mr Kearns on the other hand for the plaintiff contends for the end of October 2002, and he puts that submission very largely on the basis that the plaintiff presently presents, that is on Wednesday of last week in court in the witness-box dressed for town and for the most part clearly understanding the proceedings around him and the questions which he was asked. Mr Kearns suggests that this shows that he is better than the typical plaintiff with this disease. It must be borne in mind that a great majority of the cases we see in this court come to a hearing considerably more than eight or nine months after the emergence of symptoms, which is what has happened here. Doing the best I can I think it fair that I should hold that the plaintiff is likely to live until the end of July 2002. 27. The next issue that falls to be determined is the amount that ought be awarded for hospitalisation of the plaintiff in what Dr Allen has called stage C of his deterioration, that is when the need for nursing and other ancillary care escalates in the final weeks or months of the plaintiff's life. A number of figures arise for consideration in a number of ways. The plaintiff was hospitalised at Nambour Hospital last year at a cost of $683. Dr Allen suggests that a reasonable charge would be $484 shared accommodation or $536 for private accommodation That gives a mean of about $500. Lesley Stephenson suggests $535 shared, $585 single, which gives a mean of $560. Ms Oates put forward a figure of $345 which I think has been sufficiently disposed of by PX.3, which was introduced into evidence earlier today and the subject of a ruling of mine which has been recorded. I do not see the $683 figure being plucked out of the past as being appropriate because it exceeds the figure in the case as originally advanced on this issue on behalf of the plaintiff. I think the best I can do is to roll up the Allen view and the Stephenson view and allow a sum of $525 per day. 28. Future out of pocket expenses have been the subject of very detailed debate over a whole range of relatively minor items. If one looks at Mr Kearns' schedule the future out of pockets of $3,855.10 should be added to that $9,604 to replace the 34 thousand odd. The particular items in the schedule of non medical future out of pocket expenses were debated at some length singly and what was said by each counsel and by me is recorded in the transcript. It is sufficient to say that the amounts I allow for the future non medical out of pocket expenses amount in total to $3,855.10. 29. Future medical and the like expenses depend upon what I find to be the plaintiff's needs into the future. It is my view, having considered all the evidence, that it is likely that the plaintiff will continue under his present regime until 28 May 2002 when it will become necessary for him to be hospitalised for the remainder of his life; that is there will be a period of nine weeks when he will be in hospice care. 30. The future medical needs can be broken up into two periods, one for the further care at home and finally the other for the post admission to hospital care. Those particular amounts and rates have been debated and what has been said by counsel and by me has been recorded. For general practitioner attendance between 2 February 2002 and 28 May 2002 I allow the sum of $1,109. For specialist thoracic physician attendances during the same period I allow the sum of $368. In respect of the period post 28 May I allow the sum of $1,564 giving a total of future medicals of $3,214, so that future out of pocket expenses total $13,459.10. 31. Future medicals - under (a) 11.90, 1400. (b) 300 1260 (c) and (d) nothing, (e) phase A nothing and the other two come in at $204 and $3,500, (f) one figure only $1750 (g) nothing. - Equals $9604. 32. The future medical expenses have been the subject of detailed discussion and in respect of general practitioner treatment in the present phase I allow $11,090.00 and in the terminal phase $1,400. For thoracic specialist attendances in the same respective periods I allow $300 and $1,2060. For medication in the present phase I allow $204 and in the terminal phase $3,500. For pathology, respiratory and radiological testing I allow the sum of $1,750. I make that a total of $9,604. To that must be added $3,855.10 to make a total of $13,459.10 for future out of pocket expenses. 33. That brings me to the claim pursuant to Griffiths v Kerkemeyer (1977) 139 CLR 161. I think it fair to allow the plaintiff 10 hours attendances per week at $25 per hour up to 2 February plus a further six attendances of 1 hour each for massage, which has been provided by the daughter, that all comes out at $6,150. 34. I also think it fair that in the remaining phase at home he should have 15 hours at $25 per hour over that period of seventeen weeks which comes out at $6,375. 35. The terminal stage from 29 May to 30 July in a hospice will involve $525 per day for nine weeks, which I make $33,075. 36. There should be interest allowed on past Griffiths v Kerkemeyer at $300. 37. On my calculations the various items of damages total $247,390.90. 38. Accordingly there will be judgment for the plaintiff against each of the defendants in the sum of $247,390.90. 39. Past GRIFFITHS v KERKEMEYER is $6,150 and the future is $3,945 plus 33 40. I order the defendant to pay the plaintiff's costs. 41. Cross-claims for mention 22 April 2002. Mr W Kearns, SC instructed by Turner Freeman, Solicitors appeared for the plaintiff Mr P Blacket, SC instructed by Holman Webb, Lawyers appeared for the first defendant Mr G P R Rundle instructed by Windeyer Dibbs, Solicitors appeared for the second and third defendants Mr A Scotting instructed by Acuiti Legal appeared for the fourth 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.