Dust Diseases Tribunal of New South Wales CITATION : Hill v Cockatoo Dockyard Pty Ltd [2003] NSWDDT 14 Kevin Charles Hill Cockatoo Dockyard Pty Ltd PARTIES : Wallaby Grip Ltd Wallaby Grip (BAE) Pty Ltd Trikon Pacific Holdings Ltd MATTER NUMBER(S) : 111 of 2003 JUDGMENT OF: O'Meally P at 1 CATCHWORDS: :- LEGISLATION CITED: CASES CITED: Griffiths Kerkemeyer [1977] 139 CLR 161; Sullivan v Gordon [1999] 47 NSWLR 319 DATES OF HEARING: 26-27/8/03 EX TEMPORE JUDGMENT DATE : 08/27/2003 FOR PLAINTIFF:Mr R A O'Keefe instructed by Alex Stuart and Associates. FOR FIRST DEFENDANT: Mr B R Ferrari with Mr D R J Toomey instructed by A O Ellison & Co LEGAL REPRESENTATIVES: FOR SECOND DEFENDANT: Mr T J Morahan instructed by Acuiti Legal. FOR THIRD DEFENDANT: Mr G P F Rundle instructed by Hicksons JUDGMENT: 1. This is an action for damages by Kevin Charles Hill against Cockatoo Dockyard Pty Ltd, Wallaby Grip Ltd and Wallaby Grip (BAE) Pty Ltd. 2. The plaintiff alleges, and it is accepted, that in the course of his employment by each defendant he was exposed to asbestos dust and fibre. It is also the case that in his employment by the first defendant he used products manufactured by the second defendant. It is now accepted that as a result of these exposures he has contracted malignant mesothelioma. 3. The defendants have agreed upon the contribution each should make to the damages to be awarded to the plaintiff. It is implicit from that, that the defendants also concede the plaintiff is entitled to a verdict against each one of them. The plaintiff 4. The plaintiff is now nigh on 70 years and will attain that age on 5 October 2003. According to the most recent Australian life tables an Australian male of 70 years has a life expectancy of 13.30 years; however, the evidence before me is that by reason of unrelated medical conditions the plaintiff's life expectancy apart from his mesothelioma would have been between eight and ten years. 5. Upon retirement from active work the plaintiff, who lives in a three bedroom cottage in the Sydney suburb of Ryde, embarked with his wife upon a series of caravan journeys around Australia. These journeys occupied up to three months and on one of them the plaintiff and his wife travelled as far as Broome in the north west of Western Australia. His evidence is that prior to becoming symptomatic he was able to lead a normal and fairly active life engaging in walking, swimming and some gardening. His intention following retirement, and until the symptoms of mesothelioma first presented, was to continue to engage in journeys about the nation. 6. It is relevant to record that prior to the onset of symptoms the plaintiff had suffered a myocardial infarction. He seems to have made a reasonable recovery from that event. Soon after it he underwent angioplasty and stents were inserted. Lipitor, Renitec and Aspirin are taken on prescription or advice. Additionally, he had arthritic symptoms. The presentation of mesothelioma 7. In October 2002 he began to experience pain and discomfort in his abdomen. He consulted his general practitioner, Dr Hulak, and was referred to Dr Phillip Barnes, a gastroenterologist. He underwent endoscopy and colonoscopy, but these procedures failed to disclose the cause of his pain and discomfort. X-ray and CT examinations followed, and abdominal CT scan revealed the presence of a peritoneal mass and ascites. He was then referred to Dr D R Bell, an oncologist and an abdominal biopsy was carried out. The biopsy confirmed that the plaintiff was suffering from peritoneal malignant mesothelioma. Accordingly, Dr Bell arranged for a course of palliative chemotherapy. This resulted in a temporary symptomatic improvement but his tumour remained palpable. 8. On 11 April 2003, and on occasions thereafter, he submitted to the drainage of ascites from his abdomen. The presence of such fluid in cases of peritoneal mesothelioma is common and it is inevitable that he will undergo further drainage of ascites. 9. Dr Michael Burns is a thoracic physician with considerable experience in the diagnosis and treatment of dust diseases, particularly those caused by exposure to asbestos. He was qualified by the plaintiff for the purposes of this case. In a report of 11 April 2003 Dr Burns observed that there was not a great deal recorded about the natural progression of peritoneal mesothelioma. He said, however, there was no reason to think that it would be any different from the progress of cases of pleural mesothelioma. Nevertheless he observed "Peritoneal mesothelioma is not likely, in my opinion, to produce the same type of pain that pleural involvement is". 10.Dr Burns proceeded also to observe that the gradual development of increased peritoneal fluid, that is ascites, was likely to produce severe debility and need peritoneal drainage from time to time. It was not possible for talc pleurodesis to deal with a peritoneal tumour, though pleurodesis is a procedure not infrequently used in cases of pleural mesothelioma. Dr Burns also noted that as the tumour invaded the abdominal wall, pain would become a problem. Treatment with analgesics, Dr Burns thought, might be difficult as the plaintiff considered himself to be intolerant of codeine because of nausea. Oral morphine was suggested as a form of therapy by Dr Burns and, since Dr Burns reported, the plaintiff indeed has commenced and continues taking oral morphine. Dr Burns did observe that both codeine and morphine are derivatives of opium and he thought nausea from morphine might be more than would occur from codeine. He also thought that analgesia "further down the track" might be difficult. Dr Burns wrote of the possibility of a lot of discomfort and pain and suffering. 11.Dr A B X Breslin was qualified by the second defendant. In a report of 10 June 2003 Dr Breslin noted that the plaintiff had lost some 15 kilograms in weight since September 2002. He also noted complaints of abdominal pain which was both anterior and lateral and which radiated to his back. At the time of the consultation, that pain had been present for eight months, though it was not getting significantly worse. It was intermittent and felt sharp and, from time to time, "like a pressure". Dr Breslin noted that pain might wake him at night and be distracting. The plaintiff informed Dr Breslin that he felt tired. He was able to shower and to attend to his normal personal care and hygiene. There was some heartburn, nausea, constipation and intermittent diarrhoea. Though not recorded by Dr Breslin, the plaintiff does take diuretics and no doubt this led to the complaint and its notation by Dr Breslin that the plaintiff had nocturia three to four times at night. Parenthetically it should be observed that during episodes of nocturia the plaintiff's wife usually assists him to the toilet. General damages 12.It is well known that mesothelioma is an incurable disease which causes exquisite and unremitting pain which is difficult to control. The usual Australian protocols for relief of intractable pain are morphine and MS Contin. My experience is that in cases of mesothelioma, morphine seldom reduces pain, at best it is plateaued. 13.In assessing an amount for general damages I am mindful of the observations of Dr Burns implicit in which is the suggestion that cases of peritoneal mesothelioma do not have the same exquisitely painful consequences as pleural mesotheliomas. To some degree that expression of opinion has been qualified in the report of Dr Burns, to which I have referred. It is important to consider also that the plaintiff will continue to undergo drainage of abdominal fluid and experience accompanying pain and discomfort. 14.Bearing these factors in mind I think a sum appropriate to award the plaintiff for general damages is $175,000. 15.It is true that the plaintiff has already experienced pain and that he described to Dr Breslin. I think it fair to assume that the worst of his pain is yet to come, so that, of his general damages I would allocate one-third to the past and upon that allow interest agreed to be at $1,008.60. Future Griffiths v Kerkemeyer expenses 16.The parties have agreed that the plaintiff's entitlement to future Griffiths v Kerkemeyer (1977) CLR 139 161 expenses is $22,000. Remaining heads of damages 17.What therefore is left for me to determine are amounts appropriate for loss of expectation of life, for past Griffiths v Kerkemeyer expenses and future Sullivan v Gordon [1999] 47 NSWLR 319 damages. Additionally, an amount in respect of the costs of care for the last month of the plaintiff's life needs to be assessed. Loss of expectation of life 18.In respect of loss of expectation of life I have already referred to the opinion of Dr Breslin and the Australian life tables. I think a sum appropriate to compensate the plaintiff for loss of life expectancy is $10,000. Past Griffiths v Kerkemeyer expenses 19.I have been provided with calculations made on the plaintiff's behalf based to a degree on the evidence, but only some parts of the evidence, concerning the tasks which he undertook before he became symptomatic and in respect of which a claim based upon the principles enunciated in Griffiths v Kerkemeyer is made. In assessing damages under this head a broad brush approach at best can be taken. Seldom, if at all, do people keep notes of ordinary tasks undertaken before illness or injury occur. At best, estimates are made and estimates, whilst honestly made, often are inaccurate. In viewing the plaintiff's assertion that, for example, he spent 2 hours a day in his garden, one must consider also that for much of the time following his retirement he embarked upon a series peregrinations about the nation. I do not view the plaintiff as being dishonest, but I am not persuaded to the view that his assessment of the time spent on tasks around the house, which now are beyond him, is accurate. 20.Doing the best I can to do justice between the parties and taking account of the fact that his inability to perform such tasks increased with the efluxion of time, the approach I am disposed to take is to consider his entitlement to Griffiths v Kerkemeyer expenses for the 45 week period he has been unable to perform those tasks at an average of 5 hours per week. This, I am informed, computes to $5,062.50. Sullivan v Gordon expenses 21.A claim is made for Sullivan v Gordon expenses following the date of the plaintiff's presumed death. The plaintiff's wife is beset by the consequences of a number of medical conditions, some of them not uncommon in people of her age, that being 67 years. She has varicose veins, she has an emphysematous condition, osteoarthritis, Raynaud's disease, thyroid goitre and thyroiditis. She is under the care of Dr Hulak, also her general practitioner, and seemingly has been referred to Dr Breslin, who is, as noted, a thoracic physician, Dr Piper, a surgeon, Dr Edwards, a cardiologist, and Dr Wilmshurst, an endoctrinologist. 22.It is said that, by reason of her conditions, there is much that she was not able to do and will not be able to do. Within her evidence I find it difficult to determine whether all of these conditions in fact limit what she is able to do and will be able to do and as consequence of which her husband carried out tasks to assist her and would, but for his mesothelioma and subsequent death, have continued to carry out. I failed to note that Mrs Hill also had undergone a right total hip replacement. She spoke of difficulty in carrying out the heavier aspects of housework. From time to time her husband did the vacuuming, but so also did she. I would not regard, as it was submitted to me it was, vacuuming as a heavy aspect of housework. I would make the same observation in respect of laundering clothes and domestic linen and hanging washed items on a clothes line. 23.Additionally, I would not accept that because of her condition the plaintiff was required to drive her to medical appointments. The fact is that Mrs Hill does not and as far as I am aware never has held a driver's licence. When her husband retired he would, from time to time, as also would her neighbours or daughters, drive her to medical appointments or to do the shopping. I am not persuaded that she has a need to be driven occasioned by any impediment or illness. 24.I am, however, persuaded to the view that, because of arthritis and her hip replacement, she would have difficulty engaging in household tasks which required her to place herself into a position of flexion or to squat or kneel. The approach one is to take in assessing the entitlement again involves the application of a broad brush. I must take into account that the plaintiff's wife has a number of medical conditions, not all of which incapacitate her, but some of which, it would seem, according to medical opinion, affect her life expectancy. In particular her emphysema is a disorder to be considered and the fact that she has Raynaud's phenomenon would seem to indicate the possibility of future circulatory disease. 25.I am persuaded to the view that an allowance of 2 hours per week at the agreed rate of $22.50 should be made, but for vicissitudes, bearing in mind the possible consequences of the illnesses to which I have referred, should be discounted by 30 per cent. That I am told by counsel computes to $14,228.54. Cost of care 26.The remaining matter is the cost of care for the last month of the plaintiff's life. Not surprisingly the plaintiff expressed a wish, at least the wish is implicit in what he said, that he should remain and die at home. In the circumstances of this case I think that is an unrealistic expectation. The condition of his wife and the restrictions that her illnesses impose upon her render that unlikely. People in the terminal stages of their lives, particularly those suffering from mesothelioma, require constant care and attention. To minimise discomfort to the extent that that can be done involves reasonably heavy work. I think the likelihood is that the plaintiff will spend the last month of his life in a hospice, the cost of which will, in the first instance, be met by the Dust Diseases Board but which will be repaid to it by the defendants, I assume in the proportions agreed in respect of their contribution to the plaintiff's damages. Damages 27.Thus the plaintiff is entitled to damages made up as follows: General damages $175,000.00 Interest on past general damages $1,008.60 Past Griffiths v Kerkemeyer expenses $5,062.50 Interest thereon $197.15 Future Griffiths v Kerkemeyer $22,000.00 Future Sullivan v Gordon expenses $14,228.54 Loss of expectation of life $10,000.00 Making a total of $227,496.79 28.This sum should be rounded off to $227,500.00. 29.There will be a verdict for the plaintiff and judgment in the sum of $227,500. oOo 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.