Dust Diseases Tribunal of New South Wales CITATION : Lake v Cockatoo Dockyard Pty Ltd [2003] NSWDDT 4 David John Lake PARTIES : v Cockatoo Dockyard Pty Ltd ACN 000 025 918 MATTER NUMBER(S) : 490 of 2002 JUDGMENT OF: Johns J at 1 Damages :- Assessment of damages CATCHWORDS: Comparison of quantum with awards in other cases Deduction from loss of future earnings for plaintiff's personal maintenance LEGISLATION CITED: Dust Diseases Tribunal act 1999, s25 (3) Bevan v Amaca Pty Ltd [2001] NSWDDT 8; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; Chulcough v Holley (1968) 41 ALJR 336; CASES CITED: CSR Ltd v Bouwhuis (1991) 7 NSWCCR 223; James Hardie & Coy Pty Ltd v Roberts (1999) 47 NSWLR 425; Planet Fisheries v La Rosa (1968) 119 CLR 118; Sullivan v Gordon (1999) 47 NSWLR 319; Sullivan v Micallef (1994) Aust Torts Reports ¶81-308 DATES OF HEARING: 7 & 28 February 2003 EX TEMPORE JUDGMENT DATE : 02/28/2003 FOR PLAINTIFF: Ms A J Katzmann SC instructed by Slater & Gordon LEGAL REPRESENTATIVES: FOR DEFENDANT: Mr J A McIntyre SC instructed by A O Ellison & Co JUDGMENT: 1. The plaintiff brings proceedings in damages against the defendant for his mesothelioma. The case arises out of the employment of the plaintiff by Cockatoo Dockyard from approximately November 1963. He completed his apprenticeship with the defendant and his employment came to an end when he accepted a redundancy package in November 1990. 2. As the matter has unfolded the defendant was able to indicate that it did not propose to offer any evidence or make any submissions in regard to the question of liability to pay damages to the plaintiff. The plaintiff's case is that in the course of his duties he was exposed to the inhalation of asbestos dust and fibre. It is pleaded that the defendant was negligent in certain respects concerning that inhalation. It seems to me that the evidence of the plaintiff together with the clear evidence contained in the answers to interrogatories as tendered makes it clear that the plaintiff was negligently exposed to asbestos dust and fibre in his employment with the defendant. 3. The nature of the work undertaken by the dockyard and the involvement in it by the plaintiff, in particular his direct and actual involvement with the utilisation of asbestos lagging and other asbestos materials both in the manufacture and in the repair and maintenance of many vessels described by him and in other features of his work in and about the dockyard clearly illustrates the significance of his asbestos exposure over a period of time when such exposure undoubtedly was known to be a risk to the plaintiff's health and the consequent cause of his mesothelioma. 4. The court is therefore left with the task of assessing the damages. As the matter has progressed certain items of damage have been agreed by the parties which has made the court's task easier than it might otherwise have been. I think it is appropriate to acknowledge the help provided by the legal practitioners in this case and the courtesy with which it has been presented and contested. 5. I turn then to the question of the general damages. The plaintiff began to feel unwell in June 2002. He developed a bad cough associated with significant pain that passed from his shoulder to his lung to his back. At the time deep breathing was painful. It was first thought by his general practitioner that he had a bout of pleurisy. He was prescribed antibiotics. The nature of his deterioration thereafter has been described in evidence by his son and it was obvious that the plaintiff's condition was not improving. The plaintiff then returned to Dr Scriven in October at which time he was asked whether or not he had worked with asbestos. He was referred to Dr Harris in Hornsby later in October who spoke to him at that time about mesothelioma. At this discussion the plaintiff not surprisingly became very concerned. As a consequence 50 mL of fluid was drained from his lung. It was sent away for pathology. 6. An arrangement was made for a consultation with Dr Farnsworth whom he saw in the first week of November 2002. He underwent at the Sydney Adventist Hospital on 14 November 2002 a pleural biopsy and thoracotomy of his lung. After the operation he was informed that he had some form of cancer which needed to be confirmed. Nonetheless when he was informed of the nature of his cancer, the subject of which had been concerning him for some months, he was undoubtedly, in my view, quite devastated by the nature of the cancer that had been diagnosed. He was also informed of his hopeless prognosis as a consequence of this condition. 7. He was referred to Dr Pavlakis at Royal North Shore Hospital in an endeavour to stabilise his mesothelioma with chemotherapy. Dr Pavlakis specialises at the Royal North Shore Hospital in this kind of treatment and is conducting a study in respect of sufferers of mesothelioma using his combination of drug therapy. Dr Pavlakis in his evidence described that the plaintiff had a rapidly progressing symptomatic advanced pleural mesothelioma which after some systemic therapy by him unfortunately did not stem the advance of the plaintiff's condition who by this time had progressive symptoms. As a consequence of the lack of clear benefit from the therapy by Dr Pavlakis it was decided to stop the therapy and to observe the future. 8. There was a second line option of chemotherapy that was to be considered in the future. The plaintiff was losing weight. His prognosis at the time was said to be months but in a document also in evidence in response to a request from the plaintiff's legal practitioners which was dated 27 February 2003 Dr Pavlakis thought an estimate of three to four months was generous. The plaintiff had a further complication of his condition in that he developed a pulmonary embolus which has necessitated the plaintiff taking Warfarin from which there is a risk of sudden death. There were undoubtedly very significant signs of impaired respiratory function and the overall condition of the plaintiff in this case can only be described as miserable. 9. His future is bleak and hopeless. In terms of the future he will be increasingly breathless, a significant aspect of which has already begun in that the plaintiff is now requiring constant oxygen at his home. There will be increasing restriction of movement which is a characteristic feature of this disease and the pain will increase in severity. In circumstances such as this case the mesothelioma is affecting a large area of the pleural surface of his lung and there will be an even more significant area of pain. The magnitude of the area may give an index of the severity of the discomfort and it will be worse as time goes on. There will be an increase in necessity for the use of morphine and like drugs as the plaintiff becomes more restricted by the mesothelioma process. There will be side effects from the medication which will be troublesome and painful in its own right. Then will come the excessive sedation by morphine and some definite effect on his respiratory centre. 10. Dr Schneeweiss in evidence tendered under the provisions of s 25(3) clearly describes the development of the metastatic spread from outside the thoracic cage and the extensive involvement of other organs as a virtual asphyxiation as a result of external pressure on the lung and the fact that the system does not make additional allowances for that and the patient becomes aware of the shortness of breath. 11. Whatever may or may not be the nature of the misquote by Curtis J in the matter of Bevan v Amaca Pty Ltd [2001] NSWDDT 8 at paragraph 23, what is clear is his statement that air and life are inextricably connected. 12. This is not a case to compare and contrast suffering. The general damages in this case are fixed by my considerations of the injury done to Mr Lake. It is not only injury that relates to his physical pain but damages for his injured feelings including "the hurt, anxiety, loss of self-esteem, the sense of indignity and the sense of outrage felt by the plaintiff" (Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 71 per Brennan J). 13. The plaintiff's counsel has clearly illustrated in her submissions the elements that relate to these aspects of the consideration of the plaintiff's damages. He is comparatively young. He was independent and active. He could have expected a significant and rewarding life. He was well regarded by his employer and he was a man who had plans for the future; in particular he has a long history of close relationships with his son and his daughter and with his grandchild whom he now will not see grow. Undoubtedly these things were important to him and he suffers with a sense of great loss as a consequence of the impact on him of his condition. 14. Further details of the pain generated by virtue of the fact that the pleura covering the lung has the notional space between it and the lung removed are clearly described by Dr Schneeweiss. It is not always possible in the circumstances to deliver sufficient analgesic medication to make a sufferer comfortable and there is the possibility of no truly adequate relief. 15. The end of the process is also illustrative of the intensity of the suffering that takes place. The plaintiff is a strong man and has sought to make light of his plight at least before his children but unsuccessfully, it would seem, because it is certainly apparent to his son. It has been submitted that the length of the severe symptoms is relatively short. This is not an unfamiliar submission that is made by defendants in cases such as these and I think it has been adequately dealt with by the Court of Appeal in the matter of CSR Ltd v Bouwhuis (1991) 7 NSWCCR 223 and I need say no more in regard to it. 16. Submissions also have been made that one cannot ignore the general range of amounts for pain and suffering that are given in cases of this kind. One must always, however, in the circumstances be cognisant of and follow Planet Fisheries v La Rosa (1968) 119 CLR 118 as indeed has been agreed by the parties. 17. However, in Sullivan v Micallef (1994) Aust Torts Reports ¶81-308 Clarke JA referred to the matter of Carson v John Fairfax & Sons Ltd (supra) and stated that if it was legitimate for an appellate court concerned with an appeal against the quantum of award in a defamation case to bear in mind the scale of values, it must follow that in cases of serious physical injury the court is not only entitled to but bound to bear in mind a scale of values. 18. I think the nature of the submission is amply dealt with by Windeyer J in Chulcough v Holley (1968) 41 ALJR 336 where at 338 he stated: Once it is admitted that money and physical and mental incapacity for the enjoyment of a full life are in truth incommensurable, it seems to me meaningless to speak of a verdict which is out of proportion, unless some monetary standard or pattern be assumed. Of course no two cases are exactly alike. Bodily harm may be similar, but the consequences for individuals vary. One award is never really a precedent for another case. But we would I think be ignoring facts if we were to say that judges when asked to consider whether a particular view is beyond the bounds of reason — either excessive or inadequate — are unmindful of what was done in other cases, similar or dissimilar. If we were to say that, we would I consider deceive ourselves, as well as belie statements in judgments of high authority. 19. I think in the circumstances of this case, given the nature of the case and the condition and its complications, that the appropriate award to be made in respect of pain and suffering is $180,000 upon which there is to be 2 per cent interest for 8 months, on half the sum. 20. In dealing with the question of loss of expectation of life one is constrained by authority to give weight to questions of moderation and ideas of fairness. Taking into account the life expectancy of a man the plaintiff's age I would think that in the circumstances the sum of $20,000 is not inappropriate to award for loss of expectation of life. 21. The question of past care and services that have been provided by the family members has been agreed upon at $12,380. The plaintiff claims an additional sum for services provided by others in relation to the provision of food and other particular needs, such as shopping, of the plaintiff by members of his congregation. This has been described in his affidavit at paragraph 83. In assessing the amount I do not take into account time in providing emotional support as the basis of damages in respect to this particular item but nonetheless I think the amount allowed truly reflects the time spent which is compensable and it seems to me that a total amount of $15,777 is appropriate in the circumstances. Interest on past care at 5 per cent for 6 months is to be included and is the sum of $334. The question of future care and services has been agreed upon at $12,000. 22. I then turn to the question of the services provided by the plaintiff to his mother in the past in accordance with the provisions of Sullivan v Gordon (1999) 47 NSWLR 319. The defendant has submitted that in reviewing the evidence the time spent in regard to this item is three hours per week rather than the six hours allowed for by the plaintiff. I have noted what is contained in the transcript and in particular the assistance that was also provided by the other members of the plaintiff's family to their mother. It is fair to say that the plaintiff was in close proximity to his mother's home and therefore was more readily available. Perhaps some allowance should be made for that factor. In that regard I think that what should be allowed is four hours per week for the 36 weeks in the past and that a similar provision should be made for the future for the lost years for four years. 23. In regard to the question of the loss of earnings for the future there is a dispute between the parties in regard to the question of maintenance — that is the plaintiff's personal maintenance in order to produce the income in a manner in which was described by Sheller JA in James Hardie & Coy Pty Ltd v Roberts (1999) 47 NSWLR 425 at 445-6. I am of the view that what has been allowed of $120 maintenance during the lost years is appropriate and should be the sum taken into account. I do dispute, however, that this is a case for the application of 10 per cent in respect of vicissitudes. In my view 15 per cent should be applied given the fact that the plaintiff, although in some ways from my perspective comparatively young, was still reaching that time of life when the nature of the consequences of increasing age would have an effect. In those circumstances, as already stated, 15 per cent should be allowed for vicissitudes. 24. The loss of superannuation benefits of $20,103 has been agreed upon by the parties. 25. The plaintiff is entitled to a verdict made up as follows: General damages $180,000 Interest on half at 2 per cent per annum for eight months $1200 Loss of expectation of life $20,000 Past care/ services $15,777 Interest on past care/ services at 5 per cent per annum for six months $394 Future care/ services $12,000 Services to the mother during the plaintiff's lifetime $3763 Services to the plaintiff's mother during the lost years $20,580 Loss of earnings $131,795 Loss of superannuation benefits $20,103 TOTAL $405,610 26. There will be verdict and judgment for the plaintiff against the defendant in the sum of $405,610. 27. I order the defendant to pay the plaintiff's costs. Ms A J Katzmann SC instructed by Slater & Gordon appeared for the plaintiff Mr J A McIntyre SC instructed by A O Ellison & Co 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.