Dust Diseases Tribunal of New South Wales CITATION : Sinclair v Resi Corporation and Anor [2003] NSWDDT 1 Murray Sperling Sinclair PARTIES : Resi Corporation Wallaby Grip Ltd MATTER NUMBER(S) : 163 of 2001 JUDGMENT OF: O'Meally P at 1 :- Dust diseases action for damages negligence occurring wholly within South Australia application of South Australian law Limitation of Actions Act SA s48 CATCHWORDS: material facts accrual of cause of action costs application by defendant for special order adjournment defendants adduce further evidence special order refused LEGISLATION CITED: Limitations of Actions Act 1936 - s36 & s48 Dust Diseases Tribunal Act 1989 - s11A CASES CITED: Griffiths v Kerkemeyer (1977) 139 CLR 161 DATES OF HEARING: 20/11/2002, 21/11/2002, 06/02/2003 EX TEMPORE JUDGMENT DATE : 02/06/2003 PLAINTIFF: Mr J L Sharpe instructed by Turner Freeman. LEGAL REPRESENTATIVES: FIRST DEFENDANT: Mr G J Parker instructed by Church & Grace. SECOND DEFENDANT: Mr G F Little, SC instructed by Acuiti Legal. JUDGMENT: 1. This is an action for damages by Murray Sinclair against Resi Corporation and Wallaby Grip Pty Ltd. 2. The plaintiff is now 75 years old, having been born on 17 November 1927. He was employed by the first defendant on 8 February 1944 and remained its employee until the end of 1950. During the course of his employment by the first defendant he was, at least moderately, exposed to asbestos dust and fibre emanating from products produced or manufactured by the second defendant. 3. It is not disputed that as a result of negligent exposure to asbestos the plaintiff suffers asbestos related pleural disease. He brings this action claiming damages not only in respect of disability caused by asbestos related pleural disease, but also by asbestosis. Limitation defence 4. The first defendant raises a defence under the Limitation of Actions Act 1936 of the State of South Australia (the Limitation Act). I have not yet recited, but it is the case, that the plaintiff was employed and exposed to asbestos in the State of South Australia, and only in that State. The negligent acts and omissions relied upon by the plaintiff were committed or suffered in the State of South Australia, and only in that state. The law of South Australia therefore applies in this case. 5. S 36 of the Limitation Act provides: (1) All actions in which the damages claimed consist of or include damages in respect of personal injuries to any person, shall be commenced within three years next after the cause of action accrued but not after. (2) In this section "personal injuries" include any disease and any impairment of a person's physical or mental condition. 6. S 48 of the Limitation Act permits a court to grant an extension of time for instituting an action. S 48 relevantly provides: (2) A court may exercise the powers conferred by this section in respect of any action that - (a) the court has jurisdiction to entertain; or (b) the court would, if the action were not out of time, have jurisdiction to entertain. (3) This section does not - (a) ........ (b) empower a court to extend a limitation of time prescribed by this Act unless it is satisfied - (i) that facts material to the plaintiff's case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff; or (ii) ........ and that in all the circumstances of the case it is just to grant an extension of time. 7. The second defendant, expressly, does not rely upon a defence under the Limitation Act. 8. As early as 1989 the plaintiff suffered symptoms of breathlessness. He consulted a doctor and was referred to Dr Stubberfield, a cardiothoracic surgeon. The plaintiff underwent radiological examination. The radiological examination confirmed the presence of an anterior mediastinal mass which was suggestive of a benign tumour. A thoracotomy was carried out. The tumour was confirmed benign. In 1990, following the thoracotomy, further chest x-rays were undertaken and pleural plaques were revealed. The plaintiff was made aware that his pleural plaques resulted from asbestos exposure. 9. It is upon those facts that the first defendant says the plaintiff was or ought to have been aware of material facts. 10. With all respect to counsel for the first defendant I am unable to agree. Pleural plaques are markers of exposure to asbestos. They are rarely disabling, though in a small minority of cases they may prove to be; certainly they were not disabling in the case of the plaintiff. It is true, also, that he was fearful of developing cancer, and cancer was suspected, but surgery negated the presence of cancer. 11. In accordance with good medical practice, Dr Stubberfield informed the plaintiff that he should undergo regular review with a view to ascertaining, if it became the case, that an asbestos disease had developed. He did so for several years until Dr Stubberfield said such reviews were no longer necessary. 12. Had the plaintiff sued in 1989 or 1990 he would, in my view, have failed, because at those times he had suffered no relevant damage. It was not until 21 January 2001 when he was interviewed by solicitors, in respect of another case in which his evidence was thought to be material, that he described his symptoms and was sent by the solicitors for examination by Professor Alpers. Professor Alpers, having examined him and having arranged lung function tests and high resolution CAT scanning, came to the view that the plaintiff had benign asbestos related pleural disease, that there was a possibility of mild asbestosis, also mild airflow obstruction and probable sleep apnoea. The plaintiff informed Professor Alpers at that time that he was feeling well though had some dyspnoea on exertion. He did have some right anterior chest pain, but there was no cough, wheeze or recurrent infection. 13. I am of the view that there is no defence available to the first defendant under the Limitation Act. 14. If it be the case, as said by the plaintiff in par 48 of his affidavit sworn on 19 November 2002, that he was "becoming increasingly short of breath over the past four years", and, if it be the case that there was no diagnosis of asbestos disease until the plaintiff was seen by Professor Alpers in March 2001, and if the plaintiff was unaware that he had asbestos related pleural disease as distinct from pleural plaques, then the plaintiff would have been unaware of material facts. 15. The action was commenced on 1 May 2001. The symptoms which were troubling the plaintiff began, according to his affidavit, three or four years earlier. If it were then that the plaintiff first suffered relevant damage that would put the time of the accrual of action at November 1998 at the earliest, and, accepting that, the statement of claim would have been issued before the expiration of the limitation period, because no relevant damage had been suffered until that time. 16. Whether it be because the action was commenced within time or whether it be because the plaintiff was unaware of material facts, the defence under the Limitation Act fails. Damages 17. The plaintiff is, as noted, 75 years old. He has, and has had, an intercurrent bacterial infection which, seemingly, was first detected on 17 October 2002 by Dr Antic, to whom he was sent by the defendants. That disorder was a clinically significant infection and required notification to public health authorities. It is treatable, unlikely to affect others, at least those who are human, and causes symptoms of cough, phlegm and bleeding, which the plaintiff was then experiencing. Dr Antic, however, was not firmly of the view that the plaintiff suffered asbestosis. Despite submissions to the contrary from counsel for the defendants, he did not exclude it. When Dr Antic reported to the defendants for the second time he noted that lung function tests showed evidence of mild respiratory impairment. His report proceeded: The clinical examination and the CT scans show no definite evidence for lung disease such as emphysema, although there might some small air cysts on the CT scan of 11/9/02 or interstitial lung disease such as pulmonary asbestosis. 18. It is apparent to me that the word "be" was omitted between the words "there" and "might" so that, at the very least, Dr Antic was conceding the possibility of asbestosis. He did not exclude it. 19. In my view it is significant that Professor Alpers found radiological evidence of pulmonary fibrosis, detected respiratory crackles, and upon lung function testing discerned a pattern consistent with asbestosis. He recorded the plaintiff's asbestos exposure. 20. As is well known, there are five clinical criteria upon any three of which a diagnosis of asbestosis might safely be made. I have referred to four noted by Professor Alpers. The remaining one of the five is finger clubbing. There is no evidence of finger clubbing in the plaintiff, but his case satisfies four of the five clinical criteria. I am satisfied he has asbestosis and asbestos related pleural disease. 21. I am of the view that such diseases as the plaintiff does have are mild. It is in the nature of asbestosis that it does progress, but in assessing the damages appropriate to compensate the plaintiff for the discomfort and pain he has endured in the past and will endure into the future it is proper, indeed obligatory, to consider the ways in which his life has been and will be affected by his asbestos diseases. It is appropriate also to consider the effect of the bacterial infection upon his capacity and comfort as also the fact that he is 75 years old. 22. The plaintiff said he was an active man and engaged in a wide variety of activity and recreations. He finds much activity now difficult. I am prepared to accept that part of this difficulty is occasioned by his asbestos diseases, but I am persuaded also that more is caused by his age and by the intercurrent disorder. It is relevant to note, although he has no evidence of emphysema, that he has been a smoker and the effects of smoking upon the lungs cannot be ignored. The plaintiff does have both obstructive and restrictive disease. By reasons of asbestos exposure he is at risk of developing mesothelioma and that risk has been assessed by Professor Alpers as 5 per cent. He is at risk also of developing cancer. That risk initially was assessed by Professor Alpers as between 3 and 5 per cent and in a later report as 10 per cent. Whatever the risk be, it is small. 23. Various figures have been put to me by counsel concerning an amount appropriate to compensate the plaintiff for the pain, suffering and discomfort he has endured and is yet to endure and also to compensate him for the risk of developing mesothelioma or carcinoma. I think a sum appropriate to compensate the plaintiff for such matters is $60,000. 24. A 75 year old Australian male, according to the Australian life tables might be expected to live until age 85. The plaintiff would have had an ordinary life expectancy of 9.64 years. It is Dr Alpers' opinion that his life expectancy is five years. The plaintiff has therefore a life expectancy reduced by almost five years. I think a sum appropriate to compensate the plaintiff for the loss of expectation of life is $5,000. 25. Future medical care and assistance have been agreed by the parties at $25,000. Past out of pocket expenses have been agreed at $214.60. The plaintiff claims amounts for Griffiths v Kerkemeyer expenses and for replacement services. In all cases, but more so in a case such as this, it is difficult to determine even with probability what the future might hold. I think it appropriate to accept that at some stage the plaintiff is likely to require some care. How much of that care will be related to his asbestos diseases and how much to the intercurrent disease and the process of aging is difficult to determine. At best a broad brush approach can be taken. It is relevant to bear in mind also that though the plaintiff's condition will probably deteriorate, his impairment at the moment is mild. Doing the best I can to do justice between the parties I think it appropriate to allow the plaintiff the sum of $1,000 for replacement services and $5,000 for future Griffiths v Kerkemeyer expenses. 26. Thus the plaintiff is entitled to judgment made up as follows: General damages $60,000.00 Interest on past general damages $2,000.00 Loss of expectation of life $5,000.00 Future medical care $25,000.00 Replacement services $1,000.00 Future Griffiths v Kerkemeyer $5,000.00 Past out of pockets $214.60 Making a total of $98,214.60 27. I am not required to apportion liability to pay damages between the defendants and I have been informed by counsel that the verdict and judgment may be entered jointly and severally. 28. By consent par 14A of the statement of claim is amended by deleting the matter "Provisional damages pursuant to Section 11A of the Dust Diseases Tribunal Act, 1989 for the conditions of:- (i) Asbestos related pleural disease; (ii) Asbestosis" and substituting the word "Damages" and by deleting par 15. 29. There will be verdict for the plaintiff jointly and severally against each defendant and judgment in the sum of $98,214.60. Costs 30. The first defendant sought a special order for costs. The statement of claim filed by the plaintiff sought provisional damages pursuant to s 11A of the Dust Diseases Tribunal Act. In order to enable a full and proper argument to be advanced on the plaintiff's entitlement to claim provisional damages in respect of interstate torts the case was adjourned from Adelaide to Sydney. It was appropriate that counsel conduct such researches and prepare such arguments as suited the case. 31. On 29 January 2003 the plaintiff informed the defendants that the claim to provisional damages was abandoned. 32. In the intervening period, however, the defendants sought further opinion from Dr Antic and informed the plaintiff's solicitors that application would be made for leave to reopen and for further evidence to be taken from Dr Antic. On Monday last this case was in the interlocutory list for directions, at which time I was informed that an application today would be made to return to Adelaide for the purpose of taking Dr Antic's evidence. When the report of Dr Antic was served upon the plaintiff, the plaintiff sought further opinion from Professor Alpers. The defendants sought and were granted leave today to reopen their case and tendered the report of Dr Antic. Professor Alper's report also was placed into evidence today. 33. In those circumstances I am not disposed to make a special order for costs, either depriving the plaintiff of costs today or requiring him to pay the first defendant's costs. Whatever be the situation in relation to the claim for provisional damages, the fact is that the defendants sought leave to reopen and in fact tendered the further report of Dr Antic. In these circumstances I think it inappropriate that the plaintiff should bear the first defendant's costs. The defendants will pay the plaintiff's costs as agreed or assessed. 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.