Parker v Amaca Pty Ltd [2003] NSWDDT 5

Dust Diseases Tribunal of New South Wales

CITATION : Parker v Amaca Pty Ltd [2003] NSWDDT 5 PARTIES : Graham David Parker Amaca Pty Ltd MATTER NUMBER(S) : 328 of 2001 JUDGMENT OF: O'Meally P at 1 :- Dust diseases asbestosis CATCHWORDS: asbestos related plural disease anxiety and depression assessment of damages LEGISLATION CITED: CASES CITED: DATES OF HEARING: 20-21/3/03 & 3/4/03 EX TEMPORE JUDGMENT DATE : 04/03/2003

FOR PLAINTIFF: Mr J L Sharpe instructed by Turner Freeman LEGAL REPRESENTATIVES: FOR DEFENDANT: Mr G F Little, SC instructed by A O Ellison & Co

JUDGMENT:

1. This is a claim for damages by Graham David Parker against Amaca Pty Ltd (Amaca). The plaintiff claims damages for asbestosis and asbestos related pleural disease as a consequence of exposure when a self-employed carpenter, to asbestos manufactured by James Hardie & Coy Pty Ltd (James Hardie), in whose shoes Amaca now stands, and in the course of his earlier employment by James Hardie. 2. It is not in dispute that the plaintiff suffers the diseases alleged and is entitled to a verdict. The principal matter in issue between the parties is the extent to which conditions of anxiety and depression disable him and the extent to which general damages for those psychiatric conditions and the costs of care should be assessed. 3. The plaintiff was engaged in employment continuously until 1989 when, because of what seems to have been a misdiagnosed infarction, he ceased work. He was absent from work for a period of six months, but ceased employment altogether in October 1990. He suffers a number of unrelated medical conditions, some of which affect his respiratory capacity. He was a smoker and he has obstructive airways disease and emphysema. Response to bronchodilation suggests that there is an asthmatic component to his breathing difficulties. He suffers ischaemic heart disease and on two occasions has undergone angioplasty, the last of these occurring in 1997 and seemingly with good result. It has been agreed that the plaintiff has a respiratory disability objectively measured at between 30 and 40 per cent. Opinion of thoracic specialists is that 15 to 20 per cent of his respiratory disability is related to the asbestos diseases. It has been conceded by senior counsel for the defendant that 20 per cent of his respiratory disability is asbestos related. 4. I have before me a considerable amount of medical evidence in report form. Additionally, I have heard the oral evidence of thoracic physicians and psychiatrists. It seems to be the case that the first symptoms of respiratory disorder presented in 1998, though in 1994, when the plaintiff was seen by Dr Nikitins, radiology revealed the presence of pleural plaques and patchy pulmonary fibrosis. At that stage his lung function tests were good and it was Dr Nikitin's view that he "would not get into respiratory trouble". 5. In 1998 the plaintiff was referred to Dr Bryant, a specialist physician. Lung function testing conducted for the purposes of that consultation revealed mild small airways obstruction and the examination led Dr Bryant to the view that the plaintiff had cigarette associated mild bronchitis, emphysema and small airways obstruction. 6. It is relevant to observe that the plaintiff is a person who has been subject to a number of stressors in his lifetime. It seems to be the case that he has a vulnerable personality and, like other members of his family, is prone to anxiety. Whilst in hospital for angioplasty a patient in the same room had what appears to have been a cardiac arrest. Attempts to revive the patient made in the plaintiff's presence, were dramatic but unsuccessful and the patient died. The plaintiff himself was quite distressed by that event. He was also quite distressed that cardiac disease led to his ceasing employment altogether. His children have had relationship problems which have also acted as stressors to the plaintiff. His son's marriage has broken up after a period of something in the order of four years' difficulties and his daughter was alienated from her parents. 7. In evidence the plaintiff attributed the alienated relationship with his daughter to the fact that whilst employed by the defendant she and her brother played on asbestos material brought home in a trailer from the defendant's premises. His daughter accused him of exposing her to the risk of an asbestos disease. Because it will be relevant to refer to this again later I should observe also that the plaintiff's wife spoke of an alienation only between herself and the daughter and gave as the reason that the daughter accused her of being a bad mother. 8. It is also the case that the plaintiff's father died of prostate cancer and it was revealed at post mortem examination that the plaintiff's father suffered asbestosis. In evidence the plaintiff described his father's death and made particular reference to the difficulty in breathing his father experienced before he succumbed. He has a fear, not surprisingly, that he too may experience a similar fate. 9. On three occasions the plaintiff has attempted suicide. The first was in October 2000, the second in January 2001 and the third was in June 2002. On these occasions the plaintiff has either overdosed on medication prescribed for his cardiac condition or consumed garden fertiliser. He was hospitalised and received psychiatric treatment. He is now undergoing regular psychological counselling and psychiatric consultation. 10. Maria Chornley is the senior clinical psychologist at the Lyell McEwen Health Service and is charged with his treatment. She first saw the plaintiff on 15 January 2000 when he was diagnosed as suffering major depression, a generalised anxiety disorder with panic attacks and anxiety over his health. The stressors to which I have referred were noted and recorded by Ms Chornley and she recorded also, as is the case, that whilst employed by the defendant the plaintiff fell into a bin of loose asbestos fibre and escaped by climbing a ladder. It is the case that the plaintiff now has nightmares in which he finds himself in a container of asbestos but unable by reason of the absence of ladders to extricate himself. 11. Ms Chornley in her report of 22 October 2001 noted that during sessions it was apparent that the plaintiff experienced discomfort in the chest, which in turn increased his worry about his physical health. He also worried about the condition of his heart and the hospitalisation for angina and the death of the fellow patient. She thought that these concerns were adding to his feelings of insecurity, anxiety and despondency. 12. In a report of 5 March 2003 Ms Chornley expressed the view that the plaintiff's mental state had improved since he began treatment. He was better able to manage symptoms of panic and was able to assist his wife with shopping and paying bills. This was something that he could not do six or twelve months previously. He was, however, worried about the outcome of this case and she observed that the plaintiff's levels of anxiety had increased in direct response to the requirement to see numerous specialists. She thought it possible, once this case had been resolved, that there would be a gradual decrease in his need for therapy. 13. The plaintiff was seen also by Dr KoKo Aung, a psychiatric registrar at the Lyell McEwen Health Division. The first consultation occurred on 13 November 2001. Dr Aung recorded the history, much of which I have already recited. In particular, he recorded that in 1987 the plaintiff was hospitalised for cardiac pain and was diagnosed as suffering ischaemic heart disease. He recorded that the plaintiff became unwell with multiple cardiopulmonary symptoms, bilateral lower chest pain, breathlessness and was coughing blood for a few years. He recorded also that the plaintiff's wife received a disability support pension by reason of the plaintiff's coronary heart disease and that that pension began to be paid in 1993. Dr Aung recorded the plaintiff's asbestos diseases, his ischaemic heart disease, the fact of the angioplasty and nissan fundoplication application, which is a disorder unknown to me. He recorded also that the plaintiff had undergone bilateral inguinal hernia repair. He did not note, at least at that stage, that the plaintiff had also undergone prostatic surgery. 14. Speaking of those disorders, which he recorded, Dr Aung said that the impact of these illnesses was significant to the plaintiff's life; he lost his self confidence, became a short tempered person and his self care became poor. His sex life became non existent because of a number of factors, including anxiety, fear of having a heart attack and side effects from anti-depressant medication. He became overwhelmed with severe health anxiety which was linked to the development of major depression. 15. Dr Aung, when asked for his opinion, said that the link between the plaintiff's psychiatric illness and previous exposure to asbestos or subsequent occupational lung disease was complex. The causal relationship between the plaintiff's numerous medical problems and his panic disorder or depression also was multi-faceted and multi-dimensional rather than linear. He thought, however, that the final development of the panic disorder and major depressive disorder could be understood as the secondary phenomenon or psychiatric complications of the medical illnesses. For the future Dr Aung thought the prognosis of his psychiatric disorders to be dependent upon the course and prognosis of his medical illnesses. 16. Dr Aung saw the plaintiff for a second consultation on 17 March this year. He then thought the prognosis for the plaintiff's panic disorder was positive. It seemed that there had been a significant clinical improvement and adherence to the treatment plan was excellent. Again, Dr Aung expressed the view that his psychiatric condition depended upon his medical condition and upon the degree of psycho-social stressors. 17. Dr C J Branson is a psychiatrist specialising in forensic psychiatry. He was qualified for the purposes of this case. His view was that the plaintiff had a depressive order and panic disorder with agoraphobia, the predominant causes of which were the diagnosis of asbestosis and his fears for the future. Dr Branson recorded that there had been some improvement in the plaintiff's psychiatric condition. He thought, however, that the need for sessions with a psychologist would best be opined by Ms Chornley. As to the need for medication, he found it difficult to offer an opinion. 18. Dr R J Craig is a cardiologist who first saw the plaintiff on Australia Day 1988. He noted that there were no ECG changes. This would seem to contradict the plaintiff's belief that he had had a myocardial infarction. The plaintiff last saw Dr Craig in consultation on 27 June 2001. Then there was a symptomatic settling noted and only minor episodes of left chest pain were complained of. He recorded that there was a lot of stress in the plaintiff's life. Dr Craig also was of the view that the cause of the plaintiff's shortness of breath was multi-factorial, but there was a secondary effect of anxiety depression on his emotional state. It was Dr Craig's experience that many patients with known significant heart disease become short of breath when given the task of exercise. He did find it very hard to estimate the importance of that component in the plaintiff's case. He observed that the plaintiff does have triple vessel coronary disease and the management of his risk factors has been difficult. He was of the view that there would be some effect on the plaintiff's long term prognosis by reason of cardiac disease. 19. Dr D D Kutlaca is a psychiatrist who was qualified by the defendant. It seems that there was a misunderstanding between the plaintiff and Dr Kutlaca on the cause of his father's death, and I do not mean to suggest that in this respect the plaintiff was being deceitful. It seems that Dr Kutlaca's first expressed view that the plaintiff's psychiatric condition was in large measure related to his asbestos disease was based upon the understanding that the plaintiff's father had died of an asbestos related cancer. The fact is, as I have recorded, that the plaintiff's father died of prostatic cancer, but the presence of asbestosis was revealed post mortem. Following his consultation, Dr Kutlaca thought that the plaintiff was suffering a major depressive disorder which was chronic and was in moderate remission. He thought that a component of the depressive morbidity derived from the plaintiff's cardiac status and, because there had been stable heart function for the three years preceding consultation, the majority of the other stressors remained secondary to his lung condition. He was also of the view that this case, if only to a modest extent, was preventing further recovery. 20. The doctor fairly and properly, if I may say so, did concede that if, contrary to his understanding, the plaintiff first became aware of his father's asbestosis after he had died, he could still have had a reaction to the fact of that knowledge; it was not fundamental to his opinion that the plaintiff attributed his father's death to asbestos related cancer. Nevertheless, when Dr Kutlaca gave evidence he did consider that the accuracy and the reliability of the plaintiff's complaints were significant in coming to a conclusion on the extent of the plaintiff's psychiatric disability. In this respect I consider it to be of some significance that the plaintiff attributed the alienation of his daughter's affection to accusations of exposing her to the risk of asbestos disease when that would seem not to be the case. 21. Dr H W Greville is currently the plaintiff's treating thoracic physician. His reports are in evidence and he gave oral evidence. Dr Greville noted that CT scanning confirmed asbestos related pleural disease and, to a lesser extent, parenchymal disease. The pleural disease I take it to be pleural plaques, which have been commented upon by others. Dr Greville thought that the plaintiff's disability in terms of pulmonary function related to asbestos exposure was mild. In the opinion of Dr Greville the plaintiff did, however, have significant disability related to the left chest pain, for which he was taking MS Contin. Here I think it relevant to observe that Dr Scroop, who is a specialist respiratory physician qualified by the defendant, thought that the pleural plaques were not causing chest pain. It would not be that parenchymal disease would cause such pain and in considering the cost of future medication it will be necessary to make some assessment of the need for medication consequent upon asbestos disease. Dr Greville in his first report thought it likely that there would be a mild decline in the plaintiff's lung function and disability over the years as a consequence of asbestosis. He noted that the plaintiff had significant co-morbidities and highlighted ischaemic heart disease. He thought there would be some reduction in life expectancy because of asbestos related conditions, but no estimate of that reduction was given. 22. When seen by Dr Greville on 19 March 2003 the plaintiff complained of some episodes of nocturnal shortness of breath which had responded to Ventolin. It was because of this response that Dr Greville thought there to be an asthmatic component to his respiratory difficulties. This, of course, would be unrelated to any asbestos exposure or disease. Dr Greville noted that though there had been an increase in the plaintiff's symptoms, it was not clear whether they were all related to asbestos exposure. Dr Greville thought that the plaintiff would not need a great deal of further treatment or investigation. He thought it reasonable that he should see his general practitioner and respiratory physician once every year or two. A chest x-ray should be taken every one to two years and a CT scan every three or four years. Lung function testing, he thought, should be done annually. There was a possible need for oxygen in the future, though not before the expiration of 10 years. 23. As to pain management and counselling Dr Greville had some difficulty. This was because it was unclear in his view that all the plaintiff's pain was related to asbestos exposure. It was for that reason that Dr Greville found it very difficult to cost any future treatment. 24. Professor Alpers had no such difficulty. He was qualified for the purposes of this case, and in a report of 12 September 2002 he set out costs of what he considered to be those which would be incurred by the plaintiff. With all respect to Professor Alpers I think his proposals to be a little extravagant. His report is almost identical to reports that are regularly tendered and the estimate in this case seems to be not particularly directed towards the plaintiff. Of course, it is a difficult task for anyone to assess what the future may hold in any given case and I intend no criticism of Professor Alpers. No doubt he was doing to the best of his ability what he was asked to do, but in the end it becomes a matter for me to determine what should be allowed. 25. In the end I am persuaded to this view; the plaintiff does have an asbestos related mild respiratory impairment, which is in the order of 20 per cent. He does have a condition of anxiety and depression, some part of which is the consequence of his asbestos diseases and his asbestos exposure. I am unable to accept that his disability as a consequence of anxiety and depression is as great as has been argued. The fact is that the plaintiff, happily, is responding to treatment. The likelihood is that, with continued treatment and the conclusion of this case, his psychiatric condition will improve. Moreover, at least half of the factors contributing to his psychiatric condition in my view are unrelated to asbestos exposure or diseases. The stressors in his life, apart from those related to the consequences of asbestos exposure, have been rather disturbing, and would be to anyone. 26. In assessing a sum appropriate for general damages I must take into account the risk of his developing bronchogenic carcinoma or mesothelioma. No assessment in percentage terms has been made of the likelihood of that risk coming home. It is the case, as said by Dr Greville, that there is the prospect of a reduced life expectancy. On this matter no estimate has been given. According to the Australian life tables, 16 years is the life expectancy of an Australian male of the plaintiff's age. I think in the circumstances it would be appropriate in assessing general damages for the past consequences of the plaintiff's asbestos diseases, and their affect upon him in the future, and to compensate him for the risks of developing carcinoma or mesothelioma, and for loss of expectation of life, to include them as components in general damages. 27. Doing the best I can to do justice between the parties I believe an appropriate amount for general damages is $75,000 of which one quarter should be allocated to the past, beginning on 1 June 2002. 28. It has been agreed that HIC and gap payments amount to $5,000. These, of course, would include amounts referrable to disorders other than the plaintiff's asbestos related diseases and the consequence of asbestos exposure. I think it therefore appropriate to allow an amount of $2,500. 29. It has been agreed that the sum of $423.20 should be allowed for past medication. 30. For future treatment for asbestos related respiratory treatment I think it appropriate, contrary to what Dr Greville said, to allow the costs of an annual x-ray and a biennial CT scan. I think it appropriate to allow GP consultations on a monthly basis and specialist consultations on a biannual basis. Beside the costs of consultation and radiology should be allowed an amount for future spirometry, for palliative care, for oxygen administration and for treatment of infection and for the possibility of hospital admissions. In respect of the latter some concessions have been made by the defendant. The evidence upon which to assess these items with precision, not surprisingly, is not available, but for future medical consultations, examinations, treatment and the provision of oxygen together with palliative care and hospital admissions for infection and treatment the sums of $8,483 for consultation, $2,500 for radiology, $2,175 for spirometry, $1,200 for palliative care, $500 for oxygen and $1,000 for the possibility of treatment of infection and hospital admission should be allowed. These sums represent amounts which have been discounted by 15 per cent for vicissitudes when added together total $15,858. 31. I think it appropriate to allow fortnightly consultations with a psychologist for a period of 12 months and thereafter monthly consultations for a further period of 12 months. The indications seem to be that with future treatment and the conclusion of this case the need for such consultations will no longer exist. In respect of psychiatric consultation I think it appropriate to allow bi-monthly consultations for a period of 12 months and then four monthly consultation for a period of 14 ears. The sum should, of course, be discounted for vicissitudes and one should take into account that not all consultations will be required because of asbestos diseases and exposure. I have been informed that the sum of $6,333.05 would be the cost of psychological and psychiatric consultations for the periods and at the frequency recited when discounted by 15 per cent. However, the defendant, fairly and honourably if I may say so, concedes a liability to pay $5,000 and for such care for the future I allow that amount. 32. In respect of the cost of future medications for the plaintiff's psychiatric and psychological condition a claim of $10,516.71 is made. The defendant concedes that it should pay half of that amount by reason of the contribution made by non-compensable factors. Accepting this, I allow $5,258.36. 33. In respect of replacement services a claim of $5,000 is made. On the same basis as previously the defendant concedes a liability to pay $2,500. Added to this should be the sum of $175 being a rounded off amount to allow for past replacement services. Thus, replacement services are allowed at $2,675. 34. In respect of past Griffiths v Kerkemeyer expenses a sum of $184,916.20 is claimed. This claim is based upon material appearing in the report of Anne Morgan. With all respect to the author of the report my view is that the amounts there claimed are extravagant, as indeed they are also for the future. It is always difficult to be precise in considering Griffiths v Kerkemeyer expenses and at best only a broad brush approach can be taken. I accept that the plaintiff is unable now to mow his lawn and attend to some of the handyman tasks which previously he carried out about his home. I accept that it has been necessary for his wife to take him to medical appointments, but not all of these result from his asbestos diseases or exposure. Doing the best I can, I think it appropriate to allow an amount for 3 hours from say 1 June 2000 to the present and because it involves a variety of work I would be disposed to allow an hourly rate of $25. 35. For the future I would allow $25 per hour for 3 hours per week for 10 years, for 5 hours per week for two years, for 8 hours per week for two years and for 10 hours per week for two years. The total should be discounted by 15 per cent. 36. Thus the plaintiff is entitled to damages made up as follows: General damages $75,000.00 Interest on past general damages $1,312.50 HIC and gap payments $2,500.00 Past medical expenses $423.20 Future medical and associated expenses $15,858.00 Psychiatric and psychological consultation $5,000.00 Psychiatric medication $5,258.36 Past and future replacement services $2,675.00 Past Griffiths v Kerkemeyer expenses $12,750 . 00 Interest on past Griffiths v Kerkemeyer expenses $2,231.25 Future Griffiths v Kerkemeyer expenses $63,103.61 Making a total of $186,111.92 37. The defendant has applied for costs on the basis that on 19 March last it sent a Calderbank letter to the plaintiff offering to settle the case for $200,000 plus costs. However, the offer was open for acceptance until 11am central summer time on 20 March. In Smith v South Australian Brewing Company Pty Ltd and Ors [2002] NSWDDT 14, I said an offer must be open for a reasonable period if its rejection was to be used to invoke a Calderbank order. I do not regard as reasonable an offer which is open for 24 hours. This offer was open for less than 24 hours. 38. The order I propose is that the defendant pays the plaintiff's costs as agreed or assessed. 39. There will be verdict and judgment for the plaintiff for $186,112.92. The defendant will pay the plaintiff's costs as agreed or assessed.