Richardson v Commonwealth of Australia [2002] NSWDDT 11

Dust Diseases Tribunal of New South Wales

CITATION : Richardson v Commonwealth of Australia [2002] NSWDDT 11 PARTIES : James Richardson Commonwealth of Australia MATTER NUMBER(S) : 144 of 2002 JUDGMENT OF: Maguire J at 1 :- Employer and Employee Asbestos exposure CATCHWORDS: Diagnosis Damages Assessment of damages LEGISLATION CITED: CASES CITED: DATES OF HEARING: 15/07/02, 15/08/02 EX TEMPORE JUDGMENT DATE : 08/16/2002

FOR PLAINTIFF: Mr D R J Toomey instructed by Turner Freeman LEGAL REPRESENTATIVES: FOR DEFENDANT: Mr T J Morahan instructed by Australian Government Solicitor

JUDGMENT: 1. The plaintiff was born on 10 September 1912 at Kyogle It follows that he is now rising 90. In 1939 he moved to Sydney after various employments and between October 1941 and April 1945 he served as a gunner in the Australian Army on active service. 2. The evidence shows that from 1946 onwards the plaintiff was exposed to the inhalation of asbestos dust and fibre. This happened in the course of his work in various employments and otherwise. In particular he was exposed between 1958 and 1964 by the defendant, the Commonwealth of Australia, to such exposure at its Garden Island Navy Base. 3. At the commencement of the trial exposure to asbestos by the defendant at Garden Island was in issue. However, upon the resumption of the trial yesterday, that issue had disappeared. Now the parties ask me to determine only the issue of diagnosis and (if appropriate) the question of damages. 4. It is not contested that the plaintiff first noticed himself to be breathless in June 2001. I first noticed that I was becoming quite breathless in about June 2001. I went to see my general practitioner Dr Mowbray at the Medical Centre at Peakhurst. She arranged for a blood test. Dr Mowbray referred me to a specialist at St George Private Hospital, Dr J McCauley. He arranged for a CT scan and also a fine needle biopsy. 5. The plaintiff did not actually see Dr McCauley until February of this year. At first the doctor started to investigate the plaintiff as a cardiac patient but he did arrange a chest x-ray which was conducted on 7 February this year. There is a loculated pleural effusion on the right side with evidence of contraction of the right lower lobe. There is also a pleural based opacity in the lateral aspect of the left chest, the heart is enlarged. 6. In mid February the plaintiff was admitted to the St George Private Hospital. He was seen there by Dr McCauley on 18 February. Several things are of interest here, firstly, the echo suggests moderate to severe calcified aortic stenosis with a mildly dilated and severely dysfunctional left ventricle. It may well be left ventricular dysfunction relates to the aortic stenosis per se. As well there is a loculated pleural effusion on the right with evidence of contraction at the right lower lobe and there is also a pleural based opacity in the lateral aspect of the left chest. Clinically he has no peripheral signs of cardiac failure. His blood pressure is 120/80 and his atrial fibrillation ventricular rate 74 per minute. The issue is whether his right basal effusion relates to cardiac failure or as a separate entity such as infection or neoplasia. Arrangements are in hand for him to have the right pleural effusion tapped after ceasing Warfarin. He will also have a chest and abdominal CT. I have given a short course of diuretics in the form of Frusemide 40 milligrams per day and Span-K two per day as occasionally left-sided heart failure may present with predominantly a right pleural effusion although this is generally not loculated. 7. The CT scan was had three days later: Thoraco abdominal CT . There are considerable bilateral calcified pleural plaques and there is a right-sided pleural effusion from which some 50 millilitres of blood stained fluid was aspirated and sent to Hanley Moir for analysis. In the subpleural region of the right lower lobe posteriorly there is a mass measuring some 5 by 3 by 3 centimetres in cross section. This is probably an old area of discoid atelectasis rather than a pulmonary mass as arteries can be seen coursing through the lesion in a normal fashion. Cyst formation can be seen in both kidneys, the largest on the right side is about 5 centimetres in cross section and has some benign calcification in its margin. 8. Three matters arise in my mind: one, the plaques corroborate exposure to asbestos; two, the mass was not seen by Dr Burns when he reviewed the x-ray pictures; three, the diagnosis of discoid atelectasis is inconsistent with any cancer in the lung proper. 9. On 4 May 2002 Dr McCauley referred the plaintiff on to Dr Moses, who is a thoracic physician at Kogarah. His letter of reference reads in part as follows: I wondered whether we are dealing with mesothelioma or other form of neoplasia or possibly TB given that one of his brothers had the disease as a young man. 10. The plaintiff was examined by Dr Moses the following day. On that same day a biopsy was had and upon pathological testing no definite malignant cells were identified. On the same day there was a pleural tap and the results were reported as showing no malignant cells. On the next day the plaintiff saw Dr Moses and on the same day as that consultation he had a urine test and that was reported as showing no malignant cells. On the following day, 7 March, Dr Moses reported to Dr McCauley in part as follows: I have arranged for Mr Richardson's admission to St George Hospital and insertion of an intercostal catheter and subsequent talc pleurodesis. Given the lymphocytic nature of the effusion and the normal flow cytology I have also organised a mantoux. However, I think the most likely diagnosis is a neoplastic one such as mesothelioma. 11. As I understand it the Mantoux test is designed to identify the presence of tuberculosis. There is no further evidence about this test in relation to the plaintiff. I think it reasonable to infer that the test was conducted and proved to be negative. 12. Dr Moses continued to see the plaintiff from time to time and on 27 March he reported to Dr Mowbray in part as follows: Unfortunately the pleuro cath blocked before talc pleurodesis could be performed but review of his comparative chest x-ray today shows that the effusion, although still present is certainly not large, besides it is not causing him symptoms. His arthritic knees have improved since the reintroduction of Celebrex. I have recommended a comparative chest x-ray in a month or sooner if he became more short of breath. If the infusion does increase in size then we could readmit for the talc pleurodesis. 13. A few days later Dr Moses reported separately to the solicitors for the plaintiff. He was still canvassing the possibility of mesothelioma. 14. On 9 April 2001 Dr Burns, an eminent thoracic physician practising at Darlinghurst examined the plaintiff at the plaintiff's home: Thank you for asking me to see Mr Richardson, aged 89 years, whom I visited at his home on 9 April 2002. I am a thoracic specialist with 30 years experience and several years subspecialising in dust disease work. The doctor in his report sets out the history and then continues: Examination: On examination he was sitting in a chair dressed but looked thin. His oxygen saturation level was normal at 97 per cent. There was some diminished breath sounds over his right chest particularly inferiorly. There had been little reaccumulation of fluid I would think. X-rays: There was a plain chest x-ray available which showed bilateral pleural plaques. There was a CT scan from 21 February 2002 which showed extensive bilateral calcified pleural plaques. There was a right pleural effusion beneath which there was extensive pleural thickening. There were no prone films included but I could not see any changes indicative of asbestosis. Comment: It seems likely that Mr Richardson has a malignant pleural effusion. I cannot think of any other cause for the effusion to occur and it has recurred a bit now. That indicates to me that an active disease process is going on. His weight loss and wasting is consistent with the malignant process. On the balance of probabilities it is likely that he has a pleural mesothelioma. He has had a lot of asbestos exposure over the years and on the balance of probabilities his work at the Cockatoo Island Dockyard between 1957 to 1963 contributed materially to this asbestos exposure which I believe was to cause his eventual mesothelioma. In my opinion a primary carcinoma of the lung involving the pleura is unlikely. There were no carcinoma like lesions in the lung and the x-rays and he has never smoked. 15. On 10 April 2002 Dr Jurgen Stahl, a pathologist, reported to Professor Henderson, who is the head of the Department of Anatomical Pathology at Flinders Medical Centre in South Australia. Dr Stahl himself is senior lecturer in anatomical pathology. His report reads in part as follows: The pleural fluid specimen comprises a dispersed population of lymphoid cells in a bloody background. Some histiocytes are also present and there are a number of very degenerate cells present exhibiting some possible atypia. These cells may represent mesothelial cells but the degree of degeneration is too great to allow a proper cytological assessment. The exact nature of these cells is also unclear. 16. Professor Henderson made his own report to those representing the plaintiff on the same day. Opinion diagnosis: In my opinion the pleural fluid cytology smears are non diagnostic and so too is the pleural biopsy. The biopsy comprises dense fibro caliginous in keeping with pleural fibrosis but with no clear evidence of asbestos related plaque formation. None of the histological criteria required for diagnosis of desmoplastic mesothelioma is evident. The fibrous tissue on one level contains a few small clusters of partially crust epithelioid cells that cannot be assessed further. Therefore, although the possibility that these cells are part of a mesothelioma cannot be discounted entirely there is clearly insufficient evidence for this diagnosis in the pleural biopsy. The pleural biopsy appears to represent a closed biopsy and the diagnostic yield of such biopsy in cases of suspected mesothelioma is quite low, much lower than the thoracoscopy guided or open pleural biopsies. In this respect pathological diagnosis of mesothelioma sometimes poses considerable difficulties often related to insufficiency of tissue in biopsies of this type for a clear diagnosis. The biopsy from Mr Richardson, although it does not allow a positive diagnosis of mesothelioma cannot definitively exclude that diagnosis. In the absence of other more adequate biopsy tissue it seems that the only way that the question of mesothelioma could be addressed is on clinical and radiological grounds taking into account the situation where the pleural biopsy has not shown any evidence of secondary carcinoma. Such clinical radiological assessment is a matter for the clinicians looking after Mr Richardson and I cannot contribute to that exercise. 17. On 19 April 2002 he had a further chest x-ray. It is reported in part as follows: Bilateral calcified pleural plaques can be seen and at the right lung base mainly posteriorly there is a pleural effusion that is somewhat loculated. 18. Having seen this x-ray report Dr Moses, on 22 April 2000, reported to the general practitioner in part as follows: Mr Richardson's chest x-ray shows some basal pleural fluid but it has not increased in size in the past month. This is good given that he did not undergo talc pleurodesis. 19. Dr Moses in the same report also refers to the possibility of mesothelioma. 20. On 10 May 2002 the plaintiff was examined by Dr Julian Lee, another thoracic physician, who was nominated for that purpose by those representing the defendant. Dr Lee reports in part as follows: The plaintiff stated that his weight has fallen by an estimated 6 kilograms during recent months. He remains breathless on simple activities but he is still able to drive his wife to the local shops. Further: Opinion: The clinical and radiological findings are consistent with the diagnosis of mesothelioma but histological confirmation has not been received. 21. On 27 May 2002 Dr Andrew Gall, a pathologist at Double Bay reported to the defendant in part as follows: Conclusion: No histological or cytological evidence of malignancy is present in the above described pathology material submitted for my examination. The absence of malignancy in a particular biopsy does not exclude the present of a malignant neoplasm in the patient, it may merely mean that an unsuitable of tissue was selected for biopsy. I would be glad to examine any further tissue which may become available from this patient. 22. On 5 July 2002 the plaintiff was admitted to the St George Public Hospital. On 8 July Dr Burns reported further to the solicitors for the plaintiff and the only real importance of this report is that he deals with the cost of future care as estimated by himself. 23. On 10 July Dr Lee reported further to the solicitors for the Commonwealth. This report reads in part as follows: You have also requested that I express an opinion concerning a diagnosis of mesothelioma on the balance of probabilities. I am not prepared to accept the diagnosis of mesothelioma in the absence of histological confirmation. My reasons for adopting this policy include · The fact that mesothelioma is an invariably fatal malignancy. · The unnecessary distress inevitably associated with an incorrect diagnosis. · The need to distinguish between benign and malignant pleural disease. · The opportunity to establish a definitive diagnosis at autopsy. 24. On 14 July Dr Gall reported further to the Australian Government Solicitor in part as follows: In his opinion diagnosis section Professor Henderson makes the comment, `The biopsy from Mr Richardson although it does not allow positive diagnosis of mesothelioma cannot definitely exclude that diagnosis.' Professor Henderson's statement is correct, however, I would put a different emphasis to this issue. There is no pathological evidence that Mr Richardson suffers from mesothelioma, it is true that the biopsy does not exclude a diagnosis of mesothelioma but by the same token it does not exclude any other disease process either because it is completely non diagnostic. It is quite clear that Dr Gall is not excluding the possibility of mesothelioma. 25. The trial of the action commenced before me at the home of the plaintiff at Peakhurst on 15 July. It resumed at the court yesterday, 15 August. As of yesterday morning the state of the evidence was such that seven specialist medical practitioners, some of them pathologists, the others clinicians, had applied their minds separately to Mr Richardson's case. As I recited their reports six of them allow the possibility of his having mesothelioma or at least they do not exclude it. These are Dr McCauley, Dr Moses, Dr Stahl, Professor Henderson, Dr Lee and Dr Gall. Dr Michael Burns alone expressed a view supportive of the diagnosis of mesothelioma. Mr Toomey of counsel announced yesterday morning that he proposed to call Dr Burns to give sworn evidence on behalf of the plaintiff. Mr Morahan of counsel for the defendant announced that he may call Dr Lee to give sworn evidence. Yesterday afternoon I heard the sworn evidence of Dr Burns. Having cross-examined him, Mr Morahan announced that he would not be calling Dr Lee. The following is portion of the evidence-in-chief of Dr Burns: Question - Doctor, you have reached a conclusion in the earlier of your reports on clinical grounds that the plaintiff suffers from mesothelioma. Answer - Yes. Question - Will you set out the basis upon which you came to that conclusion from your clinical examination. Answer - Mr Richardson, who was I thought very ill when I saw him, he was wasted and weak, had developed a pleural effusion, it had been drained and at that stage had not recurred sufficiently for a further drainage to take place. In view of the fact that in my experience a great majority of moderate to large pleural effusions are malignant and that in addition to that in his case he was exhibiting the accompanying signs of advanced cancer, mainly weight loss, muscle wasting, I thought the chances are that he had a malignant pleural effusion, that is a pleural effusion due to a cancer. Then I had to ask myself what was the likely cause of that and the three possible causes of malignant pleural effusion would be a cancer of the lung or carcinoma of the lung involving the pleura, a mesothelioma, which is a malignant tumour arising from a pleura or secondary carcinoma from somewhere else in the body down to the lung and involving the pleura. Now, there was no evidence that I could find or I was given that there was a primary cancer somewhere else that had got to the chest. Against being a primary lung cancer was the fact that he had never smoked and lung cancer is a non smoker is very rare. However, an adenocarcinoma can occur they say with equal frequency in smokers and non smokers, that is a primary adenocarcinoma of the lung, although in fact the majority of the adenocarcinoma cases we see are all smokers, but in theory adenocarcinoma is a non smoking related cancer. This not a common cause of causing a short lived pleural effusion in my experience. The majority of adenocarcinomas associated with pleural effusion recur, the fluid recurs, and when it is drained it recurs again and when it is drained it recurs again. Further: In addition in my experience usually a carcinoma involving the pleura where any fluid is drained you can see a lump within the lung, either on the CT or on the x-ray, so there should be evidence of the cancer that is involving the pleura. Often with a mesothelioma you can see a mass of tissue as well, usually in the pleura, but there is one particular variety that we are coming across where a lot of fibrosis or scar tissue occurs and the tumour spreads up the pleura without causing an apparent lump to start with, attempted biopsy is difficult becasue all we get is scar tissue and it requires quite a good piece of biopsy material to make the diagnosis. Very often these scarring mesotheliomas once the fluid is drained don't cause more fluid reaccumulation, the tumour obliterates the pleural cavity self pleurodesis occurs and it just spreads up the pleura and gradually engulfs the lung. Futher: Question - I think you said earlier that with a primary carcinoma of the lung you would expect to see a mass on radiograph. Answer - I would expect to see it once the fluid had been drained away. Question - I want you to assume that a thoraco abdominal CT scan was performed on 21 February 2002. Did you have that radiographic available to you when you reached your conclusion expressed in your earlier report. Answer - Was that the one 21 February 2002? Question - Yes, Answer - Yes, I did have. Further: In my notes I do not note that I could see any lumps within the lung substance. Question - Have I drawn your attention shortly before you came into court to the report made by Dr Bryant, Dr C J Bryant in relation to that film. Answer - Yes. Question - Do you have a copy of that report with you. Answer- Yes, it is the report of the CT. He says there is a mass, like a mass measuring so many centimetres in cross section in the right lower lobe, and he said it is probably an old area of discoid atelectasis. That means a rounded area of old lung collapse secondary to some sort of infection in the past. His Honour: Question - Do I understand you to say, doctor, that having yourself seen the picture you did not see that. Answer - I didn't notice that, no. Further: Question - I want you to assume that since the time you examined the plaintiff in April of this year there has been progressive weight loss and progressive lassitude and that the plaintiff's appetite has reduced quite substantially. Does that assist you in coming to a view about the malignancy or otherwise of his condition. Answer - If he had a malignant condition when I saw him in April then I would have expected as the condition would often be treated that his overall health would deteriorate progressively and I'd be surprised if it didn't whereas if it had been just pneumonia with some fluid and he had recovered I would have thought his health should have recovered quite a lot in that time, so I think the deterioration that you tell me about is consistent with a malignant process. 26. Dr Burns was cross-examined. He was invited to consider tuberculosis. He effectively excluded it and gave cogent clinical reasons for his view. He was also asked about the mass seen by Dr Bryant on the CT scan but not seen by himself. As I understand his evidence Dr Burns, accepting what was seen was discoid atelectasis as reported, has himself excluded the possibility of a malignant condition in the lung proper as distinct from the pleura, which is the lining of the lung. It also excludes a secondary malignancy. In the course of cross-examination Dr Burns also canvassed a number of other alternative diagnosis, these were pneumonia, trauma and heart failure. Dr Burns dealt with each of these rejecting them all for reasons given in each case. Mr Morahan suggested no other alternatives than those canvassed in the course of the cross-examination and which I have recited. 27. Clearly the plaintiff is very sick, presenting a picture typical of a man dying of a malignant condition. I have seen him myself and I have seen more than a hundred others in a similar state. He has had significant exposure to inhalation of asbestos; that emerges from his own evidence and is powerfully corroborated by radiological findings. All seven of the doctors who have at least canvassed the possibility of mesothelioma. Indeed Dr Moses, the treating thoracic physician who has seen the plaintiff many times, has expressed the view that the most likely diagnosis is a neoplastic one such as mesothelioma. 28. The thoracic physician qualified by the defendant, Dr Julian Lee, whilst accepting the possibility of mesothelioma is not prepared to accept such diagnosis in the absence of histological confirmation. He refers to his attitude as being a policy. I find that a strange word to apply to the exercise of clinical judgment. Dr Lee expresses four reasons for his reluctance, I have already set them out verbatim. The first one goes nowhere. It is 14 months since the plaintiff's breathlessness emerged. His survival thus far is within the range of life expectation to be found in cases of mesothelioma. I base that upon my own experience in this Tribunal. 29. Dr Lee's second reason is not persuasive. For a man clearly dying on the short term one diagnosis is no worse than another from the point of view of his own psychological well being. 30. His third reason puzzles me. Nowhere else does Dr Lee canvas, describe or otherwise deal with the possibility of a benign pleural disease but he raises it simply in the way that I have set out. The doctor's fourth reason seems to me to deny the whole role of the clinician. If every clinician deferred to the angel of death and waited upon those conducting an autopsy to make the diagnosis for him the practice of clinical medicine would have ceased to exist. 31. Dr Lee's expressed willingness to elaborate was denied to him when the decision was made by counsel for the Commonwealth not to expose the doctor to cross-examination. No doubt that decision was made upon a judgment made by counsel that exposure of Dr Lee to cross-examine would not advance the defendant's case. 32. Having carefully examined all the evidence I am comfortably satisfied that the plaintiff is indeed suffering from mesothelioma which will kill him in the short term. Accordingly there will be judgment for the plaintiff against the defendant. 33. That brings me to damages. The prospect facing Mr Richardson is a cruel one indeed. He is suffering from a life-terminating disease that will bring him to his end in the most painful fashion. His prospects have been described by me and other judges many times. Doing the best I can I think it fair to award the sum of $160,000 general damages. Interest on half that amount for the past at 5 per cent, (half the mean rate prescribed since June 2000) amounts to $4,667. 34. Mr Richardson, at his advanced age and with his medical history has a reduced expectation of life quite apart from the threat posed by his mesothelioma. I think it fair to award the sum of $5,000 for loss of expectation of life. 35. The only other head of damages advanced is the cost of future care. In his report of 8 July 2002 Dr Burns deals with the cost of future care in the context of his views about life expectancy: When I saw Mr Richardson for you on 9 April 2002 I was convinced that he had a malignant pleural lesion. I thought it was more likely to be a mesothelioma than a carcinoma. A biopsy would have been unrealistic in the situation of his age and general condition as it would not affect his treatment, in my opinion. I said in that report that I thought he would have no longer than 12 months to live but his survival time would be more likely to be three to six months. 36. He then proceeds to set out item by item the probable costs for a future lifespan for three months. This totals $22,500. 37. I shall deal only with the bottom line, a course of action that I floated during argument and about which neither counsel complained. I propose to reduce the doctor's figure by one third because one of his foreshadowed three months has already elapsed. For future treatment I allow the sum of $15,000. 38. There will be judgment for the plaintiff against the defendant in the sum of $184,667. 39. I order the defendant to pay the plaintiff's costs.