Keith Bevan v Amaca Pty Ltd [2001] NSWDDT 8

Dust Diseases Tribunal of New South Wales

CITATION : Keith Bevan v Amaca Pty Ltd [2001] NSWDDT 8 PARTIES : Keith Bevan Amaca Pty Ltd MATTER NUMBER(S) : 254 of 2001 JUDGMENT OF: Curtis J at 1 CATCHWORDS: Damages :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 10th October 2001, 11th October 2001 DATE OF JUDGMENT: 10/24/2001

FOR PLAINTIFF: Mr J Sharpe instructed by Turner Freeman LEGAL REPRESENTATIVES: FOR DEFENDANT Mr J Bartos instructed by Phillips Fox

JUDGMENT:

LIABILITY 1. Between 1956 and 1964 the plaintiff Keith Bevan was employed by Gamblings Carriers in Adelaide as a truck driver. While so employed he carted raw asbestos fibre from the wharves at Port Adelaide to the defendant's asbestos cement works at Largs Bay and also carted asbestos cement products from those premises to customers of the defendant in the Adelaide area and also to Port Adelaide for shipping. 2. In the course of this work the plaintiff inhaled asbestos dust and fibre which has caused him to contract the disease of asbestosis. This disease was in 1956 a foreseeable result of the very dusty conditions in which the plaintiff laboured in loading and unloading the defendant's asbestos materials and products. The defendant owed a duty of care to the plaintiff and could and should have taken reasonable steps to prevent his injuries by warnings addressed to him; by suppression of dust; and by provision to him of a suitable respirator to prevent inhalation of asbestos fibre. The plaintiff is entitled to a verdict. DAMAGES 3. The plaintiff was born on 8 August 1933 and is now 68 years old. He has been married to his wife Gwendoline for 50 years and has two children and two grandchildren. Prior to the onset of symptoms caused by his asbestos related disease he was in receipt of a disability support pension having suffered a serious back injury in 1966 which required major surgery by way of an L3/L4 laminectomy in 1967. Although partially disabling, this back pain was controlled by Panadeine Forte tablets. The plaintiff also suffered from a condition of diabetes controlled by medication and from coronary heart disease. He had a heart attack in 1985 from which he recovered. 4. Despite his back pain, diabetes and heart disease the plaintiff remained an active man with an optimistic nature. In 2000 he sold the house in which he had resided since 1967 and purchased a four wheel drive vehicle and a caravan intending to occupy the next three years travelling around Australia with his wife. 5. In 1985 the plaintiff began to experience shortness of breath. In retrospect it is difficult to determine whether this breathlessness was related to his cardiac condition or the onset of his asbestos related disease. By 1995 this breathlessness had increased and he developed a cough. The symptoms by this time were certainly related to the onset of asbestosis. In 1998 the plaintiff was referred by his general practitioner for a CT scan at Wakefield Hospital and his pulmonary fibrosis was diagnosed. 6. In 1999 the plaintiff suffered further coughing fits and severe shortness of breath and he was referred to a respiratory physician, Dr Evan Tsirgiotis at Queen Elizabeth Hospital in 2000. His shortness of breath continued to worsen. In March 2001 he had a bad turn in the grounds of the caravan park where he then lived, when he could not get his breath. He was thereupon admitted to Queen Elizabeth Hospital under the care of Professor Ruffin. It was Dr Ruffin who first told the plaintiff that the condition from which he suffered was asbestosis. The plaintiff remained in Queen Elizabeth Hospital as an in-patient for about five days, although soon after his discharge he was readmitted for a bronchoscope which he found very painful. 7. On 18 May 2001 following another attack of acute shortness of breath the applicant was transported by ambulance to Lyell McEwin Hospital where he was an in-patient for 17 days. Whilst in hospital he was delirious and confused. He could not lie flat in a hospital bed and spent the whole time on a reclining chair. 8. Since his discharge from the Lyell McEwin Hospital the plaintiff has required constant administration of oxygen. He cannot go anywhere without taking with him his oxygen tank. He cannot lie flat in bed and uses nine pillows to prop himself up. He can only walk two or three metres without losing his breath. He has great difficulty living in his caravan. The oxygen concentrator which he requires is noisy and generates heat in the van. 9. The plaintiff's main physical problems are shortness of breath, chest pain and cough. The chest pain is related to his coughing - when he coughs he sometimes brings up blood. He sleeps for about three hours before he wakes up coughing. Despite the use of sleeping tablets he is constantly tired as a result of lack of sleep. His appetite is reduced and his sexual relations with his wife have ceased. 10. Since August 2000 the plaintiff has required a large amount of personal care provided by his wife and his daughter Deborah. He is not able to do anything for himself. He has difficulty urinating because of breathlessness and such effort brings on severe attacks of coughing. Since March 2001 he has needed full-time care and assistance. His wife helps him dress, shower and toilet. He is unable to get to the amenities block in the caravan park where he lives and washes himself in the caravan with the assistance of his wife. He uses a portable lavatory. 11. The plaintiff has been very moody since his condition deteriorated and he finds it difficult to rely completely on the care of others having previously been a proud and independent man. He says, and I accept, that he is extremely frustrated and angry. He says at one stage following his last discharge from hospital he felt suicidal, but resolved to continue fighting his disease because of his consideration for his family. He says that when he has his coughing fits he feels he is going to choke because he cannot get his breath back. When he coughs, he says, he has to: Fight through a pain barrier, you know, even though the pain barrier is there I would try and block the pain barrier and think positive sooner than let the pain take over, but it has been very, very hard with this to do that. 12. He sleeps in a sitting up position which has caused bed sores upon his bottom. He says that he cannot lie down because the mucous builds up in his lungs and he has his doubts as to whether he will ever wake up again. With characteristic understatement, when asked how he feels about his condition the plaintiff replied "bloody terrible". 13. The plaintiff's wife gave evidence and says that the plaintiff now does not talk very much, because he cannot get his breath. When she sometimes attempts to speak with him he holds up his hand indicating that she should not. She says that when he has his coughing fits she tries to rub his back, tries to breathe for him but it does not make any difference. 14. The plaintiff's daughter described one of his coughing fits in these terms: I witnessed a coughing fit where he coughed and gagged for about 10 minutes trying to bring fluid up out of his lungs which to anybody who has healthy lungs it's a very easy process to cough it up. For dad it's like he's choking and gagging and trying to get his breath all in one hit and you feel so physically helpless to do anything and so distressed by the whole thing and the best that you can do is on the outer to try and remain calm and mentally try and talk him through it, but never knowing if that's the moment. 15. Professor Ruffin, a Professor of Medicine and the Head of the Department of Medicine at the Queen Elizabeth Hospital gave evidence in the plaintiff's case. He described how the fibrosis in the plaintiff's lungs is caused by chronic inflammation and how it is that the plaintiff's sensations of a crushing or vice like feeling in his chest are most likely caused by the fact that the lungs being fibrosed cannot expand. In Dr Ruffin's opinion the plaintiff's prognosis is poor and he has at the outside perhaps 18 months to live. The terminal event which will end the plaintiff's life may be suffocation, a lapse into unconsciousness and death because of failure of his lungs to get rid of the carbon dioxide, or perhaps a heart attack. In any event until the final event the applicant will be conscious of slow suffocation. 16. Dr Ruffin says that the cause of the plaintiff's chest pain is muscle strain and tendon strain related to coughing. It is the opinion of Dr Ruffin, consistent with my estimation of the plaintiff, that Mr Bevan is a person who is determined to keep going on and that he is "a fighter" and that is one of the things that bears upon his life expectancy. Dr Ruffin described Mr Bevan as trying to keep an optimistic view of his future and battling hard so that "perversely the braver he is the more he will suffer". It is the opinion of Dr Ruffin that the plaintiff will probably suffer a respiratory death and that if the terminal event is an accumulation of carbon dioxide that will not happen until a very, very late phase of the illness. Dr Ruffin described how the severe shortness of breath causes in a person so suffering, fear and panic. 17. There can scarcely be a beachgoer on the eastern seaboard of New South Wales who has not experienced moments of intense fear and panic when held breathless underwater by a particularly large wave. Such moments in the case of the plaintiff have been extended into days, weeks, months and years. 18. When asked to make a comparison between death from mesothelioma and asbestosis the doctor agreed with Mr Bartos for the respondent that a high level of pain is a major feature in mesothelioma not shared by persons dying from asbestosis. That concession does not to my mind detract from the horrors presently faced by this plaintiff at this time. 19. The plaintiff, suffering as he is, yet determined to cling to life, must feel the futility of his purpose with each attack of gasping breathlessness, never knowing, in his daughter's words "if that's the moment". He has experienced the agony of death not once but repeatedly. This will continue until life is drawn from him or he succumbs in despair. His suffering has the lineaments of the deepest suffering which is not pain but loss, sadness, futility and despair. 20. The defendant's tort has not merely caused this man physical pain, but has generated in him that mental anguish which he would almost certainly exchange for pain in return for the prolongation of his life. To address Mr Bevan's suffering in terms of an artificial calculus of x days times y units of pain is to miss the point. He suffers acutely not only because of pain but because he has been unjustly deprived of his life. 21. Notwithstanding the authority of Planet Fisheries Pty Ltd v La Rosa ((1968) 119 CLR 118) Mr Bartos for the defendant submits that I must "keep in mind the range of judgments for general damages in these types of case" and award an amount substantially less than those amounts that have been awarded in this Tribunal to persons dying of mesothelioma. 22. In response to this submission I observe firstly, that damages awarded by courts for loss of reputation, a facet of life untouched by pain and treasured less than life itself, may provide a surer guide to appropriate damages if the exercise were permitted. (See Carson v John Fairfax [1992-1993] 178 CLR 44). Second, that in comparison with cases of mesothelioma there are more points of similarity than difference. The salient features which call for substantial damages are the plaintiff's consciousness of deprivation of air and life. 23. Air and life are inextricably connected. Poets and lyricists have often made the connection, from the banality of Barry Gibb's: "All I need is the air that I breathe and to love you" to the measured metaphor of Gerard Manley Hopkins: This needful, never spent, And nursing element; My more than meat and drink, My meal at every wink; This air, which, by life's law, My lung must draw and draw . . . in his otherwise ecstatic poem "The Blessed Virgin Compared to the Air We Breathe". 24. I do not accept Mr Bartos' invitation to compare and contrast suffering. The general damages in this case are fixed by my considerations of the injury done to Mr Bevan. I include in that injury not only damages for 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" (per Brennan J in Carson (supra)). 25. I should emphasise that the damages in this respect are for present mental suffering. The damages awarded in a conventional sum for loss of expectation of life are awarded in compensation for the loss of future pleasures. 26. Future out of pocket expenses have been fixed by reasons expressed in argument. I do not think it necessary to elaborate upon those reasons. 27. I assess damages as follows: General damages $165,000.00 Interest on general damages (from 1 January 1996 on $100,000 at 2 per cent). $11,550.68 Loss of expectation of life $15,000.00 Out of pocket expenses Health Insurance Commission repayment $1,256.20 Future medical expenses $20,000.00 District nurse $100.00 Hire of equipment $189.00 Hire of oxygen $663.00 Armchair hire $800.00 Foam backrest $110.00 Toilet frame $94.00 Extender reacher $28.00 Single sock/stocking aid $13.20 Purchase of pillows $18.00 Lawnmowing $1,500.00 Soother Throat Lozenges $4,269.00 Past and future Griffiths v Kerkemeyer including interest (as agreed) $73,049.00 Total $293,640.08