Dust Diseases Tribunal of New South Wales CITATION : Longfield v Amaca Pty Ltd [2004] NSWDDT 48 PARTIES : Stanley William Longfield Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) MATTER NUMBER(S) : 358 of 2004 JUDGMENT OF: McIntyre A J at 1 CATCHWORDS: :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 11 & 12/11/2004 EX TEMPORE JUDGMENT DATE : 12/16/2004 FOR PLAINTIFF: Mr J L Sharpe instructed by Turner Freeman LEGAL REPRESENTATIVES: FOR DEFENDANT: Ms W S Strathdee instructed by Phillips Fox JUDGMENT: 1. The plaintiff, Stanley William Longfield, has contracted mesothelioma as a result of inhaling asbestos fibre given off from asbestos cement building products manufactured and supplied by the defendant, whilst working as a carpenter over a period of many years. Having heard the evidence of the plaintiff as to the identity of the products with which he worked the defendant conceded liability and the matter is accordingly now one for assessment of damages. 2. The plaintiff was born on 21 May 1955 and is now 53 years and six months old. But for the contraction of his mesothelioma he would have had a life expectancy of approximately 26 years. He is now unlikely to survive beyond the end of this year. In relation to life expectancy Mr Sharpe of counsel who appears for the plaintiff has submitted that I should accept that the plaintiff will live until late December or early January of next year. Ms Strathdee of counsel who appears for the defendant urges an earlier date, the end of November, which is a mere two weeks away from now. I have had the benefit of medical reports tendered in the plaintiff's case and in particular the reports of Dr Christopher Clarke, which are marked PX7, in which he expressed the view in October of this year that the plaintiff's life expectancy was a matter of weeks. The defendant has had the plaintiff medically examined, however, no medical report has been tendered in the defendant's case. 3. The plaintiff when evidence was being given by him at his house was not yet on, as I recall the evidence, narcotic drugs, and was taking Panadol for pain relief. In my view it would be unrealistic to find that the plaintiff is likely to die within the two weeks and I accept the submissions of Mr Sharpe that the appropriate date to regard as being the plaintiff's likely date of death as being late December early January, that is late December this year or early January next year. 4. Mesothelioma is a terminal cancer. No treatment is available for it other than palliative care. The nature of the progression of the disease and the pain anguish and suffering which it necessarily produces are well known to the Tribunal and have been described in several reported cases in considerable detail. I do not propose in this judgment to repeat what is said in those cases about the condition and its inevitable progression, particularly as the plaintiff may choose to read this judgment himself. It is sufficient to say that the cancer and its associated symptoms of pain and shortness of breath will progress inexorably until life is extinguished. 5. The plaintiff's symptoms commenced in March of this year. Diagnosis was delayed as a result of the plaintiff's understandable reluctance to face the reality of diagnosis. Typically life expectancy in cases of mesothelioma is said to be about 12 months from diagnosis, that would make a life expectancy about August of next year. As I have said I accept that the plaintiff's life is likely to end in late December this year. Although, as Ms Strathdee correctly points out, the period of suffering is likely to be significantly less than that undergone by other sufferers of the disease he has, it is clear, suffered and will suffer more pain and discomfort as a result of his particular response to the disease than the average case. In particular he has undergone two surgical procedures at the John Hunter Hospital involving not one but two thoracotomies. These procedures are performed under general anaesthetic and involve the surgical exploration of the pleura. He has been left with a 20 centimetre scar as a result of these procedures and has been left in considerable pain and discomfort. He also suffered from radial nerve palsy as a result of the surgery although he has achieved a moderate recovery from that complication. He has had admissions to Concord and Manning Base Hospitals. He has developed considerable swelling of the abdomen, his lower limbs and his testes. The swelling of the lower limbs was obvious when evidence was taken at his home in Wingham and that condition was obviously one which distressed him. 6. The plaintiff is relatively young. Although he has separated from his wife he has one child and grandchildren in New South Wales. He will not live to see them grow up. His loss is all the more tragic in view of his age than that of a person who has had the fortune to live towards the end of a normal life expectancy. In my view, an appropriate award for general damages for pain, suffering and loss of enjoyment of life, bearing in mind all the matters that I have said and accepting the submissions of Ms Strathdee in relation to the comparative shortness of the duration of the disease, is $170,000. Of that amount, I assess $130,000 to be for past pain and suffering. Interest at 2 per cent on that since March of this year totals $1,700 which I also include in the plaintiff's damages. 7. The plaintiff will suffer a significant loss of life expectancy, as I have already referred to. In my view, the appropriate award for damages for loss of life expectancy is $20,000 and I include that amount in the plaintiff's damages. 8. The plaintiff is in receipt of a pension from the Dust Diseases Board and accordingly will have no out-of-pocket expenses. He has, however, been provided, and there will be provided for him, gratuitous care and assistance. This has been agreed by the parties as totalling $20,000, and I include in the plaintiff's damages that amount. 9. The substantial issue in relation to damages is damages for future economic loss. Mr Tolcher from Lawler Partners, in his report dated 28 October 2004, PX 10, suggested three alternate methods of assessment of economic loss which he numbered scenarios 1, 2 and 3. Scenario 1 was based upon the tax invoice records of the plaintiff's business as a self-employed carpenter for the three months prior to his death. Scenarios 2 and 3 were based upon a calculation of economic loss having reference to average weekly earnings and other materials relevant to industry generally but not specifically related to the plaintiff's business. 10.Mr Watt from Horwath New South Wales Pty Ltd, DX 1, took a different view in his assessment of economic loss, averaging the income received by the plaintiff over a period prior to the mesothelioma emerging and making no reference to industry sources generally. In my view of the present case, the correct method of approaching quantification of the plaintiff's claim for damages for loss of earning capacity is to have substantial reference to his past earnings but not complete reference, that is, not to base the calculation of economic loss suffered by him solely by reference to his earnings. Substantial reference is what I think is appropriate. Such an approach must involve not only reference to the records of the plaintiff from March this year until June, that is the approach adopted by Mr Tolcher, but must include reference to available tax returns and other records of earlier years. 11.There is a summary of tax returns filed by the plaintiff for the years concluding June 2000 and June 2001. No returns for income tax purposes were apparently lodged by the plaintiff for the financial years ended 30 June 2002 or 30 June 2003. Mr Watt, the defendant's expert, infers from this that the plaintiff's total taxable income for those two years, that is, the years to June 2002 and June 2003, would have been less than the relevant tax free threshold, hence no tax returns being filed. I am not prepared to draw this inference from the fact that no tax returns were filed for those years, particularly as no such suggestion was put to the plaintiff in cross-examination to support this approach taken by Mr Watt. Invoices were apparently made available by the plaintiff which listed his dealings with a company known as the Shannon Trading Company Pty Ltd between September 2002 and June 2004. These suggested for that period gross receipts of 16,819 odd dollars clear of GST. For the period of July 2003 to June 2004 records, tax invoices for work performed for the Shannon Trading Company and Kookaburra Homes totalled $27,944 clear of GST. It would seem from paragraph 25 of the plaintiff's affidavit that he also worked for a company known as C2C Developments Pty Ltd during this period. No invoices have been supplied from that company and it may well be that as this was a related company of the other company whose records have been provided that all the relevant records have been produced. 12.The plaintiff said in his affidavit that he was paid $936 per week for his work at the time he ceased work as a result of his mesothelioma. The plaintiff was not cross-examined to suggest that his gross earnings were less than that figure at the time of his disease becoming manifest and him ceasing work. The reality is, however, that if one averages the receipts by the plaintiff for the last few weeks before ceasing work, one gets to a gross average something not too far different from $936 per week. This aspect of the plaintiff's claim was not gone into in any great detail in evidence at the plaintiff's house, and it must be recalled that in many respects the plaintiff was in a sense "in extremis" when giving evidence and I do not regard any failure on the part of counsel for the defendant to raise the precise earnings in the last few weeks of the plaintiff's employment as a matter which could in any way be said to be critical of the defendant's approach to the case. It is important, however, to note that what he did say in evidence was roughly consistent with his earnings for the last few weeks of his employment. I also bear in mind the fact that in the last few months of his employment the plaintiff was suffering from the gradual onset of symptoms of shortness of breath and chest pain, taking time off work. As a result of this, the records for the last few weeks of his employment may underestimate the income which he would have earned had he not been suffering from the emerging symptoms of the cancer. 13.No records are available for any work expenses claimed for the plaintiff other than nominal amounts referred to and summarised as being claimed by the plaintiff in his tax returns for the years ended June 2000 and June 2001 summarised in schedule 2 of Mr Watts' report from Horwath NSW. Mr Tolcher from Lawler and Partners in his report, exhibit PX10, makes reference when considering economic loss to work related expenses of $100 per week. That reference does not appear to be supported in evidence, certainly it was never suggested to the plaintiff that he had sustained or would have sustained in the future an obligation to meet work related expenses totalling about $100 per week. Mr Watt in commenting on this aspect of the case on behalf of the defendant commented that Mr Tolcher, that is the plaintiff's expert, in PX10, may have been mistakenly referring to savings in the nature of personal expenditure in the lost years, and I accept that this probably was the case. On the evidence, I do not see any significant deduction that should be made in relation to past or future economic loss in relation to work related expenses, and certainly not to the extent of $100 per week as Mr Tolcher suggested. 14.Mr Tolcher analyses the plaintiff's self-employed earnings for three months before June 2004 at about $745 per week clear of GST. This is consistent with Mr Watts' investigation of market rates for employed carpenters working similar hours in industry generally. That appears in paragraph 3.12 of DX.1. In this respect, it should be noted of course that 40 hours work per week may not be available to persons in the industry generally as a result of adverse weather conditions and lack of continuity of employment, that is, one job leading necessarily to another job without loss of time. 15.I do not propose to adopt a calculation of economic loss by simply averaging the plaintiff's known earnings over the last few years and projecting them forwards. I propose to adopt a rate net of GST and income tax of $500 per week as representing the plaintiff's likely earnings but for his mesothelioma. Whilst this figure is greater than his longer term average net earnings, I must and I do take into account that over the three months before he ceased work, his earnings were at a significant rate, whilst his capacity for work was adversely affected by the emerging symptoms of his disease. I accordingly intend to use the figure of $500 net per week to represent the basis of a calculation of past economic loss and economic loss to the likely date of death. Adopting this approach, I assess damages for past economic loss, that is to the date of trial, at $11,500, and I include that amount in the plaintiff's damages. This figure has been taken from the assessments by both experts and updating the figures to the present date. Loss of earnings from the present until the end of the year comprise six weeks at $500 per week, and I include $3,000 in the plaintiff's damages in this respect. 16.I accept that the plaintiff would have worked to at least age 65. That period is eleven point five years. The multiplier for that period would appear to be 508.6, having reference to the 3 per cent tables. I find that his earnings would be likely to have been $500 net per week of tax during this period. Several significant questions arise however have to be determined before I can assess the appropriate amount of damages to reflect loss of future earning capacity. First, I have to assess whether the earnings would be likely for any reasons peculiar to the plaintiff to have remained at this level. Secondly, I have to assess whether or not the plaintiff would have worked to 65 years of age, in this respect I have indicated that I accept that he certainly has at present or had the intention before the mesothelioma emerged to work to that age. Thirdly, I have to find if he did work to that age whether he would have worked beyond age 65. I am satisfied that his intention but for the mesothelioma would have been to continue to work after age 65. Fourthly, I have to find if he did in fact work, and this was his stated intention, after age 65, would the work have been full-time or part-time work. If the work was part-time work, what would he be likely to have earned? Fifthly, how long would that period of earnings after age 65 have continued? Finally, I have to assess what sums would have been spent by him to maintain him in those lost years to enable him to exercise his earning capacity. 17.As I have said, I am satisfied that the plaintiff intended that he would have worked to at least age 65, and I find that on the balance of probabilities he would have so worked. He did not contribute to a superannuation fund it would seem, and was living, at the time of the disease manifesting itself, in rented accommodation. He had a variety of external interests and pursuits and would have been required to earn money to continue to enjoy the lifestyle and leisure pursuits that he described in his affidavit. He would be likely in my view to have worked after the age of 65 but probably not on a full-time basis. It is difficult to quantify what those earnings would have been, it is difficult to quantify how many hours per week he would have worked, and it is difficult to quantify the period of years after age 65 that he would have continued to work. Whilst I can, with some degree of certainty, make some calculation of the appropriate value for loss of earning capacity to age 65 by reference to weekly earnings and the appropriate multiplier, to adopt such an approach after age 65 would, in my view, be to engage in unfounded speculation. I propose to add to the plaintiff's damages for future loss of earning capacity after age 65, a modest buffer to compensate him for loss of earning capacity after age 65, but that buffer cannot be assessed, in my view, by reference to any mathematical formula, it is more a matter of judgment. 18.In relation to saved expenditure, Mr Tolcher in his report, PX10, assumed or assessed the likely savings at $100 per week. The assessment of Mr Watt was substantially different, Mr Watt assessing a saving of expenditure of $299 per week. This was based upon particulars apparently supplied by the solicitors for the plaintiff and extrapolated in the report of Mr Watt. The most significant expense which Mr Watt felt was a potential saving was rent which apparently totalled $8,610 per annum as at the date of the particulars supplied by the solicitors for the plaintiff to the solicitors for the defendant. The plaintiff's wife said in evidence that she intended when there was no longer a need to care for the plaintiff to return to her residence elsewhere in New South Wales. In the immediate term, it would seem almost inevitable that if the plaintiff had not suffered from mesothelioma he would have continued to rent premises. That is not to say, however, that he would necessarily have been required to rent premises for the remainder of the time when he was exercising his earning capacity. However, in view of the fact that he was paying rent, and indeed quite significant rent at the time of the provision of particulars by his solicitors to the solicitors for the defendant, it would seem probable that the plaintiff would more often than not in the future have been living in rented accommodation. 19.The other significant item of saved expenditure referred to in the report of Mr Watt from Horwath NSW Pty Ltd referred to annexure E2, was transport costs, totalling $3,783. Analysis of the plaintiff's tax returns for the years ended June 2000 and June 2001 do not reveal any significant deductions claimed by him in respect of travel costs for those years. Indeed, the amounts claimed in those years only amount to several hundred dollars. In view of the fact that this matter was not put to the plaintiff in cross-examination, I do not think it appropriate to include in the saved expenditure any substantial amount saved for transport costs. 20.Doing the best I can with the evidence available to me, and considering the submissions made by counsel for the parties, I assess the plaintiff's likely saved expenditure in the lost years, that is, the weekly amount that he would have been required to pay to enable him to exercise his earning capacity, at $200 per week. 21.I propose to assess damages for loss of earning capacity from 1 January 2005 to age 65 on the basis of $300 net per week, that is, representing $500 net per week less saved maintenance of $200 per week. As this figure of $500 net per week is substantially taken from the plaintiff's past earnings, and having some reference to earnings in industry generally based on the statistical figures referred to by Mr Tolcher in PX10, there has already been included within that assessment of past earnings an amount to reflect vicissitudes such as lack of work, inclement weather and illness. There is no evidence before me to suggest that the plaintiff suffers from or is likely to suffer from any particular illness which might have an additional impact upon his capacity to earn in the future but for his mesothelioma, indeed, there is nothing in the evidence to contradict the plaintiff's clear assertion in the evidence before me that he was completely fit. However, given the fluctuations in the plaintiff's past income, some deduction for vicissitudes is in my view is appropriate, although I do not propose to deduct 15 per cent or 20 per cent by way of vicissitudes as has been suggested to me in submissions. 22.As I have said, it is impossible to approach calculation of economic loss after age 65 on any reliable mathematical basis. I propose to allow a buffer to compensate him for the loss of earning capacity after age 65. In assessing this buffer I take into account the fact that this buffer is being received now and not in eleven point five years time or indeed not in the years after age 65. I have had reference to the appropriate 3 per cent discount tables in reaching this figure. 23.$300 net a week for eleven and a half years using the multiplier of 508.6 and taking off 10 per cent for vicissitudes, bearing in mind that the basic figures already incorporate some vicissitudes, gives a figure of $137,322. To this I would allow a further amount of $35,000 to represent a buffer in respect of loss of earning capacity after age 65, calculated by reference to the matters that I have just referred to. This gives a total of damages for future economic loss, that is, damages for future loss of earning capacity after 1 January 2005, at $172,322, which I propose to round down to $172,000. 24.Accordingly, the damages which in my view the plaintiff is entitled to recover comprise as follows: General damages for pain, suffering and loss of enjoyment of life $170,000.00 Interest on past pain and suffering $1,700.00 Damages for loss of expectation of life $20,000.00 Damages for gratuitous care and assistance $20,000.00 Damages for past economic loss $11,500.00 Damages for future loss of earning capacity to the date of plaintiff's death on 31 December this year $3,000.00 Damages for future loss of earning capacity thereafter $172,000.00 Total $398,200.00 From this figure I deduct the amount of $8,463 representing payments which the plaintiff has received from the Dust Diseases Board and which he will receive until 31 December 2004 from the Dust Diseases Board relevant to the plaintiff's claim for loss of earning capacity, leaving a balance payable of $389,737. 25.I grant leave to the defendant and extend time within which the defendant has leave to file cross-claims until 31 March 2005. 26.I enter judgment for the plaintiff against the defendant in the sum of $389,737. I order the defendant to pay the plaintiff's costs. 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.