Dust Diseases Tribunal New South Wales Medium Neutral Citation: McGrath v Allianz Australia Insurance Limited [2011] NSWDDT 1 Hearing dates: 15 March 2011 Decision date: 15 March 2011 Before: O'Meally P Decision: Verdict and judgment for the plaintiff Catchwords: DUST DISEASES TRIBUNAL - Asbestos related pleural disease - provisional damages - mesothelioma - further damages - assessment of damages - principle to be applied Legislation Cited: Dust Diseases Tribunal Act 1989 Dust Diseases Tribunal Regulations 2007 Dust Diseases Tribunal Rules Supreme Court Act 1981 (UK) Category: Principal judgment Parties: Bevan Arthur McGrath (Plaintiff) Allianz Australia Insurance limited (Defendant) Representation: Mr S Tzouganatos instructed by Slater & Gordon (Plaintiff) Mr G F Little, SC instructed by Ellison Tillyard Callanan (Defendant) File Number(s): 176/2009 Judgment 1This is a case brought pursuant to s 11A of the Dust Diseases Tribunal Act 1989 (the Act) in which the plaintiff seeks an award of further damages. 2Section 11A provides: (1) This section applies to proceedings of the kind referred to in section 11 (1) that are brought after the commencement of this section and in which there is proved or admitted to be a chance that at some definite or indefinite time in the future the person who is suffering from the dust-related condition in respect of which the proceedings are brought (the injured person) will, as a result or partly as a result of the breach of duty giving rise to the cause of action, develop another dust-related condition. (2) The Tribunal may, in accordance with the rules: (a) award damages assessed on the assumption that the injured person will not develop another dust-related condition, and (b) award further damages at a future date if the injured person does develop another dust-related condition. 3On 3 July 2009 Bevan Arthur McGrath (the plaintiff) instituted proceedings in the Tribunal claiming damages for asbestos related pleural disease (ARPD). On 28 September 2009 in compliance with cl 24(2) the Dust Diseases Tribunal Regulation 2007, the plaintiff filed a Statement of Particulars relevant to his claim for ARPD. Those particulars recited that the plaintiff began to experience shortness of breath in about 2000, that he easily became "puffed out" and tired when walking and when lifting things over his head. The statement recited that in March 2000 an X ray was arranged which revealed pleural plaques. Shortness of breath and chest pain gradually worsened. A CT scan conducted in 2006 revealed a pleural effusion and upon being admitted to Grafton Base Hospital, fluid was aspirated. The cytology was inconclusive. In September 2006 the plaintiff was admitted to St Vincent's Private Hospital in Lismore where he underwent a thoracoscopy and a talc pleurodesis. Biopsies were taken, but the results were benign. In his Statement of Particulars, the plaintiff recited that he continued to suffer increased pain, shortness of breath, pain in his chest, loss of stamina in performance of the usual tasks, increasing distress, anxiety and frustration as a result of increase in breathing difficulties. The Particulars also recited that he feared a loss of independence, loss of enjoyment of his hobbies and interests, an inability to go on long walks and a restriction of social and domestic recreation activities. 4In the Statement of Claim filed on 3 July 2009, in accordance with r 5(6) of the Dust Diseases Tribunal Rules (the Rules), the plaintiff sought an order pursuant to s 11A of the Act that he might claim further damages in respect of asbestosis, mesothelioma and asbestos induced carcinoma if any should occur in the future. On 22 February 2010 the plaintiff's claim for ARPD was settled. By consent there was there was verdict and judgment for the plaintiff against the defendant in the sum of $140,000. The judgment sum was to include costs and was expressed to be on a provisional basis. An order was made pursuant to r 5(4) of the Rules that should any of the nominated diseases occur, the plaintiff might seek further damages. 5By Notice of Motion filed on 30 November 2010, pursuant to r 5(8), the plaintiff sought further damages in respect of the condition of mesothelioma which presented after entry of judgment in the claim for provisional damages. 6I am grateful to counsel for reaching agreement on material parts of the plaintiff's claim. It has been agreed that past and future Griffith v Kerkemeyer expenses, together with interest, should be awarded in the sum of $40,000. It has also been agreed that the sum of $20,000 should be awarded for loss of expectation of life. 7There is but one matter remaining and that is the assessment of general damages. 8So far as I am aware, this is the first case in which a contest has been raised concerning the method to be adopted in the assessment of further damages. Section 11A of the Act is based on S 32A of the Supreme Court Act 1981 (UK). Counsel have informed me their researches have located no authority on the interpretation or application of that provision. I think the principle to be applied involves identifying those disabilities which flow from the disease originally alleged (ARPD) and putting them to one side. These were recited in the Statement of Claim and in the Statement of Particulars. What is to be compensated now are the consequences of malignant mesothelioma. 9It should be said at the outset that after it was suggested by Mr Little of Senior Counsel for the defendant, both parties agreed that in considering the nature and consequences of mesothelioma, I might take into account knowledge I have acquired of this horrible disease as a result of hearing cases in the Tribunal, for now something in the order of 22 years. The tender of some material by the plaintiff pursuant to S 25(3) of the Act on that matter was then withdrawn. 10Mesothelioma is a terrible disease. Those who suffer from it invariably reach a stage where constant and unremitting exquisite pain is all that is experienced. The plaintiff, fortunately, is not yet at that stage, but he does experience pain and discomfort at a level significantly higher than that experienced as a result of ARPD. 11The plaintiff was born on 15 December 1945. He is married, and was married 44 years ago. He has two adult children and two grandchildren. In 2008, at the age of 63, the plaintiff retired from active employment and devoted himself to running a cattle property of some 2,000 acres at Coutts Crossing outside Grafton. It was in 2000 that the plaintiff began to experience shortness of breath and in 2006 first sought and obtained treatment for what transpired to be ARPD. He was treated by talc pleurodesis and thorascopy. Each is a painful procedure and causes exquisite discomfort. These were consequences of ARPD. Seemingly, however, the plaintiff made a good recovery from those procedures and was able to manage his cattle and I assume, by reason of the location of the property, that his cattle were beef cattle rather than dairy cattle. 12In September 2010, before symptoms of mesothelioma presented, the plaintiff and his wife decided to take a sea cruise which would travel round part of the Australian littoral and conclude in Bali. However, before the ship docked at Darwin the plaintiff began to experience severe pain and nausea. Without going into the detail of his symptoms at that stage, they were sufficient to require his disembarkation and admission to the Royal Darwin Hospital. It was there noticed that he had a large pericardial effusion and an aspiration was undertaken. 13The necessity for urgent treatment was noted and, having been admitted to the hospital in Darwin on 12 September 2010, he was transferred to the Gold Coast Hospital on 16 September 2010. Upon admission to the Gold Coast Hospital, he was suffering chest pain, cough and shortness of breath. Investigations were carried out; biopsies were undertaken and a procedure known as a pericardial window was performed. The pericardium was either perforated or an aperture otherwise made to allow the escape of fluid accumulating between it and the myocardium. On 22 September 2010 the diagnosis of malignant mesothelioma was made. Understandably, the plaintiff was devastated when the news of the diagnosis and its fatal nature was conveyed to him. 14On 29 September 2010 the plaintiff was discharged from the Gold Coast Hospital and in October 2010 the first of six rounds of chemotherapy began. They continued at three weekly internals until 9 February 2011. The chemotherapy sessions were conducted at the Gold Coast Hospital to which the plaintiff drove, but from which he returned to his home out of Grafton driven by his wife. 15During the course of chemotherapy the plaintiff experienced a wide variety of unpleasant side effects and his capacity for intimate matrimonial relations diminished. If it be relevant, it may be noted that the plaintiff was initially assessed by a medical panel of the Dust Diseases Board (the Board) as being 30% disabled as a result of the ARPD, but since 6 December 2010 it has regarded him as being 100% disabled because of mesothelioma. The Board continues to meet his medical and hospital expenses. 16Compared with others who suffer this devastating disease, the plaintiff is faring reasonably well. The presence of constant excruciating pain has not yet occurred. It is inevitable that it will occur and when it does, a more effective means of pain relief will be required. Much of the therapy for pain relief will continue to have unpleasant side effects. These will include nausea and constipation. Until shortly before symptoms of mesothelioma first presented the plaintiff was able to carry out a fairly active life. He could fish and ride a mountain bike about his property; between 10 and 15 kilometres was a common daily ride. When he and his wife would go to the beach they would take their bikes and ride them. The plaintiff is still capable of riding his mountain bike but after a distance of one or two kilometres he experiences shortness of breath and is unable to continue. 17The unpleasant results of chemotherapy have been noted, but not surprisingly, the plaintiff has been devastated by the realisation that he has contracted a fatal and painful disease. He is unable to enjoy the society of his grandchildren as he did before, not the least reason being that because of chemotherapy his immune system has been affected, and he fears that association with the children who are prone to a variety of childhood diseases could have an adverse effect were any to be transmitted to him. Because of physical weakness he misses the ability to play with them. 18The pain the plaintiff is now experiencing is different from that he was experiencing before the cruise began in September 2010. It is annoying, constant and sometimes excruciating. The plaintiff's enjoyment of life has been affected. It was his intention to spend his retirement years until the age of 85, if that were to be the duration of his life, on the property and looking after the cattle. He purchased the farm many years ago and had improved it over those years. The enjoyment of pursuing a life of grazing cattle has been taken away. 19The side effects of chemotherapy which I have not mentioned, include night sweats, the presence of cold sores in his mouth, and his capacity to taste. His hearing has been affected and he has experienced hair loss. He estimates that his breathing now is "about half as good as it should be". Pain medication is Panamax. He is not yet at the stage where morphine or its derivatives are required nor have they been prescribed, but as is common with a variety of painkillers, constipation and stomach disorders have followed. 20The assessment of damages in cases of mesothelioma is not always easy. In this case the plaintiff is not to be compensated twice and the damages awarded for ARPD are relevant only insofar as they embraced some of the consequences which have continued. These were referred to in his Statement of Claim and Statement of Particulars. Some of them have been magnified by the plaintiff's mesothelioma. It was the case that the plaintiff received as provisional damages the sum of $91,000 in his hand after costs and disbursements were taken into account. One of the submissions put to me was that it would be appropriate to assess damages for a case of mesothelioma and then to deduct from that sum the amount of $91,000. I do not favour that approach. As best I can, I will determine an amount to compensate the plaintiff for mesothelioma excluding those matters which, as best I can determine them, have been compensated by the award for ARPD. 21There is one matter that I omitted to mention and that is that another of the consequences of the plaintiff's treatment has been that he contracted what was seemingly diagnosed as scabies which caused a degree of pain and irritation. That disorder was related, temporally at least, to the treatment for mesothelioma. 22Doing the best I can to do justice between the parties, and taking into account the matters adverted to, I award the sum of $215,000 to the plaintiff by way of general damages, of which, as the parties agree, half should be allocated to the past. 23Thus the plaintiff is entitled to damages made up as follows: General damages $215,000.00 Interest on past general damages $1,075.00 Past and future Griffiths v Kerkemeyer expenses, together with interest $40,000.00 Loss of expectation of life $20,000.00 Making a total of $276,075.00 24There will be judgment for the plaintiff in the sum of $276,075.00 25The defendant will pay the plaintiff's costs as agreed or assessed. 26HIS HONOUR Is there anything either of you wish me to address which has not been addressed? MR TZOUGANATOS No, your Honour MR LITTLE No, your Honour ********** 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. Decision last updated: 25 March 2011