Dust Diseases Tribunal New South Wales Medium Neutral Citation: Mario Hernan Perez v State of New South Wales [2013] NSWDDT 7 Hearing dates: 17 June 2013 Decision date: 25 July 2013 Before: Finnane J Decision: See paragraphs [51] [52] Catchwords: DUST DISEASE - mesothelioma - illness - INJURY - GRATUITOUS CARE - provision of - need - need is reasonable in all the circumstances - dependents - domestic services - definition of Legislation Cited: s.15B Civil Liability Act 2002 Category: Principal judgment Parties: Mario Hernan Perez (Plaintiff) State of New South Wales (Defendant) Representation: DJ Russell SC (Plaintiff) GM Watson SC with GPF Rundle (Defendant) Maurice Blackburn Lawyers (Plaintiff) IV Knight, Crown Solicitor for the State of New South Wales File Number(s): 412/12 Judgment 1Curtis J, a Judge of this Tribunal, gave judgment in this case on 26 February 2013. Many of the matters that he dealt with in his judgment were not the subject of any dispute. I will refer in passing to some of them but it is not necessary, in my opinion, that I go through and make full findings of fact about everything because the subsequent appeal to the Court of Appeal, which was heard on 9 May and a decision given on 3 June, resulted in a declaration of the entitlement of the plaintiff to damages in an amount of $389,774, together with such further sum as may be assessed under s 15B(2) of the Civil Liability Act in respect to the loss of his capacity to provide gratuitous domestic services to his grandchildren. 2The only matter then that I have to determine is the s 15B(2) matter relating to the loss of capacity to provide gratuitous domestic services to his grandchildren and, of course, consequential orders that might flow from that determination. 3Curtis J found under s 15B(2) an amount of $742,543.79 for past and future care for the two girls, Yunitza and Ariela, and $186,187.40 for past and future care for Sebastian and Javier. 4I have heard submissions from both sides. I have read the appeal books. I have read Curtis J's decision and I have read the decision of the Court of Appeal. 5Section 15B has two related sections of the Act, they being s 15 and s 15A. Section 15 is relevant only insofar as subs (4), which provides that: if services are provided or to be provided for not less than 40 hours a week, the amount of damages that may be awarded must not exceed [and then there is a formula calculation of an amount]. 6Section 15A deals with damages for gratuitous attendant care services for dust-related conditions and it provides in subs (2) that the amount of damages must not exceed the amount calculated at the same hourly rate as that provided by s 15(5). I have referred to subs (4). Subsection (5) says: If the services are provided or are to be provided for less than 40 hours per week, the amount of those damages must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (4) (a) or (b). 7The words that are important are that "the damages must not exceed the amount calculated". 8Section 15B relates to damages for loss of capacity to provide domestic services. Dependants are defined to include, amongst other persons, grandchildren. The plaintiff's claim in this case is a claim in respect of grandchildren. Subsection (2) provides that: Damages may be awarded to a claimant for any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants, but only if the court is satisfied that: (a) in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of dependants ... [that] the claimant provided the services to those dependants before the time that the liability in respect of which the claim is made. 9In this case, the liability in respect of which the claim is made obviously is the date on which the plaintiff became entitled to sue and that would be the date upon which it was clear that he was sufferer of mesothelioma. 10What has to be determined is what services were provided to any dependents at the time that he became a sufferer from mesothelioma. That does not however, in my opinion, mean the damages go from that date. Indeed, in my view, I agree with Curtis J to say he became sick because of this condition in May 2012, some little time before he got a defined diagnosis. 11What it means in this is case there are five children concerned but only four of them were dependents to whom he provided services before the date concerned and Mr Russell has quite properly and sensibly made a submission that no claim is made in respect of services provided to a younger child who was not born at the time. 12The second thing is and it adds to the first, the claimant's dependents were not or will not be capable of performing the services themselves by reason of their age or physical and mental incapacity. 13The third thing, there is a reasonable expectation that but for the injury to which the damages relate the claimant would have provided the services to the claimant's dependents for at least six hours a week for a period of at least six consecutive months. 14The fourth thing is there will be a need for the services to be provided for those hours per week and that consecutive time and that need is reasonable in all the circumstances. The words "that need is reasonable in all the circumstances" has been held by the Court of Appeal to refer to the expression "there will be a need for those services to be provided for those hours per week and that consecutive period of time". 15What the legislation deals with then is the provision of services and there is clear intention expressed that there has to be proved that there be a need and the need for the hours claimed is reasonable in all the circumstances. It is not appropriate in my opinion to construe this legislation in the way in which it was construed by Curtis J and I regret I have to differ from him. What was put to me by counsel for the plaintiff was that you get the maximum number of hours that the plaintiff was available and with children and you multiply that, taking it up to the day he would die at the age of eighty. That in my view is not what the Act requires to be done. 16The plaintiff was born on 12 July 1944. He was born in Chile and was a professional engineer in Chile. He came to this country many years ago as did his wife. He married his wife on 11 December 1972. On 12 July this year he was sixty-nine years old. The evidence shows that he retired from all occupations at Christmas time 1996. My calculation is that he was fifty-two years old at the time. He retired as a result of injuries received in an industrial accident. There is no great detail of what those injuries are. 17The plaintiff, himself, is a man who believed in staying fit and until he was struck down with mesothelioma would walk two to three hours a day. He also drove a car, he spoke English well, he was a well-educated man. 18His wife who was born on 20 December 1946 unfortunately has suffered from serious illnesses related to her heart from an early age. She was struck down with rheumatic fever at the age of fourteen and evidence before the Tribunal shows that she suffers from a great number of conditions related to her heart. 19She gave evidence before Curtis J and the effect of that evidence as I would see it is she could not drive a motor vehicle and has never driven a motor vehicle. Her husband does all the driving. She is able to cook and do all the usual sort of domestic work. She is on a pension, as is her husband. She cannot do any heavy lifting or any heavy work. Any heavy work around the house requires him to help her. That would mean in my view, she would not be able to lift up children. Even when they're young they can be quite heavy and quite difficult to lift. She would not be able to do that. 20I read into her evidence, though, that she did things like changing the nappies on the younger children when they were young. She did the cooking although he helped her. He did not regularly work. She would help the children, there are four, now five children, with breakfast but that of course is not heavy work. She would prepare meals. 21She has been found in her medical reports that I have looked at, that her expected life span would take her until she was eight-three years old. Her husband however, has been assessed as having a life expectancy of only eighty years. Medical reports that I have read indicate that he had before being struck down with mesothelioma hypertension, diabetes mellitus, hypercholesterolemia, something called GORD, and peptic ulcers. He had his gallbladder and appendix removed. 22Mrs Perez gave evidence that she suffers from dizziness at times and becomes giddy. She has to sit down, she also suffers from shortness of breath. The situation then, the factual situation that is being looked at is two quite elderly people in not a good state of health providing care for grandchildren. 23In my opinion it is quite unrealistic and unreasonable to suppose that that care would have been provided but for the intervention of mesothelioma until the plaintiff got to the age of eighty years. His state of health, even though he walked two or three hours a day and tried to keep himself fit is such in my opinion, it would be improbable that he would be able to provide this care for these number of hours past the age of seventy-five and, accordingly, I intend to assess the damages on that basis. 24There are in this case generally some imponderables. There are two granddaughters, Yunitza and Ariela. Yunitza was born on 28 April 1999 and thus she must be nearly fourteen years old. Ariela was born on 14 April 2008 and thus she is five years old. 25Evidence was given about the degree of care provided to these two children. These two children are the daughters of Caroline, the daughter of the plaintiff and his wife. She and her husband work in occupations that require them to work very long hours and for that reason, for some years now, back before the time the plaintiff became aware of his having mesothelioma he and his wife were looking after these two girls for a total period of seventy-two hours a week, three days a week. The girls would be dropped at their place early in the morning on the first day and they would have them for three days. They would sleep overnight. As well as this, there are two other grandchildren who are twins. They were born on 11 October 2011. They are the sons of Cristian, who is a son of the plaintiff and his wife. What they have been doing is caring for these two boys two days a week between 7.30 and 5.30, again, so that their parents can work. 26In assessing damages I am not concerned in any way with the reasonableness of the approach of the parents in working rather than caring for their own children. I am merely concerned with what services are provided and the necessity of them. 27Clearly enough for all children the plaintiff provides domestic services. Those domestic services are of a different type for the various children. For Yunitza and Ariela they include assisting Yunitza with homework and study. She has some developmental disability. The plaintiff has expertise in mathematics because he was an engineer. He assists her with that and she has difficulties with school work. He also takes her by car to various sporting fixtures and to other activities after school. He drops both children to school by car. He picks them up and when they are at school, of course, he and his wife are not caring for them. So they care for them before school and they care for them after school. 28Before school, on the evidence of the wife, it would appear that she helps, as does her husband, the two girls with breakfast. She does not have to assist the older girl to get breakfast because she is old enough to organise herself. She does not have to help her with getting dressed or with such activities as bathing or teeth cleaning and the like. The younger girl requires more assistance but it is relatively light assistance. 29After school the girls are picked up. They are brought home and sometimes they are taken off to other activities and they are bought back from that. They are given an evening meal. Both the plaintiff and his wife participate in doing that. Both of them participate in making sure they get ready for bed and the like. The plaintiff alone assists with homework and that type of thing. His wife only had four years of education and does not speak English, as I would understand it. She gave evidence through an interpreter. So he does a lot of things that she does not do. Then the children are put to bed and both the plaintiff and his wife go to sleep. 30The claim is made that they, by sleeping there, are providing a necessary domestic service because children cannot be allowed to be home at night with no one there to check, to supervise them, to be there in case something happens. I would agree with that. There is no evidence that these children have any particular problems with sleeping or create any particular problems at night but someone should be there. There can be no doubt. 31Mr Russell has put his case in relation to the girls in this way that the plaintiff should receive damages: the amount calculated under s 15, that is agreed as being $26.36, I think, an hour, for the hours that he, separately to his wife, spends providing services to the children and when the two of them are providing them together then he should receive half the rate. 32I am afraid I am unable to agree with those submissions in totality. I am prepared to accept that the plaintiff is entitled to damages that reflect the hours he separately spends from his wife. I am also prepared to accept that some of the hours they spend together helping it would be appropriate that he receive damages on the basis of half the s 15 rate. I regard the s 15 rate as an upper limit. It is not prescribed as the only payment. It is the upper limit. But in respect of services that he actively provides and services, whether that be on his own or with his wife, and that would include such things as supervision at home, making sure they get fed, making sure they get dressed, taking them to sporting outings, driving them to and fro, for that I think it is reasonable that they should get that rate or the damages should be at that rate, rather. So in a particular day the plaintiff and his wife would, in the morning, actively assist them to get to school, and he would be entitled to, if I am correct in my assessment of it, half the rate while they are both working on doing that. 33They travel to school and from school in the morning and travel to school and from school in the afternoon and going to and from other activities, which is something he alone does, it would be reasonable to provide damages at the maximum rate provided in s 15. However, when the girls are asleep and he and his wife are asleep or resting, in my opinion the services they are providing are passive. They are merely lying there asleep or resting. Whilst it might be that there is a need for them to lie there asleep, in my opinion it is not reasonable that there be other than nominal damages provided for that time, which is something which he and his wife would, in any event, have to do wherever they were, and I have decided that for the sleeping and resting periods he should receive $5 an hour. For the active periods with his wife, he should get $13.18 and for the active periods on his own $26.36. 34That is the basis on which I proceed. He is entitled to those damages, as I see it, as and from about 16 May last year because that is the time when, on the evidence, he was unable to continue to provide the services. He would be entitled to damages, what could be called damages for the past, from that date up until today. 35With the other two children, they are minded during the day. On occasions it would appear all children are minded together but that just happens from time to time. Perhaps that happens during school holidays and periods when school is not there. I do not know. The Court of Appeal raised the question for me to consider the reasonableness of minding all children together. In my opinion it would not be reasonable. It would not be reasonable because we are talking about two old people, both in a bad state of health. To ask them to mind four children simultaneously is to impose a very large and unrealistic burden upon them and I would not think it would be at all realistic to suppose that other than on a few occasions that that would ever happen so I do not propose to limit the damages by that type of factor. 36The two boys are quite young and even today they are not quite two years old. Obviously young children require a great deal of attention. It is reasonable, in my opinion, and a necessity, having regard to the age of both of them, that both of them be present while those children are minded. Both children would have requirements for the changing of nappies, which I would gather Mrs Perez does but the picking up of the children would be something that Mr Perez used to do. In my opinion that would be entirely appropriate that he would do that work even though the children are quite small, for someone like Mrs Perez it would not be possible to imagine she could do that type of lifting. He would need to be there. He would need to be there all the time, he would need to be there to move them, to pick them up. Even if the nappies were being changed he would be needed to pick them up and put them on a table. Children of that age up to about the age of 2 can be expected to be quite boisterous and active and require a constant supervision. 37In my opinion it is perfectly appropriate that he should be compensated on the basis that he is providing sixteen hours of services to those children a week. That should be compensated at the rate of $13.18 an hour because he is providing it with his wife, both of them together, but in my opinion, damages should cease when he attains the age of seventy-five and that must be 12 July 2019 as I see it. It is unreasonable to think that he would provide those services beyond that age even if he had not been struck down by mesothelioma. 38Now this is where I need the assistance of counsel. We want to make sure these calculations are correct and I will come to the calculations shortly. An argument has been put to me on behalf of the defendant that I should give a sort of lump sum because of the imponderables of the future. I do not agree with that approach. I agree there are some imponderables. It is possible for example that with both sets of parents they may change their working pattern at some point. Now that is catered for in my opinion by a discount factor. 39At this stage both sets of parents seem dedicated to pursuing their careers in the way they have indicated and there is no factual scenario that would suggest the change in the next four or five years. If I am correct in my assessment of damages the limit of those damages is the end of six years from now. It is possible something could change, so that is in, my opinion, requires a discount factor of fifteen per cent. 40It is not possible in my opinion to dissect services minutely and work out in this case possible ways of providing them in shorter periods of time. Sometimes it is. In a recent case I had which is far from this where the question was the provision of domestic services by a husband to a wife, his evidence was that it took him sixteen hours a week to provide domestic services. I took the view that he was taking somewhat over long to do it and that six hours would be entirely reasonable and that is what I gave him. 41In this case with children it is not possible to make that type of dissection. The needs of children can vary from day to day. On one day more time could be consumed by the plaintiff than on another day. There could be an emergency of some kind, there could be some drama of some kind. It might be that he has to spend much longer for homework with Yunitza on some day than on some other day. It could happen that on one particular day one of the children is distressed about something and some time has got to be spent talking about it. It could be that when one of them is dropped to swimming or some other activity that in fact they are there for longer than anticipated or sometimes shorter. It makes the breaking up into small components very difficult. All I can do is attempt to estimate what appears to be reasonable and provide what is reasonable for the care that needs to be provided. I repeat again the need for services to be provided for those hours per week is reasonable in all the circumstances. That is the test of the Court of Appeal refers need to and that is what I will attempt to apply. 42Taking 16 May 2012 as the date on which the plaintiff was unable thereafter to provide any services and taking that period until today I calculate it at sixty-two weeks and that the plaintiff should receive damages as follows, for the number of hours per week that he provides for the two boys, looking at the two boys, sixteen hours by 13.18 by sixty-two and that would be $13,074.56. 43From today the evidence shows that the parents of the two boys anticipate putting them into school when they are five years old. I would calculate that to be likely to occur on 31 January 2017, that would be the start of the school year next after they turn five. I do not think they could go to school at four and I do not think they would go to school in October. I think it likely they would go to school in the following January, that would be 2017. 44Now from my calculation that is three years and six months from today. The Furzer Crestani tables provide details for years but they do not provide details for years and months so I do not know what the correct multiplier is for three years and six months. But I would be of the view that the plaintiff should receive damages for sixteen hours by 13.18 by the multiplier for three years and six months and there should be a discount of fifteen per cent. The multiplier for three years and six months should of course be on the three per cent tables. I do not know what that might be. If it was, if four years was the correct multiplier I would calculate it to be a figure of $35,293.93. 45There is also to be added to that an amount of six hours per week with the same multiplier and the same weekly rate, the same hourly rate but with the deferral factor for three years and six months. And those damages would go from three years and six months until the plaintiff attained the age of seventy-five years. 46Again, I would ask counsel to calculate them. As I see it there is a deferral situation so you would have a multiplier and a deferral but then the whole thing would start from 31 January 2017 until 12 July 2019. And when it comes to the two girls I consider it is reasonable there will be a need for service to be provided for those two girls by him alone for a period of nine hours a week. Thus for the past, this is him separately, for the past he had been entitled to nine hours by 26.36 because I consider the maximum rate is appropriate and reasonable in the circumstances by sixty-two. That is the sixty-two weeks in the past and I would calculate that as $14,708.88. 47With the wife together for that past period, I would calculate that as being twelve hours of active work where both of them were involved doing things for the children over the three days. So that would be twelve by 13.18 by sixty-two and I would calculate that he then spent fifty-one hours sleeping, which should result in fifty-one hours by five dollars an hour by sixty-two. 48For the future, there is effectively six years. I would again consider he is entitled to nine hours, which he provided totally separately from his wife at a rate of $26.36 by the multiplier, which for four years is or six years is 286.9 by .85. 49With his wife, again I would allow twelve hours by 13.18 by the multiplier, which is 286.9, with a discount of fifteen per cent and for sleeping and resting it would be fifty-one hours by five dollars an hour by 286.9 by .85. 50I note the agreement of counsel on the calculations. 51I will order that there be judgment for the plaintiff for $612,934.08. 52I 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. Decision last updated: 29 August 2013