Raymond John Dean v Tower Insurance Limited (for Rogers Meat Co Pty Ltd) [2013] NSWDDT 9

Dust Diseases Tribunal New South Wales Medium Neutral Citation: Raymond John Dean v Tower Insurance Limited (for Rogers Meat Co Pty Ltd) [2013] NSWDDT 9 Hearing dates: 28, 29 May, 14 June 2013 Decision date: 30 July 2013 Before: Finnane J Decision: See paragraph 38 Catchwords: DUST DISEASES - mesothelioma - asbestos DAMAGES - future care - provision of gratuitous domestic services - how calculated - factors taken into account - dependants Legislation Cited: Civil Liability Act 2002 Cases Cited: (Re Jones Mashman) Amaca v CSR (No 2) [2009] NSWDDT 24 Stavar v Caltex Refineries New South Wales Pty Ltd [2008] NSWDDT 22 State of New South Wales v Perez [2013] NSWCA 149 Category: Principal judgment Parties: Raymond John Dean (Plaintiff) Tower Insurance Limited (for Rogers Meat Co Pty Ltd) (Defendant) Representation: PCB Semmler QC (Plaintiff) GPF Rundle (Defendant) Slater & Gordon (Plaintiff) Hunt & Hunt (Defendant) File Number(s): 314/12

Judgment 1The plaintiff was a man who was born on 22 January 1952 at Orange in the State of New South Wales. He went to school but left at the age of sixteen years. He then went to work at Rogers Meatworks, an abattoir in Orange. The defendant, Tower Insurance, is the insurer for Rogers Meatworks which went into liquidation many years ago. 2The jobs he was given with the employer were the jobs of an unskilled worker and a labourer. He was employed mainly in the boiler room. The boiler room had in it lagging on the boiler pipes and he removed those boiler pipe lagging strips and replaced it with new lagging. He did this until approximately 1970. 3Argument at one point was had in the case as to whether this was asbestos or not. The plaintiff claimed that it was asbestos and ultimately in evidence, identified it as asbestos made by the company known as Bells. That company made asbestos lagging. 4He was able to identify it because some years after he left this employment, he worked in other employment where he was required to undertake a course in health and safety in the workplace. He did that course and in that course, had to study asbestos in the workplace. During the course of that course, he identified and became familiar with all sorts of asbestos that had been applied in the workplace and was able to say that asbestos that he saw in the course, that is by photograph, was the same as the asbestos that he had removed and replaced while he was working for the Rogers Meatworks. 5The defendant ultimately has agreed that I could comfortably make a finding that the plaintiff was exposed to working with asbestos lagging whilst he was with his employer, and I make that finding. 6There is no doubt on his evidence, which I accept, that he was provided with no masks, no safety equipment, given no warnings and in fact the employer did nothing to protect him from the consequences of exposure to asbestos. All asbestos exposure is likely to make a material contribution to the onset of mesothelioma, and I refer in that regard to a decision of O'Meally P of this Tribunal, (Re Jones Mashman) Amaca v CSR (No 2) [2009] NSWDDT 24 at [7]. 7I am also able to say, conformably with many of the decisions in this Tribunal that it was reasonable foreseeable to any employer in at least the mid 1960s, that exposure to a small amount of asbestos was capable of causing injury, and I would refer again to a decision of O'Meally P, Stavar v Caltex Refineries New South Wales Pty Ltd [2008] NSWDDT 22 at [75]. 8In my opinion, the employer was negligent in exposing the plaintiff to asbestos in this way. The plaintiff has produced medical evidence which is not disputed, that he suffers now from mesothelioma, the diagnosis of that disease became clear on 26 July 2012. He had been feeling quite unwell before that, had many tests and examinations and ultimately on that day he was diagnosed from suffering with mesothelioma. 9The plaintiff is an impressive man. He is now sixty-one years old. He was born on 22 January 1952. He is an honest, decent man, who for most of his life worked very hard. He was not in fact engaged in paid employment at the time he was diagnosed with mesothelioma. He had had an accident whilst at home which caused injury to his back. He could not claim against anybody for this injury, but it disabled him from work. He then was on some form of sickness benefits. 10The plaintiff's wife is much younger than him. She is forty-three years of age. He married her on 23 August 2003, but in fact had been living with her for some time earlier than that. They have four children; Raymond born on 13 December 2000, Francis born on 23 May 2002, Valerie born on 5 March 2004 and Cheryl born on 24 August 2006. The plaintiff's wife came originally from the Philippines. She gave evidence before me. I accept her as an honest and decent and reliable witness. She is someone who has some difficulties with the English language. An interpreter was in Court to assist her on some occasions. 11In November 2008, the plaintiff injured his back as I have already said and left all forms of employment early in 2009. Since that time, for a period after that, the entire family lived on the benefits which he could obtain from the government. He and his wife discussed the situation because they were running into financial difficulties. Between them they own very little. They live in a rented house, the house in fact is owned by a sister of the plaintiff's wife. They have a car that is some years old, which they are paying off. They have no other real assets. What was decided between them was that the wife would go and do a course that would fit her to become a semi qualified nurse and enable her to work in a nursing home. He then would take over all the homemaker's duties, so that she could both do the course and then subsequently work. 12As at the time of the trial before me, only he had a licence to drive a car. His wife had a learner's permit which meant that she could drive with him in the car or with some other licensed driver in the car, but she did not have a licence. All driving duties then have had to be done by him. 13Since 2009 he effectively has been the person who has done most of the housework, the cleaning inside the house and outside the house and he gave evidence of his role in getting the children up in the morning, getting them breakfast, making sure they were dressed, then taking his wife to work by car, coming back, then taking the children to school and coming back and then spending virtually every hour of the day until he went to sleep, doing work in and around the house, or doing something to help the children or his wife. Thus for example, he would pick her up in the afternoon and bring her home, make her cocoa, give her a period where she could lie down and relax. He would then help her with dinner, she was the cook but he often helped with the peeling of vegetables and preparation of food and making sure it was served. He did the washing up. He did all the cleaning in the house. He made all the beds. In the evening and the night time, he would assist his children with their homework. His wife, because her knowledge of English is not perfect and she herself is not well educated, did not feel able to contribute to that. Whilst he is not educated, he did his best to assist. 14The plaintiff in July 2012 was diagnosed with mesothelioma. Fluid was drained from his lungs and the diagnosis then on 26 July was epithelial mesothelioma. He has since that time had a large number of treatments with chemotherapy. That chemotherapy has abated the spread of the mesothelioma, so the plaintiff has lived beyond the six month period initially considered by his physician as being his likely span of life. 15Evidence from Professor Allan who was his physician, was to the effect that he might well last until Christmas time this year, it is possible he could last longer, but he will die. He suffers the usual excruciating problems of mesothelioma sufferers. He has a loss of the sensation of taste, frequently has diarrhoea, pains in his joints, pains in his chest. He has to sleep on a bed in the same room as his wife, but separate from her because at night he becomes very hot and sweats a lot. Professor Allan explained that the reason for this was that the cancer he has in its spread, can be described as something like a ball under his skin getting hotter and hotter, so during the night this actually heats up and because of that heat, he sweats and of course he finds it very hard to sleep. 16Since the date he was diagnosed, he has continued to try and provide help to his family but that help now is extremely limited. He can still drive his wife. He cannot do the heavy housework. He finds himself with a lack of energy and finds it difficult indeed to do anything very much at all. 17In my opinion, the plaintiff is an honest man and I accept his evidence. I accept that he genuinely does what he says he does. The evidence that he gave was to the effect that the arrangement between him and his wife on the one hand and his wife's sister who owns the property on the other, was that they would take steps as tenants to improve the property and in return for that, their rent was somewhat lesser than it might have otherwise been. Because he has been struck down with mesothelioma, he has not been able to honour that part of the agreement. He cannot do the external work, he cannot paint, he cannot do anything to improve the property. He feels very acutely the loss of his ability to care for his children. He had been married before but has no contact with that wife or the children of that marriage. He is clearly extremely devoted to his wife and to his children and he wants to give them the very best of everything. 18The plaintiff's claim is that I should find negligence on the part of the employer and I have already found that, and that I should find that he suffered mesothelioma as a result of the negligence of the employer, I find that. He has made claims, some of which are agreed. He has claimed damages for loss of expectation of life and that has been agreed between the parties to entitle him to an award of damages of $25,000. He has claimed for past and future gratuitous care and services, that is services and care to be provided to him, and that has been agreed at $80,000. There is a claim for general damages. His counsel has claimed $350,000 together with interest on the past general damages. The other and most substantial claim was a claim for past and future damages under s 15B of the Civil Liability Act. Section 15B entitles a plaintiff to claim for any loss of his capacity to provide gratuitous domestic service to his dependants. In this case his dependants are his wife and his children. What has to be shown under s 15B(2) is that the claimant provided the services before the time the liability in respect of which the claim was made arose, and that the dependants were not capable of performing the services themselves by reason of their age, physical or mental capacity, that there is a reasonable expectation that but for the injury he would have provided the services to these dependants for at least six hours a week and for at least six consecutive months, and there will be a need for the services to be provided for those hours per week in that consecutive period of time and that need is reasonable in all the circumstances. 19The Court of Appeal has recently in the case of State of New South Wales v Perez [2013] NSWCA 149 considered s 15B and I propose to grant damages in accordance with the reasoning of the Court of Appeal and in particular, the reasoning of his Honour Basten JA. 20What the Court of Appeal has concluded in my opinion, is that: Section 15B(2)(d) requires the judge to look at a need for services to be provided for those hours a week in a consecutive period of time, and that need, that is the need for those services for those hours in that consecutive period of time, is reasonable in all the circumstances. 21What I am required to do, in my opinion, is to look at that in respect of past services and future services. 22Subsection (4) provides: The amount of damages must not exceed the amount calculated at the same hourly rate as that provided by s 15(5) regardless of the number of hours. 23In this case, the plaintiff's counsel put forward calculations showing the number of hours per week that the plaintiff provided domestic services and multiplied that by the number of years that in his submission, these services should be provided. A claim was made for 101.5 hours per week care until the youngest child reaches the age of sixteen on 24 August 2022. After that point, the plaintiff claims, according to his counsel, it would be reasonable to allow thirty-five hours care a week until such time as his youngest child reaches the age of eighteen and in addition he claimed the value of overnight on-call services of eight hours per night until 24 August 2022. 24Making that calculation, the submission is put that I should provide the sum of $1,790,093 for past and future s 15B damages. 25The Court of Appeal in its decision has made it plain that I must look not just at a claim and multiply it by numbers of hours, but look at what is reasonable to be provided and work out whether all the hours claimed are necessary, and to look at every relevant fact. In my opinion, it is completely erroneous merely to work out the maximum number of hours somebody could be providing service and multiply it by the maximum rate provided and do it for a large number of years without regard to a number of other matters. 26For example, the plaintiff is now sixty-one. Could it be considered reasonable or probable, that he would continue doing this well into his seventies, providing 101.5 hours a week of services? Furthermore, when a person is sleeping at night, what service is he providing? The only service really is that he is there in case something happens; he is there in the house protecting the children. Someone has to be there. However, his wife is also there. He has to sleep at night and when he is asleep, he is providing assurance to his children, but he is not actively providing anything else. From time to time, he would get up in the night if one of the children called, that was his evidence and I would accept that. He said he would do that in preference to his wife because his wife worked hard and he did not want to disturb her. Would that be likely to continue well into his seventies, that he would be the only one who would get up in the night when an occasional call was made? As the children got older, how often would these calls be made in any event. 27In a decision which I gave last week, I came to the conclusion that the fact that there is a maximum rate provided, does not mean that is the rate that must be provided for every single hour claimed. Furthermore, an assessment has to be made of the claims. What has to be looked at is necessity, so there is a need for services, not just "it would be pleasant to provide them", or "I really like to provide them", but there is an actual need. 28The plaintiff is a genuine, decent man and the way in which he has given his evidence is to say that virtually every hour of the day when he is awake, he gives to his wife and children. He might have half an hour to an hour somewhere in the day when he can get a cup of coffee for himself, apart from that, he is working in the house; he is doing something. Then he and his wife together do things with the children together after school and before school. Then on weekends, the two of them would go with the children to school functions, to parties, to outings and the like. And on his estimate, he spends most of his time during every day, when the children are at school, working. He does nothing but work all day long and I have no doubt that in fact he does fill in, or used to before he became sick, used to fill in all those hours doing things. However, I do not accept that doing all those things was necessary, or that the amount of time he spent doing them was the least amount of time that could have been spent. He is a relatively uneducated man. He loves his wife and children, and in my opinion, his evidence really enabled me to conclude that he spent his day filling in all his time doing things around the house. However, in my opinion, it would be unreasonable to require the defendant to pay for all the hours that he claims that he spends. In my opinion, a reasonable assessment of the hours, the necessity, the hours that were necessary to keep the house clean and tidy during the week is six hours, and that is what I intend to provide. 29Apart from that, he provided on his own care for the children separate from that of his wife, that would include taking them to and from school, taking them to outings when she was not present with him, assisting them with homework and the like when she could not assist them. In my opinion, an appropriate award would be for twenty-seven hours of his sole care of the children during a week. 30I have also come to the conclusion that with his wife, he spent another twenty-one hours providing care for the children, the two of them together providing it. That is a total of forty-eight hours a week where the two of them were providing active - and this is active care for the children, not resting at night or resting in the afternoon, but actively working with the children. 31In my opinion however, as he is doing it with her, the rate that he should be allowed should be half the rate. Allowance has to be made for the fact that she contributed also for twenty-one hours. 32At night, he and his wife would rest and go to sleep and during that resting period they might watch television, read a book, talk, who knows, it could vary from night to night, and it would be reasonable to consider that he should be provided with an allowance for that resting and sleeping of, twelve hours a week. It is a very modest number of hours, at a rate of $5 an hour. I fix a nominal amount because if a person is resting or sleeping and not providing any active services, in my opinion the rate which should be provided for that should be very much less. 33He is entitled to those damages from 26 July 2012 to 30 July 2013 and I would calculate those damages as follows; the cleaning of six hours a week by 26.36 which is the maximum rate by fifty-three, is $8,382.48. Full time care he alone provided for those fifty-three weeks, at the same rate would be $37,721.16. The twenty-one hours with his wife at $13.18, would be $14,669.34 and the sleeping and resting care would be $3,975, a total of $64,747.98. 34For the future, I think it unrealistic and unreasonable to measure it by ages of children. As the oldest child grows, that child could be expected to provide more assistance and be less dependent. As each of them grows, they could be expected to do more and more for themselves, so less need for doing things like lunches, breakfast or even taking them to and from school. But even more so, it seems to me unreasonable to provide damages beyond ten years from the present, by which time, the plaintiff, if he was still alive, would be seventy-one years old. It would be unreasonable and improbable in my opinion, that a man older than seventy-one, whose state of health was not extremely good anyway, would be continuing to provide 101 hours of services a week, less the sleeping time. He physically would not be capable of doing it, and in my opinion, the provision for the future should cease after ten years. 35That would mean the services that he provides on his own, twenty-seven hours a week at $26.36 an hour, with a multiplier of 451.8, then a further multiplier of a discount factor, would get to a sum of money. What discount factor should I apply and for what reason? I have decided I should apply a twenty-five per cent discount and I apply it for a number of reasons. The first one is that before he became struck down by mesothelioma, his back was starting to improve and he was contemplating a return to work. Secondly, his wife might well be expected to get her driver's licence as she has a learner's permit at some time during those ten years and take over some of the burden of driving. Then the children would probably help with the other chores in the house and lessen the amount of work, and if both he and his wife were working, it could be expected that his wife would take over more of the active work in the house, sharing it with him. All those lead me to conclude there should be a discount factor of twenty-five per cent. Applying that, the damages for the period he works entirely himself would be $241,166.32. The period of twenty-one hours with his wife would result in $93,786.90, and the rest and recreation period of $5 an hour would result in $20,331. So for the future, I would assess his damages under this head as $355,284.22. Adding the past and the future together, that would entitle him to a total amount for s 15B damages of $420,032. 36The plaintiff's counsel has sought $350,000 for general damages. I have no doubt that the plaintiff is suffering in a very extreme form, as do most mesothelioma sufferers. Up until now, the usual general damages have been of the order of $290,000. I have pondered whether I should increase them. In some respects, it could be said that if the Civil Liability Act schedule of damages were applicable, it would be perhaps more than arguable that a sufferer of mesothelioma is someone entitled to a maximum amount of damages. However, before I would be prepared to conclude that some much larger sum than $290,000 should be allowed, I would want to be satisfied that there would be something about this case that would distinguish it from other cases that have been decided, in the not so distant past. I am afraid I cannot and therefore I have come to the conclusion the amount of general damages should be $290,000 together with interest on that which I would calculate at $2,900. 37Those figures as I understand them are, s 15B damages, $420,032, general damages $292,900, past and future gratuitous care $80,000, agreed loss of life $25,000. I am not going to enter the verdict at the moment, I have indicated the figures. I would like the parties to confer and agree that those figures are correctly calculated. I do not need submissions to suggest that I am doing it wrongly, indeed I will not take them, but I will take submissions as to calculation. If the parties can agree on that calculation, then I will enter a verdict. 38I will enter a verdict for the plaintiff in the sum of $817,932.