RONALD WILLIAM PHILLIPS v AMACA PTY LIMITED (formerly James Hardie & Coy Pty Ltd) [2019] NSWDDT 5

Dust Diseases Tribunal New South Wales Medium Neutral Citation: RONALD WILLIAM PHILLIPS v AMACA PTY LIMITED (formerly James Hardie & Coy Pty Ltd) [2019] NSWDDT 5 Hearing dates: 20 & 21 May 2019 Date of orders: 24 May 2019 Decision date: 24 May 2019 Before: Strathdee DCJ Decision: (1) Judgment for the plaintiff against the defendant in the sum of $664,393.03. (2) Order that the defendant pay the plaintiff's costs as agreed or assessed. (3) Liberty to apply to my associate within 14 days if a different costs order is sought. Catchwords: DUST DISEASES – damages – mesothelioma – s15A – factual background – past care – future care - reasonableness Legislation Cited: Civil Liability Act 2002 Dust Diseases Tribunal Act 1989 Cases Cited: Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15 Griffiths v Kerkemeyer (1977) 139 CLR 161 Category: Principal judgment Parties: Ronald William Phillips (Plaintiff) Amaca Pty Limited (Defendant) Representation: Counsel: Mr J. Rush QC (for the Plaintiff) Mr J. Sheller (for the Defendant)

Solicitors: Segelov Taylor (for the Plaintiff) Mills Oakley (for the Defendant) File Number(s): 430/2018

Judgment 1. Mr Ronald William Phillips ('the plaintiff') sues Amaca Pty Limited by Statement of Claim filed in the Tribunal on 21 December 2018 seeking damages at common law for the disease of Mesothelioma. 2. The plaintiff alleges that between approximately 1977 and 1985 he assisted his friend Mike Fisher to carry out building and construction work in the Sutherland Shire, and during the course of that work the plaintiff handled, cleaned-up, swept and otherwise worked with asbestos cement building materials manufactured and supplied by the defendant. 3. As a consequence, the plaintiff was exposed to and inhaled asbestos dust and fibre. 4. The hearing commenced before me on 20 May 2019 where the evidence of the plaintiff, his daughter Karen Felton, and his friend Pamela McKerral, was taken at the apartment in which the plaintiff is currently living in Cronulla. 5. Upon returning to Sydney for the continuation of the proceedings that afternoon, it was appropriately conceded by counsel for the defendant that having heard the plaintiff's evidence, the matter would now proceed simply as an assessment of damages. 6. The plaintiff who was born on 14 June 1934 is a retired architectural designer. The plaintiff between 1953 & 1956 completed his apprenticeship as an engineer with Commonwealth Engineering at Rocklea, and then from 1956 to 1977 worked as a draftsman and design engineer at the Australian Atomic Energy Commission in Lucas Heights, NSW. 7. In or about 1977 or 1978 the plaintiff then set up his own business known as 'Ron Phillips Designs' in which he was self-employed as an architectural designer. He continued that work until approximately 4-6 years ago. 8. During the course of his work as an architectural engineer the plaintiff and his family travelled to and lived in the United Kingdom and Canada, for a number of years as part of the plaintiff's career and continuing professional education. 9. Prior to contracting Mesothelioma the plaintiff lived on his own in an apartment in Cronulla where he was fiercely independent, without any need for any assistance in personal care or domestic activities. He was extremely fit and involved in many activities, including dancing and walking along the Cronulla boardwalk a couple of times per week. 10. In his Form 1 Statement of Particulars, which was tendered and marked 'Exhibit A', the plaintiff details that up until approximately late 2018 his health had been good, that he had no problems with his heart and the only medication that he was taking was 'Nexium' for reflux. 11. In October 2018 the plaintiff describes experiencing severe pain in his neck and right leg, which he put down to cervical stenosis from which he had suffered previously. 12. On 3 October 2018 the plaintiff went to see his local doctor, Dr Rowen Vickers, who recommended the plaintiff undergo and x-ray and a CT scan. These were reported to the plaintiff as showing pressure on his spinal cord and he was told that he needed an MRI scan. He was provided with pain medication and then sent to see a physiotherapist. 13. Within a week or so the plaintiff indicated his leg pain had settled however he continued to suffer pain in his neck and lower back. The plaintiff also noticed that he was starting to get short of breath on exertion and was losing weight. He had a cough and was coughing up sputum. 14. The plaintiff's breathlessness became a particular problem when he was dancing. After these symptoms had persisted for more than 6 weeks, Dr Vickers suggested the plaintiff have a chest x-ray and a CT scan. These were done on 20 November 2018 and the plaintiff was told a dark 'splodge' was shown on his lung. He was also told that half of his right lung was black and filled with fluid and that he ought attend to Sutherland Hospital to have the fluid drained. The plaintiff did attend the hospital that day and waited to have the fluid drained from his lung. 15. He was finally told that the procedure was bigger than had previously been understood and that he needed to be admitted to the hospital for the procedure to occur. He was sent home and was told to come back to the hospital on 5 December 2018. At that point in time the plaintiff was very anxious about what his diagnosis may be. 16. The plaintiff was admitted to Sutherland Hospital on 5 December 2018 and underwent a pleuroscopy, a talc pleurodesis and a pleural biopsy. 3 litres of fluid were drained from his lung and a further 550 mls were drained over the next 24 hours. 17. Subsequent to the surgery the plaintiff was told that he had mesothelioma and that his prognosis was 'bad'. 18. The plaintiff remained in Sutherland Hospital until 8 December 2018. 19. The night after the surgery, the plaintiff was found wandering around in another ward in the hospital and was confused and delirious. As a consequence a CT scan was taken of his brain, but it returned a normal result. 20. Blood tests were taken which revealed the plaintiff had very low sodium levels and he was put on a fluid restricted high salt diet. 21. On 12 December 2018 the plaintiff saw an oncologist, Dr Tracey Dunlop, who recommended chemotherapy but the plaintiff decided he did not wish to have it. 22. Since then the plaintiff has continued to be intermittently confused and disoriented, and very emotional. 23. Initially after his discharge from hospital the plaintiff was very weak and had little energy and he spent most of his days resting. He has however tried to push himself to get back to dancing. He has lost approximately 20 kilos in weight and is forcing himself to eat to try and build his strength. 24. The plaintiff has become increasingly short of breath and now is unable to walk more than a few paces without having to rest and break. 25. The plaintiff has not been able to go dancing for some months now. 26. The plaintiff is finding it difficult to sleep and gets up a number of times during the night to go to the bathroom and has difficulty going back to sleep. 27. The plaintiff has four children, a son Stephen who lives in Queensland, a son Ian who lives on the Central Coast, a son Adam who lives in Glenfield and a daughter Karen who lives in Loftus. His children have, to some extent, been involved in his care. 28. After the plaintiff was discharged from hospital in December 2018 he was unable to live on his own. He therefore moved in with his friend, Pamela McKerral, to be cared for by her. 29. Ms McKerral gave evidence before me on the first day of the hearing. She indicated that she had been the plaintiff's dance partner for approximately 8 years and they used to go dancing and have dance classes together sometimes 3, 4 & 5 nights per week. They also went walking along the boardwalk, and both had a keen interest in art. 30. Prior to the middle of last year Ms McKerral said that the plaintiff was very fit and he would want to dance every set. It was a wonderful activity that they enjoyed together and they had made a number of friends at the various dancing venues they attended. They would sometimes have a meal before the dancing started and they assisted each other by driving each other to the venues and sometimes staying at each other's home if they were closer to the venue that they were attending on the evening in question. 31. The plaintiff continued to reside with Ms McKerral until he was abruptly moved from her home at 3:00pm on Friday 17 May 2019. Ms McKerral had not seen him since that day. 32. Prior to the plaintiff being moved out of Ms McKerral's home she indicated that she and her daughter, who is a nurse, lived with her for part of that time, provided extensive care and attention to the plaintiff, as he was virtually unable to care for himself. 33. Ms McKerral shopped and cooked for the plaintiff, prepared all of his meals, attended to all of his personal needs including showering, bathing and shaving and drove him to and attended all medical appointments that he required through the latter half of December 2018 up until a matter of days ago. As the plaintiff was having difficulty eating Ms McKerral would cut his food up into small pieces and attempt to get him to eat as much as possible. 34. In more recent times the plaintiff has often just masticated the food over and over in his mouth until a point in time when he would spit it out. On other occasions the plaintiff wouldn't eat his own food but would take food from Ms McKerral's bowl and eat that. Ms McKerral assisted in every way she could to try and get the plaintiff to eat and drink as he continued to lose weight. 35. Ms McKerral gave evidence before me in a very honest and straightforward manner. I was particularly struck by the way she detailed the symptoms that the plaintiff was experiencing and the high level of personal care that he required. Ms McKerral spoke most respectfully of what the plaintiff was suffering and her attempts to assist him. 36. It is very obvious to me that Ms McKerral and the plaintiff have an enduring friendship forged by their dancing but also their love of art, and that Ms McKerral has a very deep emotional connection with the plaintiff and is very distressed not simply by his illness, but by the fact that he has been removed abruptly from her home and placed in accommodation to which she had not been invited to attend. Quite simply, she misses the plaintiff and his company. 37. The plaintiff's daughter, Karen Felton, gave evidence and indicated that she was born on 24 March 1958 and was a former web designer. She detailed her childhood years living with her mother and father and living overseas as a consequence of her father's employment and study endeavours. 38. Mrs Felton indicated that her mother and the plaintiff divorced in approximately 1982/1983 and her father then moved to Yowie Bay for a period and then bought a home in Paddington. The plaintiff lived in Paddington for some time and then bought an apartment in Cronulla. Mrs Felton detailed that the apartment in Cronulla in which the plaintiff lived prior to December 2018, was a very small one bedroom apartment which was on the second floor but was actually on the third level of the building which made it very difficult for him to get up and down the stairs. The unit also had a shower over the bath which with the plaintiff's current condition he would not be able to utilize. 39. Prior to the plaintiff's illness Mrs Felton indicated he was very independent, was completely self-sufficient and that he was a very energetic man who enjoyed his dancing and was very light on his feet. He went for long walks, some 5 & 6 kilometres, at least 3 times per week and was out dancing on many evenings per week. 40. Mrs Felton gave evidence that the plaintiff was a health food fanatic and was very particular about maintaining his healthy nutrition. Mrs Felton also indicated that the plaintiff was very involved in art groups and was a very productive artist. Mrs Felton produced a short video which displayed a number of magnificent paintings and ceramics that the plaintiff had created. The plaintiff was continuing all of his artistic endeavours until 2018. Mrs Felton also identified two pieces of art that were in the apartment that the plaintiff is now living in as works he had done which had been displayed in a number of exhibitions. 41. It is obvious to me, having regard to the art works that I have been shown, that the plaintiff was a very talented artist across a number of mediums and I accept that this was something that he very much enjoyed prior to the onset of his illness. It was also something that he had in common with Ms McKerral. 42. Mrs Felton's evidence was that to her observation the plaintiff is now very anxious and does not want to be left alone as he is fearful that he will not know where he is or that he may have a fall. She says that he panics a lot even if she steps out of the room to go to the bathroom or to take a shower, he will call for her as he does not want to be away from anybody for any period of time. She has indicated that he could not walk very far and was only able to take a few steps at a time. He feels he is a danger to society (see Ms Cogger's report, p.8). 43. Mrs Felton indicated the reason that the plaintiff had to move into the serviced apartment he currently is in is because he had become unmanageable for Ms McKerral as his needs were too great. For the last few nights that the plaintiff has been in the serviced apartment, nurses have come in from 8:00pm until 8:00am to care for the plaintiff which includes bathing, dressing, preparing meals and drinks and attending to him throughout the night. 44. Mrs Felton gave evidence that there had been some suggestions some months ago that the plaintiff ought go into palliative care and that was what the family were attempting to do, however the plaintiff didn't cope with the concept of moving into care, and it is his daughter's belief that it would kill him if he were to have to move into a nursing home. The transcript records as follows: (Transcript p.10) 'Q. From your perspective and your assessment of your father, if he was to be put ‑ or it is said that he should be in a home. A‑‑‑We feel that he would ‑ he thinks that if he goes into a home he's going to be liquidated. I think it would kill him.' 1. As the plaintiff became so distressed at the idea of moving into a nursing home, Ms McKerral again offered to care for him in her home. 2. This proposition was also put to Associate Professor Caplan as follows: (Transcript p.38) 'Q. Here we heard evidence this morning that Mr Phillips, if he was put in institutional care, would feel like he is being liquidated. That is what it means for him, and again, that is something you would understand. A‑‑‑Almost every person that we send to a nursing home says, "But I don't want to go to a nursing home." Q. They do not want to go, and many just completely give up if they do ‑ many is an exaggeration. It happens. A‑‑‑It is recognised that some people do give up when they go into a nursing home.' 1. As the demands on Ms McKerral were becoming more and more onerous, and I note that she herself suffers some significant health problems with her hip and knees, the family arranged for more help to be provided. 2. The demands on the plaintiff's daughter are also significant as she cares for children two days per week and unfortunately her husband had a heart attack the night before the bedside hearing and she needed to care for him. 3. The plaintiff's daughter has witnessed him in a delirious state on occasion when he was staying with her. He would wander around and urinate all over the house. That was about 2 months ago and the plaintiff stayed with his daughter so that Ms McKerral could have a break. 4. The plaintiff's daughter indicated the reason she moved him into the apartment was that she wanted him to have a break and she wanted Pamela to have some respite. 5. It is not anticipated that the plaintiff will return to his home as it is obvious that he needs a high degree of care. 6. Associate Professor Gideon Caplan gave evidence before me on the first day of the trial. Associate Professor Caplan is a highly qualified expert geriatrician who examined the plaintiff in February this year. He was a very impressive witness and I have absolutely no hesitation in accepting his evidence. The main thrust of the questions asked of Associate Professor Caplan in the letter qualifying him was whether there were any identifiable cognitive impairments that the plaintiff has and the effect that they may have on his prognosis. 7. In relation to the question of prognosis Associate Professor Caplan indicated that the measure of the plaintiff's life expectancy was to be calculated with regard to the trajectory of his condition. He said that as the plaintiff appears to have deteriorated quite rapidly, that is suggestive of a shortened prognosis, probably of a matter of months. 8. More importantly, Associate Professor Caplan was cross-examined extensively about whether or not the plaintiff suffered from delirium, depression or dementia and the circumstances in which any or all of those conditions could have arisen and, if there was a synergistic effect with his diagnosis of mesothelioma, and if the pleurodesis may have exacerbated his condition. He stated as follows: 'Q. Page 6, I am looking at Professor, it answers some questions that were put to you. A‑‑‑Yes. Q. You indicate in the fourth line under (a) that "cognitive impairment can be due to three clinical conditions; a dementia delirium or depression". A‑‑‑Yes. Q. I take it in relation to each one of those, that being a cognitive impact of any one of those is very similar. A‑‑‑Similar but there are other symptoms which occur at the same time which allow one to identify one or the other, but as I said you can have two or even three of these conditions at the same time occurring in the same patient. Q. You say, "Delirium particularly if it is severe or prolonged can trigger the onset of dementia or aggravate it or accelerate the progress of pre existing dementia however judging by the record from St George Hospital the delirium was neither severe nor prolonged. This is likely why Dr Julian thought he had pre existing dementia. It is very unusual to develop this degree of cognitive impairment due to dementia rapidly". A‑‑‑Yes. Q. "In addition the cognitive changes Mr Phillips have developed are moderately severe loss of activities of daily living function, unable to continue living independently from the time of admission to the Sutherland Hospital. This seems to have happened too quickly to blame on dementia or his mesothelioma". A‑‑‑In 95% or 99% of cases of dementia, that's the case, yes. Q. So you formed the opinion that the presentation was more consistent with a depressive pseudo dementia. A‑‑‑Yes. Q. And that his loss of cognition was secondary to that. A‑‑‑Yes. Q. And here this morning, her Honour has heard evidence from people close to him that the hospital admission and I think probably the notes you have seen indicate the delirium that he suffered from as far as those that were close to him was like the turning off of a switch as far as his cognition is concerned. A‑‑‑Mmm. Q. In those circumstances accepting that history, would you agree that the likelihood of the problem that he's had since that time is the hospital admission and the general anaesthetic causing the pseudo dementia. A‑‑‑Part of it is also the news, being given the news that it is ‑ you know that the biopsy shows mesothelioma, has an impact on the person as well, a huge impact on the person as well. Q. What is the sort of impact that occurs with such news insofar as the diagnosis that you have made. A‑‑‑Well, in some people it can make them depressed very rapidly. People's ability to handle that kind of information varies tremendously. Some people seem to ‑ it seems to be like water off a duck's back, and other people can be floored by it. Q. And her Honour has heard evidence that the plaintiff is a man who's been described in his life as an atomic engineer, as a perfectionist who ‑ I think you have read it, but was for his age incredibly active, painting and the like. A‑‑‑Yes. Q. Are those type of people with those characteristics more vulnerable than not to this sort of news. A‑‑‑They are. Well, people who are very obsessive, which those kind of engineers are, are vulnerable to depression. People who are perfectionists.' 1. Associate Professor Caplan further stated as follows: (Transcript p.41) 'Q. You spoke about the facilities that are best available for him, just as far as bathroom facilities. If the evidence to be adduced is that it is a very large bathroom, open shower, easy access for schools and the like, but also is the sort of facility that should be available for bathing. A‑‑‑If you can replicate a nursing home type of facility in another place, that makes it much better, that's appropriate, the physical facility and the care.' 1. Katerina Rhonda Spurway was also called to give evidence on the first afternoon of the trial. Her report on the letterhead of her Agency Nurse Watch, was tendered and became part of the Plaintiff's Tender Bundle. 2. Ms Spurway was a very impressive witness and detailed her history as having been a nurse for 35 years, a nursing adviser to the Department of Health and now running a private agency providing private nursing services, with vast experience of palliative care. 3. Ms Spurway had nursed the plaintiff on the previous night from 8:00pm until 8:00am the next morning. She gave very forthright evidence about the plaintiff's state, about the food that he continually masticated and then spat out on the Sunday night but the fact that he had had a good breakfast of Weetbix, fruit and Sustagen on the Monday morning. She indicated that he seemed robust from the ingestion of his breakfast and was quite co-operative in assisting her to shower and dress him for the day. She admitted that understandably, it is a nice day for a nurse to have it start off so well. 4. Importantly, Ms Spurway gave evidence about the dimensions of the Quest apartment in which the plaintiff is currently residing. She indicated that the distance from the bed to the bathroom was some 4 paces which was very convenient as it was not too far for someone who became breathless easily. She then indicated that there was a slope in the bathroom to the shower which had handrails, and the toilet was also at the appropriate height, and allowed for ease of toileting and showering of the plaintiff with the assistance of a nurse. She indicated that whilst there was additional equipment that could be required for nursing a person with the plaintiff's disabilities could easily be hired and installed in the apartment (see Transcript p.45 l.44-p.46 l.15). 5. The tenor of Ms Spurway's evidence was that the same care that would be provided to a plaintiff in a residential care facility could be provided to the plaintiff in the Quest apartments, but more likely the care in the apartment would be better as it would be on a one on one basis and all activities could be performed in a timely fashion commensurate with the plaintiff's state of physical and mental health. 6. Ms Spurway gave evidence of her experience in observation of nursing homes and facilities for at least the past 4 years and was asked the following question (see Transcript p.48 l.16): 'Q. Based on that experience, are you able to give an opinion to her Honour as to the apartment where Mr Phillips is now located compared to an aged care facility. A‑‑‑I can, in terms of the layout. As you walk in the front door you have got a galley kitchen on the left. The room on the right, which is very good in terms of getting your client in if they need to go to the bathroom or get changed in their room, that component is self‑contained. The kitchen is on the left, so it is open plan, so you can see what is going on. There is not too much clutter, and then to the left you have got the sitting area with a view out there, so you can tell between night and day, and then the small seating area. So for a small space, it works well, in terms of moving and vision. Q. Was there anything last night in relation to Mr Phillips getting out of bed. A‑‑‑There is a certain time that he ‑ well, he is not unsettled, but he's a wanderer. So having that vision with the unit ‑ I was sitting in there and I was able to see him come out of his room to the kitchen, where he was. There's not a blind spot in terms of hearing and seeing, I guess, from my experience.' 1. Ms Natala Cogger, Occupational Therapist, gave evidence before me on Day 2 of the trial. Her report dated 6 March 2019 was taken into evidence and became 'Exhibit J'. 2. Ms Cogger had the opportunity to examine the plaintiff at his apartment in February 2019. Of note, at the time of that examination she noted that the plaintiff was physically quite able, was not in any pain, his fatigue was relatively low and his shortness of breath was minimal on exertion. She surmised that he was physically capable of doing things. 3. Ms Cogger was asked by Senior Counsel for the plaintiff about the recommendations that she made with regard to the Cronulla apartment as opposed to that of an aged care facility which resulted in the following dialogue: 'Q. You recommended the Cronulla apartment. A‑‑‑Yes I did. Q. Why not an aged care facility. A‑‑‑I didn't recommend an aged care facility based on his needs at the time of my assessment, that he was very physically able, his mental health, just his affect in the assessment that I had he was very withdrawn. Aged care facilities in my experience working at St George Hospital when we were trying to place people within a short term timeframe, there's usually four to a room and there's very few single rooms that are available unless you are willing to wait several months for that to happen, and I felt that for him being in a four bed room with three other people that are at varying levels of function would impact on him further. I sort of felt that he was such a fiercely independent man before his diagnosis. He was very active in the community and he was someone that impressed to me as a very stoic sort of person who had always just done his own thing. Being put into a nursing home placement where he has to also conform to their timelines there, arrangements of when he has to shower, when he has to eat his meals, when he has to do certain things and he has very little control over that. So whereas the current arrangement on my recommendations at the Quest Apartments allows him to be cared for within his care needs and depending on the time of day as to if he wants to take a little bit longer to get ready in the morning or have his breakfast he can but he's got the staffing to support him, to regularly encourage him to eat, that he's got the staff too if he wants to go down to where his familiar environment is and go down to Cronulla, it's an easy access down to the area there where he can ‑ depending on his level of physical ability at the time, even if it's being wheeled down in a wheelchair but it's all ‑ from my perspective that would be the best environment for him to be in, to maximise that quality of life for him as his disease progresses. Q. There was evidence yesterday from the nurse who cared for him on Sunday night and Monday morning that quite deliberately two hours was spent getting him dressed, preparing him, getting his meal, putting him in a physical and mental position to be right to face the day. That sort of care in your experience in an aged care facility, how do you compare them.' 1. Ms Cogger gave evidence about trying to entice people like the plaintiff to eat, as they often change their minds about what they wanted to eat and when, and she indicated that a one-on-one care in those circumstances would be far superior as a person in the plaintiff's position is unlikely to receive such intensive care if he was in a care facility. 2. Ms Cogger was also asked about the plaintiff's mental state suggesting that he may have suffered from a depressive pseudo dementia as follows: Q. Professor Caplan gave evidence in Court yesterday to the effect that in his opinion as a consequence of the surgery and the diagnosis provided to the plaintiff in December of last year, that he suffered from a depressive pseudo dementia and that is a cognitive loss with low mood, sleep disturbance, depression, poor appetite, he referred to it as major depression that could disturb appetite, sleep pattern and in those circumstances combined with the physical deterioration that occurs with mesothelioma, how important from an occupational therapy point of view is care. A‑‑‑It's crucial, because his mental health has already had such an impact on his ability to engage in everyday life as it is. He's lost complete confidence in himself and he feels like ‑ well, as he reported to me, sort of he feels that he's a danger within the society and environment and he's at risk, so from my perspective it's as his physical condition deteriorates, if his mental health is already impacted then that's going to be further impacted so it's important that where possible we can try and manage his mental health side to support him as the physical side starts to deteriorate. Q. In that sense of care, there's also evidence of the need or reassurance ‑ that a constant presence of reassurance again in the care that you have recommended, is that something that you have taken into account and would be provided by the sort of care that you have recommended. A‑‑‑Yes.' 1. Ms Cogger was a very impressive witness who gave her evidence in a very forthright manner and when she was asked questions about matters that she felt were outside her area of expertise she clearly stated so. 2. I have absolutely no hesitation in accepting all of Ms Cogger's evidence. 3. The prevailing theme of Ms Cogger's evidence however was that all of the facilities that were available in a nursing home could be created in the Quest apartment and that the plaintiff's daughter, Mrs Felton, and his friend, Ms McKerral, had both indicated that they would assist in caring for him if professional nurses were also available, in addition to family and friends of the plaintiff. In those circumstances he would be cared for on virtually a one on one basis which not only assists in ensuring his nutritional needs are met but also is far superior in terms of his mental health and degree of comfort and happiness.