Hicks v Amaca Pty Limited [2010] NSWDDT 16

Dust Diseases Tribunal of New South Wales

CITATION : Hicks v Amaca Pty Limited [2010] NSWDDT 16

PARTIES : Grahame Hicks Amaca Pty Limited

MATTER NUMBER(S) : 55 of 2010

JUDGMENT OF: Kearns J

Asbestosis :- dust diseases quantum CATCHWORDS: general damages Planet Fisheries past and future care provisional damages

LEGISLATION CITED: Civil Liability Act 2002 Dust Diseases Tribunal Act 1989

Griffiths v Kerkemeyer (1977) 139 CLR 161 Watts v Rake (1960) 108 CLR 158 CASES CITED: Purkess v Crittenden (1965) 114 CLR 164 Planet Fisheries Pty Limited v La Rosa (1968) 119 CLR 118 Markland v Sifc [2001] NSWDDT 19 Doughan v Amaca Pty Limited [2010] NSWDDT 13

DATES OF HEARING: 11/10/2010; 22/11/2010; 23/11/2010

DATE OF JUDGMENT: 30 November 2010

Mr P Semmler QC with Mr S Tzouganatos, instructed by Turner Freeman, appeared for the plaintiff LEGAL REPRESENTATIVES: Mr J Sharpe, instructed by Ellison Tillyard Callanan, appeared for the defendant

JUDGMENT:

Introduction

1. The plaintiff has asbestosis. It was caused by the defendant's negligence. He seeks damages. Quantum is the only issue.

Heads of damage

2. The plaintiff seeks damages under the following heads:

(a) general damages; (b) interest on past general damages;

(c) loss of expectation of life;

(d) past Griffiths v Kerkemeyer (1977) 139 CLR 161 damages;

(e) interest on past Griffiths v Kerkemeyer damages;

(f) future Griffiths v Kerkemeyer damages. General damages

3. The defendant submitted I should award about $80,000. The plaintiff submitted about $250,000. I think both submissions are off the mark.

4. Assessment of the plaintiff's damages requires me to determine, amongst other things, the extent of the plaintiff's past and likely disability. This requires an assessment of his evidence and the medical evidence.

5. The plaintiff's evidence is not entirely satisfactory. Parts of his evidence were internally inconsistent and also inconsistent with contemporaneous histories. Possibly the best example of this is his evidence and histories related to smoking. His evidence PX 1 para 15 was that he smoked less than 10 cigarettes per day from 1964 to 1974. This was elaborated on in cross-examination. He said that some days he might not even smoke and that he would not have smoked more than a packet a week, that is, about two to three cigarettes a day. His most recent contemporaneous histories were to Professor Breslin on 25 November 2009 and to Dr Johnson in July 2010. They were that he smoked up to six cigarettes a day from age 19 to 21 (1963 to 1965) PX 4(1) or between one and four cigarettes a day from 1964 to 1974 PX 3. He told the Dust Diseases Board in February 1987 that he smoked 20 cigarettes a day for 15 years. That history was repeated on many subsequent Board examinations. I accept that he probably did not give the Board this history on each of those occasions. I consider it probable that, it being a matter of past history, the Board repeated the recording of the history on most, if not all, the subsequent visits. The fact remains that the plaintiff did tell the Board in 1987 that he had smoked 20 cigarettes a day for 15 years. I reject his evidence that this history was not correct and that he meant to tell the Board he smoked a packet a week. He told Dr Gardiner in June 2001 that he smoked 20 cigarettes a day from 18 years of age (1962) to 1973. Again, I reject his evidence that he was smoking only a packet a week when he told Dr Gardiner he was smoking 20 cigarettes a day.

6. Mr Semmler QC submitted that I should not be concerned about these inconsistencies in the plaintiff's smoking history as it is well known that, for fear or some other good reason, patients will not often give doctors an accurate smoking history. That submission overlooks the fact that, recent histories to Professor Breslin and Dr Johnson aside, it is not the smoking histories that are inaccurate, it is the plaintiff's evidence. His evidence-in-chief was that he smoked not more than 10 cigarettes a day. That underestimates his smoking by about half. Then in cross-examination, he reduced it to about three cigarettes a day. At 20 cigarettes a day, which I accept, this evidence cannot be accepted and nor can his history to Professor Breslin or Dr Johnson. These histories are so wrong that, in my view, they cannot be explained as a matter of simple oversight.

7. There are other aspects of the plaintiff's evidence which are unsatisfactory and some of which I shall need to refer to in the course of these reasons. The result is that I must treat the plaintiff's evidence with some caution. Having said that, however, I must consider his evidence against a background of some objective or indisputable facts as follows:

(a) the plaintiff has asbestosis;

(b) it is progressive. It has progressed and it will progress;

(c) the plaintiff has a resultant whole person impairment assessed, on medical tables, at 10-25%;

(d) the plaintiff has a resultant cough.

Against these matters, I consider the plaintiff's evidence.

8. The plaintiff was born on 16 July 1944. He left school at 16 years of age without having obtained the intermediate certificate. He married in 1968. He has three children ranging in age from 41 to 37 years. He has seven grandchildren ranging in age from 13 to 2 years.

9. The plaintiff gives detailed evidence about his employment conditions. Considering the unanimity in the medical evidence, it is not necessary to analyse those conditions. It is sufficient to note that he worked in an extremely dusty environment from 29 January 1963 to 23 July 1964.

10. From about 2001, the plaintiff noticed that he was short of breath and fatigued on exertion, particularly when he walked up stairs or inclines. He remembers feeling out of breath when he was unloading trucks in the late 1990s. He started to cough on a daily basis in about 2000. The cough has increased in severity since then. Since 2001, his daily coughing fits have occurred more often and with greater intensity. Sometimes this causes dizziness and vomiting. He says that the coughing causes him to vomit about twice a week. This is described as disturbing and embarrassing when it happens in public places. The coughing fits interrupt his night time sleep and since about 2005, his wife has slept in a different room due to his cough.

11. The plaintiff saw his general practitioner, Dr Earlam, in about May 2001 about his shortness of breath and cough. Dr Earlam referred him to Dr Gardiner who examined him and arranged testing with the Dust Diseases Board. The Board informed the plaintiff that he had asbestosis. He was shocked and since then has worried about his condition.

12. The plaintiff says that his worry and anxiety about his condition has been made worse because his breathlessness has gradually increased since 2001. Since then, he has experienced fatigue, tiredness and a lack of energy causing him frustration. By the end of 2005, he noticed that carrying shopping bags up the front stairs into his house was difficult because he was out of breath. He cannot walk as far as he used to without stopping. As at October 2010, he says he could walk approximately 100 metres on flat ground before he is breathless and has to stop. When walking up hills and inclines, he has to stop regularly to catch his breath. The breathlessness brings on coughing fits and when he coughs, he gets more breathless. When he bends over, he is breathless and coughs. Bending over to dry himself after a shower causes him to cough and puff.

13. As a result of his coughing, the plaintiff does not go out very often. He has gradually withdrawn from recreational and social activities. Prior to 2001, he used to enjoy restoring old cars and participating in vintage car fairs and exhibitions. He is no longer able to enjoy his car restoration hobby because of coughing, increasing shortness of breath and fatigue on exertion. Prior to the onset of his condition, he used to take long drives with his wife in a campervan. He now uses it rarely and only for short trips. He is concerned that he may have a coughing fit and lose control of the vehicle. The plaintiff says that his breathlessness and cough have stopped him from doing things with his grandchildren such as playing and being active with them and making wooden horses for them.

14. The plaintiff says he is getting up later each day and napping at lunch time. He goes to bed earlier, but does not sleep well. He feels idle and down.

15. The plaintiff says that because of his breathlessness his wife has mown the front lawn since about 2001. I do not accept that the wife has had to mow the lawn since 2001. This is inconsistent with other parts of his evidence T6.10. It is also inconsistent with the wife's evidence and the history to Professor Breslin.

16. Prior to the onset of his asbestosis, breathlessness and cough, the plaintiff says he did most of the gardening which included potting plants, weeding and hosing. Since about 2001, his wife has gradually taken over most of the gardening, blowing the leaves, washing the cars and cleaning the shed, yard and barbeque area.

17. In relation to the activities in gardening, blowing leaves, washing cars, cleaning the shed, cleaning shower screens and windows and taking out the rubbish, the plaintiff gave oral evidence about how these matters affected him. In most instances, it was a case of bending or being exposed to dust causing him to become breathless and to cough. He said that his wife had been washing cars and cleaning the shed for about the last five years. He said that he stopped cleaning shower screens and windows about five to eight years ago.

18. The plaintiff's evidence as to putting out the rubbish bins was variable. He said that he could not do it and his wife did it. He said that the last time he did it was a few years ago T19.05, that he has done it rarely since and that he did it when his wife was unwell. His wife had an operation in 2007 and was out of action for a time. She was not assisting the plaintiff then. The plaintiff said that he was still putting the rubbish out when he saw Professor Breslin in November 2009.

19. The plaintiff acquired a ride-on mower in March 2005. The evidence which I accept is that he was using the hand mower up until then. He still uses the ride-on mower. Again, I accept the history given to Professor Breslin that he was using the hand mower when he saw him in November 2009.

20. The plaintiff is aware that his asbestosis has progressed. He has been told that it will probably kill him. He is worried about his wife, children and grandchildren. When his condition deteriorates, he will stay at home with his wife who will look after him with outside help where necessary.

21. The plaintiff has had other health issues. He fractured a leg in 1974 and spent three months in hospital. He has had gout from 1998. He had an anterior cruciate repair in 2000. Dr Hoe DX 4 says that the plaintiff should avoid kneeling and squatting. In 1994, he injured his back. He was off work for a few weeks. He returned to work and worked until 1997. He then went on New Start allowance and obtained a few casual jobs until 2000. He then went on a disability pension because of his back. He obtained the age pension when he turned 65. He has a past history of asthma. For his back, he takes anti-inflammatory medication every six months or so. He says it does not stop him doing his normal daily household activities. He agreed that he had difficulty bending and twisting and lifting anything heavy for the past 12 years.

22. The medical evidence does not suggest that the plaintiff's breathlessness and his cough have a cause other than his asbestosis. Accordingly, things like smoking, asthma and reflux may be ignored. There are, however, a couple of matters of relevance and they concern the plaintiff's neck and back and also his knee. Mr Semmler submitted that none of these matters was of any relevance because under Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164, the defendant had a legal and evidentiary onus to show that the plaintiff's disability was a result of these conditions. When, in response to the submission, I said "Evidentiary", Mr Semmler added that the defendant needed to prove on the balance of probabilities that what it contended for was in fact the case. This submission ought not to have been put as it is well known that the onus that these cases speak of is an evidentiary and not a legal onus. Ultimately, the submission was that it did not matter anyway, because the defendant had not satisfied the evidentiary onus. In my view, this submission is not well-founded. The defendant elicited from the plaintiff that for the last 12 years he had difficulty because of his neck and back with bending, twisting or lifting anything heavy. The defendant also tendered from Dr Hoe evidence that the plaintiff should avoid kneeling and squatting because of problems with his right knee. Contrary to the plaintiff's submission, the defendant did get to first base on these matters and this evidence needs to be considered with other evidence in determining what activities the plaintiff has been deprived of because of his asbestosis as distinct from his other conditions.

23. I turn to the medical evidence.

24. Despite the contest over the medical evidence in this case, I consider there was much consensus and very little difference between the medical opinions of the expert witnesses. That might seem a strange view when one opinion is that the plaintiff will eventually need 24 hour care and another is that he will need little care. If there is a difference, and I shall come to it, it is not a difference of medical opinion, but a difference as to what will be appropriate to satisfy the plaintiff's needs in the last months of his life. There is no significant difference in the medical opinions as to what the plaintiff's condition will then be. Given that, how the plaintiff is then to be treated is not really a medical question in this case, but a question of what I consider to be reasonable.

25. What is clear, or likely, from the medical evidence is the following:

(a) the plaintiff has asbestosis;

(b) it is relatively mild;

(c) it has progressed and will continue to progress;

(d) it is likely to progress slowly. In this regard, to the extent that there is any conflict, I prefer the analysis of Dr Gardiner as to the rate of progression. The progression has been determined on the basis of a deterioration in the plaintiff's DLCO. Dr Gardiner has pointed out that this is not done accurately by comparing raw figures. Adjustment should be made to use corresponding predicted values when comparing tests. When this is done, his analysis demonstrates that the rate of decline is not as dramatic as it would appear at face value. From 2003 to 2009, it becomes a drop from 75% to 63% rather than from 75% to 55%. Dr Gardiner was not challenged on this. It is still a significant drop, but is more in keeping with what has been the slow rate of progression. I accept that the rate of progression is likely to be slow. I do not understand other medical opinion to contradict that;

(e) the plaintiff has, on medical tables, a whole person impairment in the range of 10% to 25%;

(f) the extent to which the asbestosis has subjectively affected the plaintiff, and does so, is dependant on the extent to which I accept his evidence;

(g) as the plaintiff's condition deteriorates, he will become more disabled. Professor Breslin describes his likely prognosis as follows: "His asbestosis has shown progression radiologically over the years and further progression leading to early death is likely. His mode of death will be as a consequence of progressive fibrosis in his lungs leading to stiffer lungs unable to satisfactorily oxygenate his blood. Progressive dyspnoea and worsening hypoxaemia will lead to less and less mobility, increased need for supplemental home oxygen and increased need for assistance with his activities. Terminally, over his last few weeks or months he will be bed bound and unable to do anything for himself and he will be prone to respiratory infections and pneumonia. Worsening right heart failure is also likely with peripheral oedema. He will die in respiratory failure." PX 4(2)

I accept that evidence.

26. Professor Breslin goes on to set out how the deterioration in the plaintiff's condition will lead to the need for assistance. He says,

"Over the next 5 years from now I do not believe he will require any assistance from his asbestosis point of view. Then in 1. The period 5-10 years from now he will need 1-2 hours per day assistance with dressing and undressing, showering, toileting, driving him to appointments and tests, collecting his scripts etc. 2. The period 10-13/15 years from now this assistance will increase gradually to 3-5 hours per day. In the last 6 months or so this gratuitous assistance will increase to essentially 24 hours per day.

3. Over this last 5-15 years from now his wife will require respite care for initially 3 hours per week, later for 5 hours per week. She will also require Home Care for 5 hours per week in the last 8-10 years of his life so that she can spend more time in gratuitous assistance to her husband.

4. For the last 6 months of his life he will require nursing Home Care to supply specialised care for between 1 and 5 hours per day."

27. Dr Gardiner says the plaintiff will become increasingly disabled by his breathlessness. He refers to the need for assistance with showering and dressing, but does not specifically say when this will occur. I infer from the context of the paragraph in which he notes this that the need will arise in 10 years' time. When the plaintiff gets to this point, he will have significant disability.

28. When Dr Gardiner was cross-examined about the number of hours of assistance the plaintiff would need he would not agree with many suggestions put to him. This was one of several areas of attack made by Mr Semmler in his submissions as to alleged partiality and bias on the part of Dr Gardiner. I reject Mr Semmler's submissions as to Dr Gardiner's alleged partiality and bias and his submission that he proceeded as an advocate against the interests of the plaintiff, his former patient. Mr Semmler cross-examined Dr Gardiner along the lines that if the plaintiff needed assistance with dressing and showering, there would be many other activities beyond him for which he would need assistance. Dr Gardiner did not agree. The disagreement was not based on a view that the plaintiff would not be disabled. It was based on a view that there were different ways in which the plaintiff's disability could be accommodated. One way was that the plaintiff could be in a place of care rather than being at home. Another was that if he was cared for at home, he could be accommodated with appropriate planning by providing everything at his fingertips. If, for example, he was chair-bound, he could be provided with water, snacks, lunch, electric jug, telephone and, no doubt, a number of other facilities. Dr Gardiner did not disagree with the suggestion that the plaintiff would be significantly disabled in the last few months of his life. The disagreement went to how that disability could or should be accommodated.

29. A measure of how serious Dr Gardiner thought the plaintiff's condition is likely to become was given in his evidence about his experience with his patients. The following exchange T100.43 – 101.02 occurred in the course of his evidence.

Q If you assume that he is going to live the rest of his life at home, on that scenario is he going to need round the clock assistance at some stage in the end stages of his disease. Correct. A---No. Most people, although they may desire to do that, their families find out very quickly that they can't provide - even with assistance it becomes overwhelming and distressing. You can't expect family members, even with paid staff coming in at certain times, to do what teams of nurses do in eight hour shifts around the clock and most families get battle fatigue and with great reluctance eventually the patients go into some form of care. Q. Do you think that is likely to happen in his case. A---Probably. Q. So what you are saying is that at some stage his need for assistance will be so great that it cannot be met by family members. A---Correct.

30. Dr Gardiner very specifically speaks of around the clock care being available here. The difference is that he says it will not be at home. I accept the unchallenged evidence of the plaintiff and his wife that it will be at home.

31. In disagreeing with Professor Breslin's view of the need for 24 hour care, Dr Gardiner said T105.07 - .23,

A---Yes. Most people when they're so disabled from any of these terminal lung diseases spend a lot of their time in chairs or in bed, and don't need much help at all, except when they want to get out. Q. I was going to come to that. Sometimes I take it these people can get to a stage where they may need assistance with dressing and showering, assistance getting to the toilet. A---Yes. Q. Assistance getting out of bed to get to the toilet, assistance getting out of a chair to get to the toilet. Do they in effect spend their life, subject to when they may go out, but spend their life at home between a bed and a chair. A---Yes. Q. And what I am wondering is this, that if you are in a chair with nothing around you and you have not been covered for this, and you want a glass of water how do you go about getting it. A---Well, people - some people go to work still and they leave their husband a chair, they have a jug and - Q. Leave the water there. A---They give them a cut lunch, leave it all there within reach, the television there. Q. Because of the difficulty the person would have being able to get up and do it himself. A---Of doing it themselves. Q. Or if he wanted to make a cup of tea for example. A---He has to boil the jug at his elbow.

32. It is clear, in my view, that Dr Gardiner is saying that the plaintiff could become quite disabled, bur arrangements can be made to have facilities at his fingertips so that there is no need for 24 hour care. In my view, this evidence does not suggest any partiality on the part of Dr Gardiner. However, it is an approach that does not take account of a number of matters.

33. It does not deal with the situation if there is a fire or other emergency. It does not deal with how the plaintiff could answer a knock at the front door. It does not deal with the case of the plaintiff being on his own inside and wanting to go outside. It does not deal with all the plaintiff's toileting needs. A urinary bottle will not cover that. It denies the plaintiff a quality of life and dignity to which he would have a reasonable expectation. It, in effect, leaves the plaintiff alone in a chair to breathe and carry out whatever activities have been provided for him at his fingertips.

34. For these reasons, to the extent that there is any real difference, I prefer the view of Professor Breslin when it comes to assessing what the plaintiff's needs will be in the last few months of his life.

35. I am satisfied that the plaintiff's symptoms of breathlessness and cough commenced in about 2001. I think his symptoms have slowly become worse over time. Over the whole of that time, the plaintiff has been disabled by reason of his back from carrying out strenuous activities. However, this has not prevented him from carrying out most of the activities he would normally have carried out around the house. In particular, it has not stopped him carrying out the activities about which he gave evidence such as gardening and mowing.

36. There is evidence that the plaintiff became hampered in, or unable to do, a number of activities including gardening and mowing, washing cars, putting out garbage, cleaning the shed and cleaning windows and shower screens. Precisely when that occurred is not clear. It is put variously in some instances at two to three years ago, five years ago, eight years ago or even 10 years ago. I am not satisfied that there was any disability in the plaintiff for these activities before five years ago. That view is consistent with a normal exercise test in 2005. It is also consistent with the plaintiff hand mowing up until 2005.

37. I consider that the plaintiff's disability for the various activities he gave evidence about commenced in 2007. The plaintiff's wife puts the commencement of the plaintiff's disability about five years ago with most of these activities, but I think she is in error on this. About five years ago, the plaintiff had a normal exercise test. He was then still hand mowing his lawn which was reasonably extensive. His deterioration has been slow. I do not think he suddenly came to a point in 2005 from a normal exercise test and hand mowing to an inability to do tasks. That inability, occurring over the next couple of years, is consistent with the slow deterioration.

38. It is also consistent with serial contemporaneous records of the Dust Diseases Board DX 2. They record that in 2005 and 2006, the plaintiff was undertaking activities such as walking, gardening and being active around the house. From 2007, the only physical activity noted was walking. It is worth noting that in 2009 the plaintiff was noted to be able to walk at least one kilometre on the flat at his own pace. It was also noted that he had to stop for breath after walking 100 yards or for a few minutes on the flat.

39. Whilst I think the plaintiff's disability in respect of household chores commenced in 2007, I do not think that immediately extended to all chores. He remained able, for example, to take the garbage out. He gave that history to Dr Johnson and Professor Breslin and I accept it. He did this with some difficulty having to stop for breathers several times over about 100 metres. He was also doing some hand mowing, but I think it is likely that was spasmodic and carried out with breaks.

40. His cough and its consequences remain and will continue.

41. I consider his breathlessness will become worse.

42. In view of the slow progression of his disease, I think the need for personal care is not likely to arise in five years' time as suggested by Professor Breslin. I have indicated that I think Dr Gardiner's view is that it will arise in 10 years' time. Dr Johnson suggests it will arise in the last five years of the plaintiff's life. I think Dr Johnson's view is reasonable. I accept it. This would allow damages for the need for personal care for the last five years of the plaintiff's life.

43. The plaintiff's condition will continue to deteriorate until the last six months of his life when he will be virtually confined to bed or a chair.

44. Subject to some other event, he will die from his asbestosis about four years sooner than he otherwise would have.

45. Though acknowledging Planet Fisheries Planet Fisheries Pty Limited v La Rosa (1968) 119 CLR 118, Mr Semmler asked me to compare the plaintiff with the plaintiffs in Markland Markland v Sifc [2001] NSWDDT 19 and Doughan Doughan v Amaca Pty Limited [2010] NSWDDT 13. I cannot compare the plaintiff with Doughan as I am not privy to all the evidence in that case. I was privy to all the evidence in Markland as I appeared for Mr Markland. Even so, I do not recall all the evidence. In any event, I do not find comparison with Mr Markland at all useful. The plaintiff in this case cannot be compared with the pitiful state in which Mr Markland was and had been for a time before his hearing and was likely to continue in for the next two to three years. He was on oxygen almost constantly. He was barely capable of self-mobilisation. He could not come to court. The Tribunal had to take his evidence at his home. The cases are not comparable. Indeed, attempting to compare them reveals the utility of the principle underlying Planet Fisheries. Similarly, I do not find helpful the submission that this case should compared to a mesothelioma. Nor do I find helpful the submission that reminds me that the maximum figure for a most extreme case under the Civil Liability Act 2002 is about $500,000.

46. I allow $150,000 for general damages. Interest on past general damages

47. I allow interest on $50,000 at 2% per annum for 10 years, $10,000. Loss of expectation of life

48. I allow $4,000. Past Griffiths v Kerkemeyer damages and interest thereon

49. In light of findings I have made, the allowance for this should commence from 2007. I take November 2007 which is when the Dust Diseases Board revealed a change in the plaintiff's physical activity. Though the plaintiff remained capable of doing lighter household tasks such as putting out the garbage and did occasional hand mowing, the time involved in such tasks is relatively insignificant and I make no discount on that account. There was no challenge to the evidence that four hours per week was a reasonable time to allow for the performance of the tasks at issue.

50. Some time in 2007, the plaintiff's wife had a back operation and was unable to carry out the tasks that she normally did. The plaintiff said that she was out of action for about 18 months. Her evidence, which I prefer on this issue, was that she was out of action for about three months. I am not satisfied that any period she was unable to assist the plaintiff, by reason of her back condition, fell in the time after November 2007.

51. Mr Semmler assured me that the figures in the plaintiff's schedule are correct and the appropriate methodology has been used. On this basis, I allow the plaintiff the figures in appendix B to the plaintiff's schedule of damages from 17 November 2007. That allows the plaintiff $14,943.24 for past Griffiths v Kerkemeyer damages and $901.95 for interest on past Griffiths v Kerkemeyer damages. Future Griffiths v Kerkemeyer damages

52. The plaintiff's schedule claims as follows:

Period Description No. of hours per week Cost per hour Applicable multiplier Total 22 November 2010 to 2025 Lawn mowing, heavy cleaning, washing cars, gardening, shopping and property maintenance 4 $24.64 632.3 $62,319.49 2015 to 2020 Personal care and assistance 10.5 $24.64 (242.6 x .863) $54,166.60 2020 to 2025 Personal care and assistance 28 $24.64 (242.6 x .744) $124,526.70 Last six months of life in 2025 Personal care and assistance 168 $24.64 (26 x .642) $69,096.87 $310,109.65

53. At this point, it is necessary to fix a life expectancy for the plaintiff. Professor Breslin puts the plaintiff's life expectancy at between 2022 and 2024 and Dr Johnson 2022 and 2025. I take November 2024 as the applicable time.

54. The plaintiff will continue to need assistance in respect of household tasks as he has up until now.

55. So far as personal care and assistance is concerned, in light of the finding I have already made, the need for that is likely to commence five years before the plaintiff's expected death. The commencement then will be in November 2019. The need will continue until six months before the plaintiff's death, that is, until May 2024.

56. Professor Breslin says that the plaintiff's needs for personal assistance will rise from one to two hours per day to three to five hours per day before he reaches the phase where he needs 24 hour care. He does not explain why this is so, thereby making it difficult to understand and accept that opinion. It is not stated that more tasks will become beyond the plaintiff's capacity. When he needs personal care, it will be for dressing and undressing, showering, toileting, transport, etc. His breathing will deteriorate, but that does not mean that dressing and showering, for example, will take more time. The evidence does not suggest that this is so and nor is there evidence that there will be additional tasks that will need to be attended to. I propose to make the same daily allowance over the whole of the period. I think 1.5 hours every day is a reasonable allowance.

57. In the last six months of the plaintiff's life, I think it is reasonable to allow the plaintiff 24 hour care. This is, as I have indicated, not so much a medical matter, but a matter of providing care and assistance to a person who will be virtually helpless.

58. In light of the allowances I have suggested there will need to be changes to the schedule of figures in appendix C to the plaintiff's schedule of damages. The schedule, re-cast, is as follows:

Period Description No. of hours per week Cost per hour Applicable multiplier Total November 2010 to November 2024 Lawn mowing, heavy cleaning, washing cars, gardening, shopping and property maintenance 4 $24.64 598.2 $58,959 November 2019 to May 2024 Personal care and assistance 10.5 $24.64 (219 x .766) $43,401 Last six months of life in 2024 Personal care and assistance 168 $24.64 (26 x .671) $72,218 $174,578

59. At the end of Mr Semmler's submissions, Mr Sharpe submitted that the plaintiff had claimed the maximum hourly rate in his schedule and inferentially submitted that I should not allow that rate as there would be different rates for cleaners and other people. Counsel then disputed whether the legislation provided a maximum rate as Mr Sharpe submitted or a prescribed rate as Mr Semmler submitted. It does not matter. In my experience, whether the rate be a maximum or a prescribed one, it is a rate that has always been used in calculating damages for gratuitous care. In any event, if a defendant wishes to suggest that a court or tribunal ought to adopt a different rate, it ought to introduce evidence as to relevant available rates. The appropriate commercial rate is not something that is so well known and notorious that I ought to take judicial notice of it. My experience is that providers of commercial care offer rates that can be quite different for the same type of care. I allow the rate claimed by the plaintiff.

60. Summary of figures

General damages, $150,000.00 Interest on general damages, $10,000.00 Loss of expectation of life, $4,000.00 Past Griffiths v Kerkemeyer, $14,943.24 Interest on Past Griffiths v Kerkemeyer, $901.95 Future Griffiths v Kerkemeyer, $174,578.00

Total, $354,423.19 Provisional damages

61. The plaintiff claims provisional damages for the condition of asbestosis. He seeks an order that he may claim further damages should he develop any of the following conditions:

(a) asbestos related pleural disease;

(b) asbestos related lung cancer;

(c) pleural mesothelioma;

(d) peritoneal mesothelioma;

(e) asbestos induced carcinoma of any other organ.

62. There is evidence of a chance that the plaintiff will, as a result of the defendant's breach of duty, develop another dust related condition. Accordingly, s 11A of the Dust Diseases Tribunal Act 1989 is satisfied and the plaintiff is entitled to provisional damages. The damages I award the plaintiff are awarded on the assumption that he will not develop another dust-related condition.

Orders

63. There will be a verdict and judgment for the plaintiff for provisional damages in the sum of $354,423.19.

64. I specify that the dust-related conditions in respect of which an award of further damages may be made are:

(a) asbestos related pleural disease;

(b) asbestos related lung cancer;

(c) pleural mesothelioma;

(d) peritoneal mesothelioma;

(e) asbestos induced carcinoma of any other organ.

65. Some submissions were made as to costs. I shall consider those submissions in awarding costs. I make no order for costs at this stage as there may be some further submissions to be made as to costs in light of the result. I grant the parties leave to provide written submissions as to costs within seven days.

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