Borowy v ACI Operations Pty Ltd (No. 2) [2002] NSWDDT 21

Dust Diseases Tribunal of New South Wales

CITATION : Borowy v ACI Operations Pty Ltd (No. 2) [2002] NSWDDT 21 Margaret Irene Borowy as Executrix of the late Johann Heinz Jorchim Borowy v ACI Operations Pty Ltd (Originally Australian Glass Manufacturers Company) Rowley Miller Pty Ltd PARTIES : Waterside Services Pty Ltd Conaust Ltd (Formerly Irvine & McAtee Pty Ltd) Sun Alliance and Royal Insurance Australia Ltd Wallaby Grip Ltd (Formerly Meggitt Overseas Ltd) Wallaby Grip (BAE) Pty Ltd (In Liquidation) Blue Star Line (Australia) Pty Ltd MATTER NUMBER(S) : 36 of 1990; 251 of 2000 JUDGMENT OF: Johns J at 1 Damages :- Dust Diseases Tribunal Loss of earning capacity Assessment of damages Estate claims Compensation to Relatives claims Calculations not necessarily based on past earned income Involves evaluation of possibilities CATCHWORDS: Deductions of estimated expenditure on personal essentials only Compensation to Relatives Act 1897 (NSW) Dust Diseases Tribunal Damages Compensation to Relatives claims Loss of deceased's gratuitous services Interest up to judgment Purpose of interest not punitive Compensation to Relatives Act 1897 (NSW) LEGISLATION CITED: Supreme Court Act 1970 (NSW) s 94 Workers Compensation Regulations 1926 Aafjes v Kearney (1976) 50 ALJR 454; Anderson's (Pacific) Trading Co v Karlander New Guinea Line Ltd [1980] 2 NSWLR 870; Ashford v Ashford (1970) 44 ALJR 195; Australian Consolidated Press v Driscoll (1988) Aust Torts Reports ¶80-175; Axiak v Pezzano [2002] NSWCA 65; Bennett v Jones [1977] 2 NSWLR 355; Blasetto v Wilson, NSWCA, No. 265/77, 17 May 1978, unreported; Bonnington Castings Ltd v Wardlaw [1956] AC 613; British Transport Commission v Gourley [1956] AC 185; Circosta v Falzon [1999] NSWCA 308; Commonwealth v McLean (1996) 41 NSWLR 389; Cullen v Trappell (1980) 146 CLR 1; Dingle v Associated Newspapers Ltd [1961] 2 QB 162; Dunlany v Hunters Hill Bus Co Pty Ltd, NSWCA, No. 191/82, 12 May 1983, unreported; Fitch v Hyde-Cates (1982) 150 CLR 482; Graham v Baker (1961) 106 CLR 340; Griffiths v Kerkemeyer (1977) 139 CLR 161; Haines v Bendall (1991) 172 CLR 60; CASES CITED: Harper v Phillips [1985] WAR 100; Husher v Husher (1999) 197 CLR 138; James Hardie & Co Pty Ltd v Roberts (1999) 18 NSWCCR 500; Johnson v American Home Insurance Co (1998) 192 CLR 266; Jongen v CSR Ltd (1992) Aust Torts Reports ¶81-192; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579; Medlin v State Government Insurance Commission (1995) 182 CLR 1; New South Wales v Moss [2000] NSWCA 133; Nguyen v Nguyen (1990) 169 CLR 245; Nicholson v Nicholson (No. 2) (1994) 35 NSWLR 308; Paff v Speed (1961) 105 CLR 549; Paul v Rendell (1981) 55 ALJR 371; Pheeney v Doolan (No. 2) [1977] 1 NSWLR 601; Roberts v James Hardie & Co Pty Ltd, NSWDDT, No. 15/97, 22 August 1997, Curtis J, unreported; Simonius Vischer & Co v Holt [1979] 2 NSWLR 322; Swan v Williams (Demolition) Pty Ltd (1987) 9 NSWLR 172; Todorovic v Waller (1981) 150 CLR 402; Wilson v Harvey Trinder (NSW) Pty Ltd [1973] 2 NSWLR 870; Yammine v Kalwy [1979] 2 NSWLR 151 DATES OF HEARING: 30 April 2002, 1-2 May 2002, 19-21 June 2002 DATE OF JUDGMENT: 07/08/2002

FOR PLAINTIFF: Mr J L Sharpe instructed by Turner Freeman FOR DEFENDANTS: LEGAL REPRESENTATIVES: Mr G M Watson insructed by Ebsworth & Ebsworth for the fourth defendant Mr N E Chen instructed by Moray & Agnew for the fifth defendant Mr A C Scotting instructed by Acuiti Legal for the sixth and seventh defendants

JUDGMENT:

1. The Tribunal has before it claims brought by the estate of Johann Heinz Jorchim Borowy and claims by his widow Margaret Irene Borowy and his children Hans Borowy and Susan Borowy. The substance giving rise to the claims is that Mr Borowy was exposed to, and inhaled asbestos dust and fibre in the course of his employment with the second, third and fourth defendants. He developed mesothelioma from which he died on 23 April 1984. The deceased was born on 16 August 1932 in Saint Pulton, Austria. 2. The claims brought are, firstly, a claim by Mrs Borowy as executrix of the will of the late Mr Borowy, an action which has been referred to throughout the proceedings as, "The Estate Action". The other claims brought by Mrs Borowy on her own behalf and on behalf of her children are pursuant to the Compensation to Relatives Act. 3. At all material times there existed between the third defendant and Law Union Rock Insurance Co Ltd a contract of insurance in regard to indemnity against liability for damages or compensation of the third defendant. The fifth defendant has assumed the liabilities of the Law Union Rock Insurance Company and is liable to indemnify those insured by it. 4. The sixth and seventh defendants, it is alleged, manufactured and supplied insulation materials containing asbestos which were relevantly used by the deceased in the course of his work. Employment, Exposure and Supply 5. The fourth and fifth defendants do not dispute the question of liability and have contested those matters that relate to the extent and entitlement of damages in each of the actions brought. 6. The deceased came into the employ of the second defendant some time in 1961 as a casual employee and then as a permanent in 1961 (see Exhibit PX1 and PX12). 7. Mr Neville Fischer, gave evidence, firstly, by affidavit (Exhibit 12) and orally on 20 June 2002. Mr Fischer, commenced with the second defendant in 1957 as a ship's joiner, and was soon after promoted to superintendent of the company. He remembered the deceased well as he had chosen him as a casual, from a pick up centre. Mr Fischer liked the way he worked and as a consequence invited him to stay on as a permanent employee. At the time Mr Fischer was in charge of the day to day operations of the company. 8. He produced photographs of the deceased with other workers and gave a description of the kind of work that the first defendant did and in particular in relation to repairs on ships. He gave a description of insulation work carried out on board these vessels and the nature of their insulation. A lot of the repairs, that were undertaken, brought employees into contact with asbestos insulation materials which were utilised throughout the vessels where there were in particular hundreds of feet, of brine pipes which were used for refrigeration of frozen cargoes. 9. The insulation used was an asbestos rope described as bluey in colour and raw asbestos powder, which came in bags. This was mixed with water and cement to the consistency of mud and applied over the asbestos rope and smoothed down by hand. Asbestos blankets were also placed in areas where there were a multitude of pipes and sewn up with a bag needle. 10. When any of this work was done specks and fibres were released which caused dust which could clearly be seen to fill the air. 11. Mr Fischer gave evidence that a lot of the material came from Bells Asbestos. He said they were the suppliers of bags of loose asbestos, rope asbestos, asbestos cloth and asbestos sheeting. He recalled them as Bestobell. He did on two occasions go to the factory to pick up the asbestos materials, usually, however, the materials were delivered to the wharves. Those that were delivered to the wharves, he said, were the same as those he himself picked up at Bestobell. He said they came in the same bags and containers. Most of the materials that were used, he said, came from Bestobell. 12. He had been shown, as indicated in his affidavit, a Bestobell catalogue. On looking through the catalogue he identified the asbestos cloth, sheeting and millboard. The asbestos cement that was listed in the catalogue was the cement, he said, that they used. He also said that on occasions there was the use of another asbestos sheeting which came from James Hardie called Hardibestos. He never went to James Hardie and he never purchased James Hardie products. 13. Insulation work was not done all the time and he estimated that 50 per cent of the time was spent with insulation materials. However, as the deceased was a very good worker but not a highly skilled joiner he said he was very good at any odd jobs that came along. He was therefore allocated to do a lot of the insulation repair work. The deceased was described as good at that sort of work and happy to do it. 14. The lagging work he did was mainly 'patch up' jobs which usually took a couple of days. There was a lot of it, he said, and the deceased did the lagging work for a couple of days at least once a fortnight. It appears that it was a busy establishment which operated on a number of ships in port that had to be serviced at any time. It was an operation which at times was worked from 7.00 am to 7.00 am the next day in some cases for 24 hours when they could get the men. 15. Additionally asbestos cargoes came into port. The description of them being loaded and unloaded was given by Mr Fischer. Asbestos cargoes came in hessian bags which often spilled when unloaded. The residue was shovelled up by the painters and dockers whilst employees of Rowley Miller were putting up the shoring in spaces already discharged. It was work which usually took eight to ten men a couple of hours in order to take the shoring out and 10 to 14 hours to get the shoring back in on a full ship. It appears Mr Borowy worked on an asbestos cargo ship at least on a regular basis. That kind of work made up 30 per cent of the work done by his employer. The Blue Star Line vessels had an exclusive contract with the first defendant as ship repairers (see par 15 PX12). 16. After containerisation the first defendant lost the contracts of the Blue Star Line and Shaw Saville. Mr Borowy worked with that company right up until it folded and spent 70 per cent of his time he was working with Mr Fischer on Blue Star Line ships. The first defendant folded, it appears, some time in 1969 whereafter Mr Borowy, for the next six or seven months, purchased a coffee lounge in Ultimo (see par 15 PX1). 17. Some months later Mr Borowy started as a casual employee with the third defendant and as a consequence of his good work he became permanent. Some time later that company became, or was taken over by, Irvine & McAtee. The business was run by the same people and did the same work. When the operation moved to Glebe Mr Borowy moved with it. 18. The third defendant did general insulation work and ship's carpentry work. The same as the second defendant, although the work relating to asbestos cargoes was less. Mr Borowy did asbestos insulation work with the third defendant who used asbestos sheeting to lag and insulate air trunking areas (see par 20 and 22 PX12). 19. Undoubtedly the environment in which the deceased worked was very dusty and asbestos products were extensively used. Mr Borowy's exposure was such that it was not reasonable for the defendants to allow him to work in conditions in which he was required to work. They failed to have regard to the knowledge of the dangers of exposure to asbestos dust in that industrial atmosphere. The level and the intensity of the exposure with his employers was an undertaking of a dangerous activity without the necessary or commensurate degree of care. It would be therefore my view, that each of the employer's was in breach of their duty of care. 20. The sixth and seventh defendants, however, raise the issue that there has been insufficient identification of their products being used by the deceased during his employment. Moreover, they raised criticism of the evidence of Mr Fischer in identifying the products utilised in the workplace. Mr Fischer had worked a considerable number of years on the waterfront and in ships supervising the work of Mr Borowy. He worked with him, supervised him and often worked alongside him. 21. Moreover in par 9 of Exhibit PX12 Mr Fischer gave detail in relation to the asbestos products used and his ability to recognise those products from a catalogue which was an annexure to his affidavit evidence in Exhibit PX12. He was familiar, in my view, with the nature of the material produced by the sixth and seventh defendants. Mr Fischer had been able to identify those products as being products that he himself on two occasions, had obtained from the premises of the sixth and seventh defendants. The same type of materials were used over the period of years in each of the employments with the defendants. 22. Although Mr Fischer came under some significant cross-examination in regard to par 9 of his affidavit, Exhibit PX12, he said that he had some intimate knowledge of which company supplied the asbestos and he understood it to be the sixth and seventh defendants (see T19 to 22 of 19.6.02 re level of exposure). 23. In his evidence (T27) Mr. Fischer was definite about his identification in par 9 of the sixth and seventh defendants products from the catalogue. His identification was not from the numbers but from his knowledge of the products themselves. He was not aware of the contents of the catalogue when he was first asked to review the contents contained in it. Mr Fischer did affirm that he had been to Bells and picked up the products contained in the catalogue. They were the products he used to see during the course of his supervision on the wharves over many years. 24. A number of interrogatories were also tendered in respect of defendants six and seven. In that regard the sixth and seventh defendants identified their supply, from a UK source, of asbestos cloth, as described in annexure A to the list of interrogatories. The asbestos cloths described in annexure A to the interrogatories are also described in annexure B in Mr Fischer's affidavit. They were, as the interrogatories identify, suppliers of millboard which they obtained also from the United Kingdom. 25. In relation to insulating compositions these were obtained for sale by the sixth and seventh defendants from James Hardie & Company Pty Ltd. The asbestos rope and lagging was obtained by the defendants from their suppliers in the United Kingdom. In this way, they became a supplier in respect of those materials. 26. Each of the materials which form the annexures to the interrogatories have been identified as products for sale by the sixth and seventh defendant and have specified their source. In every case the source is either Turner Brothers, the supply company in the United Kingdom, or James Hardie & Company in Camellia New South Wales during the relevant period. 27. Interrogatories 16, 18, 19, 20, 53 and 50 as tendered identify the materials sold and the source from which they were obtained. It seems to me therefore that the sixth and seventh defendants were significant suppliers of a range of asbestos containing materials to the employers of the deceased, Mr Borowy. 28. I found the evidence of Mr Fischer, direct, plausible and explainable and above all accurate. The most probable source of Mr Borowy's disease was the dust which emanated from his employment whilst using asbestos containing materials. A significant amount of those materials, in my view, were supplied by the sixth and the seventh defendants, and as a consequence materially contributed to the onset of his disease. 29. The question of what is a material contribution is a matter of degree but as has been indicated in long established authority (Bonnington Castings Ltd v Wardlaw [1956] AC 613 at 621): "Any contribution which does not fall within the exception of de minimis therefore must be material". Any person liable for a cause of exposure which made a material contribution to an indivisible injury such as mesothelioma is liable to compensate for the whole (see Dingle v Associated Newspapers [1961] 2 QB 162). 30. The exposure to products supplied by the sixth and seventh defendants therefore made a material contribution to the plaintiff's injury and each defendant is liable in respect of the damage. I find the sixth and seventh defendants therefore in breach of the duty of care they owed to the deceased Johann Borowy. PECUNIARY LOSS The Estate Claim / Compensation to Relatives Claim 31. The deceased, Mr Borowy, did not die immediately upon his diagnosis of mesothelioma and there was a period when there was a loss of earnings between the date of injury and the date of death. Therefore awarding damages to the estate for the loss of earning capacity for that period is calculated in the same way as if he had been still alive. 32. In Compensation to Relative Actions, both past and future economic loss can only be assessed by reference to probabilities or likelihoods. The starting point obviously is the date of death. Thereafter the Court assesses what the deceased's earnings were likely to have been up to the time when he would probably have ceased producing income. In most cases the hearing will take place at some point during this period. The Tribunal therefore is required for practical reasons to assess past loss separately from future loss. The calculations are of necessity entirely different but the line between past and future remains an unbroken one which happens to be intersected by the hearing. However in this case the whole of the calculations refer to the past but for practical reasons, which will become apparent, I propose to assess the last five years as a future loss (see Axiak v Pezzano [2002] NSWCA 65 per Matthews AJA at par 9). 33. There is a great deal of estimation involved, particularly in circumstances as in this case where Mr Borowy was self employed. He had been so from 1973 doing what his widow described (Exhibit PX1 par 20 to 26) as odd carpentry jobs, fitting out kitchens and making furniture including tables and chairs. He worked, she said, five to six days per week and in late 1982 was working on a building of the Buffalo Museum Restaurant in Glenelg. He was employed to fit out the interior of the Restaurant as part of the Museum. The Restaurant was built as a sailing ship. His work involved building chairs, tables, stairs and other carpentry work. The job took six to eight months and his widow said he was paid a wage of $350 a week. 34. It appears the deceased liked to engage in what was described as interesting projects which he undertook, not particularly for the extent of the reward in terms of return but rather, it seems to me, in terms of satisfaction. The evidence reveals that the deceased was a diligent worker, so much is indicated from Exhibits PX5 and PX12. Additionally Exhibit PX4 is a testimonial as to the extent and quality of his tradesmanship in respect of work carried out as a self employed carpenter. Such is of course to be contrasted by Mr Fischer's assessment of the time when he described the deceased as a very good worker but not a highly skilled ship's joiner. Nonetheless one must take into consideration the nature of the work he was doing prior to the onset of his illness which could be described as the more elaborate type of carpentry and the quality of the work as indicated in the testimonial already referred to in the evidence. 35. The income tax returns do not reveal any substantial income from the deceased's building business before he took ill. On the other hand, as I have already described, there is evidence that he was a competent builder and a hard working one. In particular he had certain abilities as a craftsman in relation to special purpose work. 36. To some extent there is speculation involved in assessing earning capacity had Mr Borowy not been tortiously injured. The ascertainment involves evaluation of possibilities not establishing a fact as a matter of history (see Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 639). The Court assesses the degree of probability of the earning capacity that would have occurred and adjusts the award of damages accordingly. 37. In State of New South Wales v Moss [2000] NSWCA 133 Heydon JA indicated that: two uncontroversial themes run through cases relating to the assessment of damages for injury to earning capacity. One is the desirability for precise evidence to be called as to what the plaintiff would have been likely to earn but for the injury. Second, failure to call such evidence does not necessarily result in selection of a nominal figure as damages for impaired earning capacity. The usual method of proving damages is by calling evidence to show what the plaintiff would probably have earned during the rest of his life if he had not been tortiously injured (see Paff v Speed (1961) 105 CLR 549 at 559). 38. There is general recognition that "The task of assessing damages in personal injury cases should be kept as simple as possible": Jongen v CSR Ltd (1992) Aust Torts Reports ¶81-192 at 61,713 per Anderson J. 39. The second theme is summed up by Reynolds JA in Yammine v Kalwy [1979] 2 NSWLR 151 at 155, who indicated that a tribunal of fact can "without specific evidence as to what other persons with that kind of disability can earn make a judgment and assessment on a percentage basis or otherwise of the value of the lost capacity". 40. Incomplete evidence followed by a low award for diminution of earning capacity leaves it difficult for the plaintiff to complain but it does not follow that a substantial award in a case where evidence is incomplete cannot survive appellant attack by the defendant (Luntz, Assessment of Damages for Personal Injury and Death, 3rd Edition par 1.9.28) (see also Circosta v Falzon [1999] NSWCA 308). 41. The reasons for the aforesaid, is that authority has indicated that like other types of damages, these, by their very nature, are incapable of mathematical calculation and commonly are very much at large. In Moss (supra) it was said they were also at large in the sense that a jury has a wide discretion in assessing them. The other reason is that the issue relates to compensable loss, not a loss of income, but a loss of capacity to earn income in a manner productive of financial loss. Evaluation of the worth of loss of earning capacity or of a lost chance to earn is of its nature a more imprecise inquiry than the calculation of a lost income (see Moss at 16). It is an exercise in estimation of possibilities not proof of probabilities (see Moss at 16). Thus the Court is being asked to estimate, as best it can, the effect of the injury from which the plaintiff has been proved to be suffering as a result of the defendant's wrongful act. 42. Lord Diplock described the factors underlying the assessment of damages for diminished earning capacity as matters of "prophecy or judicial guess" (see Paul v Rendell (1981) 34 ALR 569 at 578). The mere fact the quantum of damages is difficult to assess does not mean that the plaintiff is only entitled to a nominal sum (see Moss at 17). 43. In Ashford v Ashford (1970) 44 ALJR 195 at 196 Barwick CJ concluded that "the difficulty in determining what was the actual diminution of the appellant's earning capacity, the margins with which a trial judge might properly exercise his discretion in arriving at a verdict in this case were necessarily fairly wide". 44. Although a Tribunal of fact is not entitled without evidence to assume a specific figure, it is not constrained by narrow limitations for what could have been earned without the injury. 45. In Yammine v Kalwy (supra) at 155 Reynolds JA stated: In my opinion where a plaintiff has suffered a significantly disabling injury which obviously affects the range and the nature of the work he can therefore perform a Tribunal of fact can without specific evidence as to what other persons with that kind of disability can earn make a judgment and assessment on a percentage basis or otherwise of the value of the lost capacity. At 157 he stated:

But if a party desires to adopt a weekly wage loss approach he must produce appropriate evidence to base the calculations inherent in it. In the case of total incapacity this will ordinarily not give rise to problems, the loss will be the loss of the total wage which uninjured the plaintiff would have earned . . . 46. McHugh J in Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 16 concisely stated the distinction between loss of earning capacity and loss of income. He stated: An injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss. 47. Loss of earning capacity more accurately compensates a plaintiff for the effect of an accident on his ability to earn an income. Earning capacity is an intangible asset and its value depends on what it is capable of producing. Earnings are evidence of the value of earning capacity but they are not synonymous with its value. When loss of earnings rather than loss of capacity to earn is the criterion the natural tendency is to compare the plaintiff's pre accident and post accident earnings. This sometimes means that no attention is paid to that part of the plaintiff's capacity to earn that was not exploited before the accident. There is also a tendency to assume that if pre accident and post accident incomes are comparable no loss has occurred. 48. It seems to me that the earnings as stated in the income tax returns of Mr Borowy and in particular in the financial year prior to the onset of his disease, although a factor to be taken into account are not, in my view, reflective of his loss of earning capacity. 49. In respect of the loss of earning capacity the defendants have submitted detailed financial assessments in relation to earning capacity by business and accounting specialists (see Exhibit 6DX1A and B). 50. The plaintiff has founded the case for the Estate and the Compensation to Relatives in respect of the deceased's income on the detailed report of Furzer Crestani Services. Therein is a great deal of detail relating to a number of scenarios which involve certain assumptions as contained on page 3 of the report, Exhibit PX13. The loss in respect of Mr Borowy's income to the date of death is founded upon the minimum award rate for a carpenter engaged in shopfitting work to which there has been added overtime at the rate of time and a half annual leave loading and a Medicare levy. The minimum award rates are set out in attachment A of Exhibit PX13. 51. The Horwath report submitted by the sixth defendant also contains a reported estimation of the suffered economic loss of the Estate and Compensation to Relatives Actions. It seems to me that this report has paid particular attention and placed particular weight upon the actual earnings in the years prior to Mr Borowy's decease. 52. Each of the financial reports have utilised statistical analysis of household expenditure patterns contained in the Assessment of Damages for Personal Injury and Death by Luntz. The Horwarth view in relation to loss is, that it was negligible. They did, however, prepare calculations using a methodology similar to the Furzer report. 53. The Horwath report, contained a scenario where there was no overtime and a scenario where there was three hours' overtime each week, which they said was consistent with the ABS data for employing carpenters. The basis of the calculations is to be found on p 8 and p 9 of Exhibit 6DX1A. Past economic loss and loss of support is to be found in Schedules 1.1 and 1.2. 54. The loss in respect of both actions, in the Furzer report is contained in, the summary which is to be found on p 7 of PX13. The average of the four scenarios are the amounts claimed. 55. A similar approach was considered by the Court of Appeal in Circosta v Falzon [1999] NSWCA 308. A decision not referred to the Tribunal by any of the parties. A Furzer report was considered in that case which looked at two scenarios and three alternative assumptions of residual earning capacity. The second scenario in that case took the earnings of a carpenter, and because the earning capacity of that plaintiff was greater than simply a tradesman the average weekly earnings were increased to one and a half times. 56. There was a similar submission in that case, that the base figures that the plaintiff had been earning for years beforehand was never close to the factored average weekly earnings of the submissions by the plaintiff. There was a scenario in the Furzer report in that case where the weekly earnings of a carpenter were not factored up and the loss calculated accordingly. The income tax returns, in that case, did not reveal a substantial personal income and was said to plainly not reflect the earning capacity of that plaintiff. In those circumstances the Court of Appeal indicated that it was well accepted and permissible to look to a hypothetical wage rate. 57. In Dunlany v The Hunters Hill Bus Co Pty Ltd (NSWCA 12 May 1983 unreported, BC 8300009) Moffit P said: Where a working owner or partner receives injury and cannot do as much as previously in the business ... it is clear that there is a diminution in working capacity and that of necessity there must be some economic detriment to the business, it is difficult or perhaps impossible precisely to quantify the loss or demonstrate with precision or perhaps at all a mechanism by which the loss occurs. 58. Blasetto v Wilson (NSWCA 17 May 1978 unreported): If there is a real diminution in earning capacity from which it can be inferred is or will cause economic loss it should not go uncompensated because of the difficulty or may be the impossibility of producing evidence which will precisely qualify it at the date of the trial or in the years to come. 59. Moreover in Circosta, Giles JA stated: The Court in similar cases has resorted as a guide to the level of wages paid to an employee performing work which the owner or partner could not do. What it would cost to employ somebody else for the time he could not work or what he might earn if he had sought employment himself is capable of providing some guide as a basis from which an estimate of the loss to the business or to him can be made. Such a guide may be of particular assistance in assessing the award for a continuing diminution or loss of earning capacity because a future loss is not necessarily tied to a particular business. 60. Giles JA also indicated that the conceptual foundation in relation to the diminution of earning capacity emphasises that the damages are not necessarily a calculation from past earned income. See also Husher v Husher (1999) 73 ALJR 1414 at 1416. In this exercise a great deal of estimation is involved. 61. In Todorovic v Waller (1981) 150 CLR 402 Aickin J indicated at 457-458 that the task by its very nature is incapable of being performed accurately. Inevitably assumptions must be made about every one of the variables which may and generally speaking will affect the future. Similarly in the same case Gibbs CJ and Wilson J indicated that financial loss likely to result from personal injury can only be an estimate often a very rough estimate of the present value of perspective loss. Ultimately the process must always be one of judgment rather than calculation. 62. In Circosta it was said that it was open to the judge at first instance to take the average weekly earnings of a carpenter as a guide in the assessment of the financial loss produced by the respondent's lost or diminished earning capacity both in relation to the past and in relation to the future. Giles JA indicated in that case that a competent and hard working builder carrying on business on his own account would be likely to earn more than an employed carpenter. 63. It was therefore in Moss acceptable to take not just the average weekly earnings for a carpenter as a guide but average weekly earnings factored up to reflect the greater earnings which a competent and hard working builder might achieve. Such an exercise, it was said, involved estimation but no error. 64. Relevant evidence is to be found in Exhibits PX4, 5 and 6 and the affidavits of the plaintiff Exhibit PX1 and of Neville Fischer, Exhibit PX12 and certain portions of the transcript. The work history of Mr Borowy was such that he was in constant employment throughout his life and from 1973 as indicated was self employed both in carpentry work and fitting out of kitchens and making furniture, tables and chairs, and on occasions specialised fitting out in accordance with a theme eg par 21 affidavit of plaintiff. In late 1982 a specialist job of this kind was paying $350 per week. It is also of some significance that the plaintiff in her evidence (T16) indicated that there were times in between jobs when her husband would not be employed. 65. The defendants have relied in their submissions, as has their expert, in making their primary submissions upon the earned income by way of tax returns of the deceased. Such an approach fails to appreciate, in my view, the two fundamentals of the assessment of damages for economic loss. 66. The translation of Mr Borowy's earning capacity into income would, in my view, in the circumstances of a hard working self employed carpenter with some specialist ability working consistently but with an occasional break in between, reasonably be the equivalent of Sch B of the Furzer report (PX13). The calculations however in relation to Sch B make calculations until the year ended 30 April 2002, on the assumption that the plaintiff in accordance with the intentions expressed by him to the deceased would have worked until approximately aged 70. 67. I propose in making the calculation to allow the estimate of past income to 30 June 1997, which is approximately the equivalent of earnings to age 65. The sum from 24 April 1984 to 30 June 1997 in relation to estimated past income is $232,280 (Ex Px 1B Sch). 68. In Fitch v Hyde Cates (1982) 150 CLR 482 Mason J stated: There are solid grounds for thinking that the true measure of the deceased's loss is not the amount which he would have had in his hands to spend, distribute or save, after defraying his probable living expenses and those of his dependants, but the amount of his future earnings less his probable living expenses to enable him to earn future wages. ... this loss of earning capacity is reflected in the loss of earning capacity or perhaps a reduced earning capacity in the years of life that remain and in the loss of earning capacity in the years of which the victim has been deprived. 69. Future expenditure on his own living expenses, which should be regarded as an essential condition of the exercise of his earning capacity, qualify the nature of those living expenses which are to be deducted as only those that are essential (see Curtis J, Roberts v James Hardie and Seltsam Pty Ltd, which was upheld by the Court of Appeal). 70. A similar approach of the Court of Appeal in Commonwealth of Australia v McLean (1996) 41 NSWLR 389 wherein the judgment of Handely, Beazley JJA the following was said: In Fitch v Hyde Cates Mason J at 297 referred to the rational for the deduction of living expenses in these terms. He recovers damages for his loss of earning capacity which is equated with his future earnings less his probable living expenses in the lost years for without that expenditure he would not have continued to exercise his earning capacity and it is after deduction of that expenditure that there remains a surplus which he could spend as he wished on his dependants or otherwise. Once the rational for the deduction is understood, it is clear that there should be no deduction for expenditure on " pleasures " . 71. From the sum of $232,280 there ought to be deducted the equivalent of 20 per cent to reflect the own maintenance, and a further 20 per cent to reflect the deceased's vicissitudes. The resultant sum amounts to $148, $659. 72. In respect to the following five years to age 70. The task which is undertaken by the Tribunal, when assessing the damages for future or potential events, is done in terms of the degree of probability of those events occurring and the Tribunal adjusts its award of damages to reflect the degree of probability (Malec v J C Hutton Pty Ltd 64 ALJR 316 at 318). That is not to say that a determination is made in accordance with mathematical precision. What is required is that the damages to be assessed be proportioned to the injury or loss. It seems to me that there was a high degree of probability that the deceased would have worked to his 70th year. 73. I am of the view the deceased would probably have continued working in accordance with his usual practice, however, I would take 40 per cent of those earnings to reflect both the fact that I am assessing the chance that the plaintiff would have been unable to work as productively after age 65 and the chance that will result in some loss to him. The present value of the resulting loss in accordance with Schedule B in Exhibit PX 13 is $110,841.00. From this sum there ought to be deducted 40 per cent to reflect the chance and a further 20 per cent to reflect own maintenance and a further 20 per cent in respect of the plaintiff's vicissitudes. The resultant sum of $42, 644 is the estimated loss of income for the relevant period to age 70. 74. The resultant sum, in regard to the Compensation to Relatives Claim is subject to deductions for dependency. 75. The Dust Diseases Board payments, during the course of that financial year, and as calculated in Schedules F and H of the Furzer report PX13, in respect of the Estate claim of $1,153 and $ 54,749, $ 1,740 in respect to the widow and the son in the Compensation to Relatives Claim. These sums are to be deducted from any awards made. 76. The loss in respect of the Estate Claim from 1 July 1983 to 23 April 1984 amounts to $9,803 see Exhibit PX 13 Sch B and is subject to a Dust Diseases Board payment deduction of $1,153 in accordance with Sch F of Exhibit PX 13. DEPENDENCY RATE 77. Mrs Borowy was herself in regular employment during the course of her marriage. During her marriage her income may well have at times exceeded Mr Borowy's. Nonetheless the evidence of Mrs Borowy is that Mr Borowy used his salary to pay all the bills for the house including utilities, rates, insurance, the car and half the mortgage payments (see PX1 par 53). The plaintiff paid the other half of the mortgage payments and also provided lunch for the family. At no stage did the wife provide her husband with money for his support. The plaintiff was in constant employment the evidence in regard to the sums that she earned during the course of any particular financial year appears in Ex PX 7. Her salary for the financial year ended 1984 was significantly higher than the assessable income on the deceased's tax return. The plaintiff expressed (see par 54 PX1) her intention to continue working until the house was fixed and then cease, as she was finding it increasingly difficult to continue working because of her back condition. It was her intention to cease work, she said, in approximately 1985, her husband was in full agreement with her intention. 78. The plaintiff ceased work in 1991 and was earning somewhere between $30,000 and $35,000 per year at the time of her retirement from work. Although the plaintiff's work intentions were expressed in her affidavit the transcript at T 33.30 (30 April 2002) contains the following: Turning to par 54, this is you working, did your husband say something to you about his thoughts in relation to your working. A-Yes, well, he said, you know, you don't have to keep going, he said, just because I want to keep going, he said, because I did always have a bad back and I found it difficult sitting for long periods and he said, you know, just when you turn about 55, I think he said, you know, you can stop, you don't have to keep going. 79. Given the nature of the financial structure of the household and the finances, as revealed during the course of the evidence, I think it more likely than not that the plaintiff would have continued in her employment until aged 55 (see also transcript 1 May 2002 at 12.12, T16, T17, T18). Given the nature of the arrangement it seems to me that the plaintiff did have a reasonable expectation of benefit from her husband. Though she had an independent income it is my view that the household was reliant on both of the incomes of the husband and the wife and that it was a reasonable expectation of the plaintiff to receive benefit from the continued existence and earnings of her husband. 80. Two income families have become much more common and the method of dealing with such cases is an adaptation of the conventional method described (see Luntz Assessment of Damages for Personal Injury 4th Edition at 9.3.3). Luntz at p 501 provides a standard table as to the percentage of dependency. 81. In Axiak Matthews AJA stated: The range of dependency was obtained by Her Honour from the table which has become a standard reference point in these cases. 82. The table prepared in the 4th Edition of Luntz assumes a household in which the husband was the primary or sole earner and a household where the income of the spouse is equal as a percentage of income of the deceased. The determination of an appropriate dependency rate involves a discretionary judgment. I am of the view that no error would be made by applying percentages contained in the table. THE CHILDREN 83. There is also a claim in respect of dependency by the daughter and the son of the deceased. The plaintiff's daughter resides in the US and has done so for a considerable number of years. She has four children aged between seven and 15 years. In early 1985 she commenced employment with the CSIRO and in my view has been independent since that time. I do not consider in the circumstances that damages need be assessed as I do not consider there has been any loss. 84. In respect of the son at the time of the onset of the illness of Mr Borowy, he was studying for his matriculation at high school. He thereafter left school, and commenced a hotel management course at TAFE. He carried out work experience as part of his course but in mid 1987 he became ill. Although the plaintiff's evidence is that he was diagnosed with chronic fatigue syndrome there has been no medical evidence in respect to the son's condition or its prognosis, nor has there been any evidence by the son in this matter. The plaintiff in her evidence indicated that he had not worked since 1987 and had been receiving sickness benefits and a disability support pension and was living with his mother who has cared for him. 85. There was, however, a very good relationship between father and son and it seems to me likely, in the circumstances, that it was a reasonable expectation of the son, to an expectation of a benefit, from his father, until the end of his hotel management course at TAFE. I have no evidence in relation to the nature of the course or its length, but it seems to me reasonable to infer that three years would be a reasonable period in which the son could expectantly look to benefit from his father (see Aafjes v Kearney (1976) 8 ALR 455 at 456 per Barwick CJ and at 463 per Mason J). 86. In those circumstances, it seems to me that the percentage of dependency for one sixth of the loss should be in accordance with table 9:1 in Luntz 4th Ed. at p 501 and be apportioned between the spouse and the son in the proportions of 23.9 per cent in respect of the spouse and 19.8 per cent in respect of the son. 87. The percentage of dependency of the surviving spouse should follow (as reasonable) the table and a percentage of 31.2 per cent for one sixth of the sum as representing dependency of the plaintiff to the age of 55. Thereafter, in accordance with the table, the percentage of dependency as contained in the table of 65.6 per cent should be applied in respect of two thirds of the sum. GRATUITOUS CARE – ESTATE CLAIM 88. The plaintiff makes a claim for the value of services voluntarily rendered to the deceased as being recoverable by the estate. The sum claimed related to gratuitous services provided in respect of care from 1 April 1983 to 23 April 1984, including care in respect of periods of hospitalisation within that period. The sum claimed included the cost of taxi fares each week night over the full period. 89. The plaintiff widow, in this case, engaged in employment during the whole course of the marriage except for very short periods of time when she had her children. 90. They were a two income family, not so uncommon even in that period. A sum representing the value of services provided gratuitously to Mr Borowy is recoverable as damages. The estate is entitled to recover the fair and reasonable cost of nursing services provided by Mrs Borowy. 91. The services must have been reasonably required by the deceased because of his physical condition attributable to his mesothelioma. The accident caused need of the loss to be compensated and the reasonable cost of satisfying that need is the means of quantifying the damages (see Harper v Phillips [1985] WAR 100 at 102. See also Medlin v State Government Insurance supra at 18). 92. In Harper v Phillips the value of gratuitous services was held to come into the same category as economic loss, and therefore came within the provisions of the section. I do not consider that the claim of what is described as out of pocket expenses, in particular the reference to taxi fares, comes within that provision. 93. In Nicholson v Nicholson (1994) 35 NSWLR 308 it was held that the services performed by a sister which helped improve the level of comfort was not classified as fulfilling a relevant need in view of the fact that the appellant was already enjoying full hospitalisation. Although it may not be realistic it was said to expect the nursing staff at all times to apply the creams to the appellant the respondent, that is in this case the defendants, already bear the burden of providing compensation for the costs of hospitalisation. Kirby J stated that he did not believe that it should be required to compensate the appellant sister as well for their minor activities. In that case it was held that those services did not represent services within Griffith v Kerkemeyer. 94. The evidence from the plaintiff as to Mr Borowy's condition from the period that he first felt symptoms although not extensive is sufficient to reasonably infer that from October 1983 Mr Borowy was significantly disabled and deteriorating until the time of his demise on 23 April 1984 (T 1236 to T 1512). 93. On his first hospital admission on 12 June 1983 he complained of symptoms of two weeks duration with right sided thoracic and lumbar back pain made worse by deep breathing, coughing and movement. A pleural effusion was found and a pleural tap was performed. He was discharged on 22 June 1983. Thereafter he remained unwell (see Dr Carter PX8). He was readmitted on 13 July 1983. By October 1983 the fluid had accumulated again, requiring admission to hospital, which ultimately led to the diagnosis. 94. In the meantime it appears that Mr Borowy did return to work, although it appears that he experienced some difficulty in doing so and was somewhat debilitated at the end of the day. The evidence of Dr Carter in PX8 also indicates that in the intervening period there was a recurring effusion without any known underlying cause at that time. 95. It is also clear from Mrs Borowy's evidence that the deceased was a man of stoic character who would not freely admit his illness or make much complaint. I am more inclined to the view, as described by the plaintiff, that he was more disabled than he was prepared to admit to the doctor. It is one thing to put up with pain and discomfort at work, it is quite another to do so at home, especially when one is exhausted from work. Of course it is a matter of degree but I consider that overall he would have needed help. 96. I am prepared to accept in the light of the evidence that the plaintiff would have spent on average from 13 July until the deceased's admission to hospital on 20 October 1983, two hours per day administering to her husband's needs by way of ordinary domestic tasks, including that of shopping, cleaning, cooking, washing, ironing and meals. This artificial process gives the appearance of precision, however, I am satisfied that the results give a fair overall picture of the effect of the evidence, which I accept. 97. It is also significant to indicate that the plaintiff at the same time as administering to her husband's needs during his illness maintained full employment, particularly it seems on nightshift on a full-time basis. Necessarily the opportunities in respect of the number of hours which were available to her in order to perform these tasks was limited. 98. Undoubtedly between the plaintiff's admission on 12 June through to his readmission on 13 July Mr Borowy was quite disabled and in my view would have required four hours per day of care, due to what, in my view, would have been additional nursing needs. 99. During his period of hospitalisation the plaintiff undertook special tasks on behalf of the deceased in regard to his meals, shopping and washing and other personal needs would have provided, in my view, two hours of care per day. 100. During his hospitalisation between 20 October 1983 to 27 October 1983 I would allow for the same reasons two hours per day in respect of what I consider to be the provision of reasonable care. 101. On his discharge from 28 October to 30 October 1983 Mr Borowy's needs in respect of time would have been increased and I would allow five hours per day during that period of time. 102. From 31 October until 5 November 1983 when he was admitted for a period of hospitalisation I allow two hours per day for reasonable care. 103. From 5 November 1983 until his admission date on 10 February 1984 the plaintiff was considerably disabled and would have required, in my view, the equivalent of eight hours per day care, as indeed would have been the case from 16 February to 21 March. 104. From 10 February to 15 February 1984 and 22 March to his demise on 23 April 1984. It seems to me that the personal needs of the deceased would have increased and I would allow two hours as being reasonably necessary for caring services provided by his wife. 105. There is also a claim by the estate for Replacement Services, but it seems to me that any consideration of such services is properly considered under the Compensation to Relatives claim and not the Estate claim. CLAIM FOR LOSS OF SERVICES 106. In relation to the claim for loss of services the prospect of any duplication must be considered, particularly in circumstances where damages are sought to be recovered in separate actions by the estate and the dependants (see Fitch v Hyde Cates supra). In Swan v Williams (Demolition) Pty Ltd in (1987) 9 NSWLR 172 at 186 Samuels JA emphasised that: Where the claim is made by a widower it must be kept clearly in mind that his loss of pecuniary benefit in the ordinary case of a wife who was mainly a housekeeper is constituted by the value of the services of which he has been deprived by her death. It is not a question of estimating the loss of money which during the spouse's lifetime was contributed to the household but of estimating the value of the services which are no longer provided. 107. Any loss has also to be adjusted to take account of the fact that the surviving spouse was relieved of the burden of rendering gratuitous service for the deceased (Nguyen at 256.7) and that many of the services rendered were for the benefit of all of the family. The submission relies on the deprivation of support of the deceased's efforts in relation to the household. In Nguyen v Nguyen (1990) 169 CLR 245 at 256 Deane J said: When one spouse dies the assessment of the value of the lost benefit of the gratuitous services of the deceased spouse or homemaker must take account of the fact that those services were at least in part for the benefit of the deceased as well as for the benefit of the surviving spouse and of the fact that the surviving spouse is relieved of the burden of rendering gratuitous services for the deceased. 108. At 257 Deane J said …that the entitlement of a relative in such an action for damages to be proportioned to the injury sustained by reason of the death. The word he indicated introduced an element of what is reasonable in the circumstances. 109. The notion of what is reasonable has to take into account the need for the relevant services in the circumstances of the particular case. There is to be no confusion between the loss of services with the need for them. The need for caring services is quantifiable whether or not the plaintiff has suffered financially as a result of the need (see Medlin at 18). 110. The nature of the services that would have been provided by the plaintiff related to the completion of building work and painting together with services of lawn mowing, vegetable growing, shopping and the general provision for maintenance and cleaning in and around the home. 111. The completion of the building work and painting in the sum of $6,000 and $2,000 respectively has been paid by the plaintiff. In respect of each there is an allowance to be made, for materials used for the purposes of completing the building work and for paint. As a consequence in respect of the $6,000 spent on the building work it seems to me a sum of $4,000 would be reasonable and in respect of the painting the sum of $1,500 would be reasonable. 112. Generally speaking the deceased helped around the house more than might normally be expected because of the condition of plaintiff's back. It seems to me clear that the service lost has been the particular skill and labour the deceased brought to the household in gardening and growing vegetables, painting, lawn mowing, maintenance, taking out the garbage and cooking. The plaintiff's submissions have confused the distinction between labour and the fruit of such labour eg the growing of vegetables. It seems to me that the nature of the loss is the loss of the deceased himself. In those circumstances I consider it to be reasonable that from 23 April 1984 and for a period the equivalent to age 65 in respect of eight hours per week at the varying rates contained in the Dial an Angel report, Exhibit PX16 would be appropriate. Services are to be valued on the same basis as voluntary services are now valued in personal injury cases, that is at the commercial rate (see Nguyen at 265). INSURANCE 113. The fifth defendant was added as a defendant in its own right in this case, as a consequence of it insuring the third defendant. An issue has arisen between the parties on the question of the extent of the liability pursuant to the provisions of the policy. The actual policy or the details of the policy are not the subject of any evidence as no evidence has been capable of being produced by the fifth defendant in relation to the actual policy it held. The fifth defendant has not denied that it insured the third defendant nor is there any dispute between the parties that the liability in respect of the policy was limited to $50,000. 114. The terms of the statutory policy required at the relevant time is found in appendix 1 of Mills, 2nd Edition (1979) at 633. 115. Although the parties have not agreed that the terms of the policy were as contained in the statutory requirement apart from their agreement in respect to the $50,000 limited liability, it seems to me that the provisions of the policy would have at least contained the terms required by the statute. 116. As Mills at p 631 specifies every policy of insurance or indemnity was to contain only such provisions as were contained in the form of policy in appendix 1 (ie as contained at p 633). 117. I am satisfied that it is reasonable in the circumstances to infer that the dispute in relation to the insurance policy in this case revolves around that part of the policy that expresses the following: ... the employer shall be liable to pay compensation under the Act to or in respect of any person who is deemed by the Act to be a worker of such employer or to pay any other amount not exceeding $50,000 in respect of his liability independently of the Act for any injury to any such person, .... it is hereby further agreed that the above indemnity is made subject to the due and proper observance and fulfilment by the employer of the conditions hereunder, and the insure shall be (a) directly liable to any worker and in the event of his death to his dependants, to pay the compensation or other amount for which the employer is liable and in respect of which the employer is indemnified under this policy: and (b) bound by and subject to any judgment, Act or in respect of his liability independently of the Act and in respect of which the employer is indemnified under this policy. Provided lastly that this policy shall be subject to the Act and rules and regulations made thereunder, all of which shall be deemed to be incorporated in and form part of this policy. 118. No authority was put before the Tribunal by the parties dealing either with the provisions the subject of dispute in this case or in relation to the rules of construction to be applied in order to determine the question. A useful summary of the general principles of construing policies was to be found in Johnson v American Home Insurance Company (1998) 192 CLR 266 at 272-6 and in McCann v Switzerland Insurance (2000) 176 ALR 711 at 725-727. 119. Johnson was a case involving an injury and sickness insurance policy with maximum liabilities of comparatively modest sums. McCann concerned substantial policies in respect of professional liability, however, in either case the principles were relevantly said to be the same (see McCann per Kirby J at 725). 120. A useful analysis of the approach to the construction of the policy is contained in Johnson's case at 613-615. The disputed words in this case revolve around the question of liability from any injury to such person or in the event of his death to his dependants to pay the compensation or other amount for which the employer is liable and in respect of which the employer was indemnified under the policy. 121. The plaintiff contends that the extent of the liability of $50,000 relates to each of the actions that could or were brought against the employer. 122. The basic principles which assists in the approach to discovering the meaning of the disputed words was referred to in Johnson which indicated that the words be given their ordinary meaning. Such was to be discerned from the language, the structure and the apparent purpose of the document and any interpretative rules lawfully contained in the policy. A court or tribunal should give the words used their ordinary operation. 123. The Tribunal thus cannot make a new contract for the parties which is at odds with the terms of the contract to which they have agreed. If there is one meaning then the Tribunal cannot reject it simply because the result is unfair or otherwise undesirable. If the settled meaning is demonstrated, given the nature of the particular insurance market then the Tribunal is not to substitute a meaning which is at odds with it or that which is settled by past decisions. 124. Although it is fair to say that the authorities recognise that a liberal approach is to be adopted in giving meaning to words in the special field of insurance contracts. 125. A fair and reasonable construction is to be adopted from the language and logic of the document itself. If there is ambiguity it is not the insured who should bear the consequences of it because of the insurer's usually superior position to determine the provisions of the policy. 126. The meaning of words given their ordinary meaning is generally a question of fact for the Tribunal this appears to be the intention of the parties, so far as it appears from the terms which the parties have themselves chosen to express their meaning (per Samuels J Wilson v Harvey Trinder [1973] 2 NSWLR 870 at 874). 127. The policy is concerned relevantly with an injury to a worker and the object of the policy, in my view, relates to an indemnity of the employer to the extent of $50,000 in respect of an injury to a worker in circumstances independently of the Workers Compensation Act 1926 as amended. It seems to me that this is the promise the insurer made and has offered the policy, in those terms. 130. The plaintiff, in my view, could have put its submission in this case on the basis that because there is an ambiguity within the terms of the policy between the parties the insurer must be taken to have accepted the construction for which the insured contends because that construction is reasonably available in the language used (see Kirby J in Johnson at 618-619). But no such submission was made. 128. The extent of the coverage provided by the policy is determined by the words of the policy, namely, $50,000. The insurance cover given is against the happening of a specified event and the cover provided is in respect of that event. The fact that multiple litigation may be brought as a consequence of the event causing injury does not dispel the extent of coverage provided by the policy in respect to it. It seems to me that such a conclusion is both logical and reasonable. 129. It would seem to me that the construction intended for by the plaintiff would make a new contract for the parties which is at odds with the terms of the contract to which they have agreed. 130. The extent of the coverage provided by the policy is determined by the words of it at $50,000 and the policy gives cover only against the happening of specified events and that specified event has occurred, and a claim can be made on that policy to the extent of the coverage provided by it. For those reasons I prefer the view that the insurer is liable to pay a maximum of $50,000. INTEREST 131. S 94(1) of the Supreme Court Act confers a wide discretion to a Court awarding interest. That discretion is to be exercised in accordance with legal principle, which means that it must be exercised in conformity with the general principles governing the award of damages so that an award of interest on damages or for a personal injury should do no more than assist in the restoration of the plaintiff to the position which she would have been but for the defendant's negligence (Haynes v Bendall (1991) 172 CLR 60 at 66 and 67 and Cullen v Trappell (1980) 146 CLR at 17). 132. Such an award of interest for the period of delay affords the fair legal measure of compensation. 136. Reynolds JA, in Pheeney v Doolan (No 2) [1977] 1 NSWLR 601 at 611, identified the various aspects of that discretion, namely, that the section confers a fourfold discretion, 1) whether to award interest or not 2) whether on whole or part of the award 3) whether for the whole or part of the period between cause of action and judgment and as to the rate of interest.

133. Moffitt P in the same case indicated that while the essential nature of the award was to compensate a plaintiff by reason of delay in payment, there was no entitlement to interest but the Court must be persuaded that it is just between the plaintiff and the defendant to make such an award in relation to each of the elements referred above. 134. It is well established that interest in actions for damages for personal injuries is to compensate a plaintiff for the loss and detriment which she has suffered by being kept out of her money during the relevant period. However, it is not a purpose of an award of interest to punish a defendant for having been dilatory in conducting a case or settling a plaintiff's claim. 135. A broad practical approach to an award of interest was held as appropriate in British Transport Commission v Gourley [1956] AC 185 at 203, 204 and 208. In Bennett v Jones [1977] 2 NSWLR 355 in the context of a personal injury claim the defendant submitted that no interest should be awarded, and "by reason of the delay of the respondent's legal advisers in bringing the case for trial, and in supplying the material required of a plaintiff for various procedures of the Court". However, at 367 it was stated: It is relevant to inquire what is the relevance of the delay. If a plaintiff fails in some respects to give to a defendant all the information required under the Court's procedures or fails before the action to volunteer all information that would enable a defendant to tender or pay the sum eventually awarded, or if a plaintiff's default in Court procedures in some other was ought this attract a discretion not to award interest or to limit the award. Necessarily time elapses consistently with the reasonable conduct on the part of all parties in any cause of action for damages. 136. At 371 of Bennett Moffit P stated: Unless it can be seen that there is likely to have been some relevant detriment to the defendant it will be irrelevant that the plaintiff has not proceeded with complete promptness or that he or his solicitor has not properly and fully complied with all Court procedures, such cases of which the present is an example are to be distinguished from cases of deliberate delaying tactics of a plaintiff or defendant where it appears there is likely to be financial detriment to the other party. 137. The issue, however, was reconsidered in the context of a commercial case in Simonius Vischer & Co v Holt and Thompson [1979] 2 NSWLR 322. Moffit P at 338 stated: The weight of views variously expressed by this Court in Pheeney v Doolan (No 2) and Bennett v Jones is that the discretion is one to be exercised in each case having regard to what is fair between the parties. At 338:

While accepting the defendant has the advantage of not having to pay the money and has the use of it, does not seem to me that, to make an order for the payment of interest at commercial rates extending for long periods into the past is prima facie productive of unfairness to the defendant; and that it is the more so if he has had no notice, or no early notice of such a claim.

At 339:

... at least it is reasonable to conclude the plaintiffs had it in their power to bring their claim to a conclusion some years earlier than they did. 138. In Press v Driscoll (1988) Aust Torts Reports 80-175 Hope JA, with whom Priestley JA agreed, said: The plaintiff should not, as it seems to me, be awarded interest in respect of a period of delay due to his fault, which led to the amount of award being made in an inflated money value to the extent that the inflation resulted from a period of delay. In other words the verdict which the plaintiff obtained includes an added inflation factor of two and a half years change in money value. In my opinion this consideration in the circumstances justifies the taking into account of a period of delay in reducing the award of interest to the plaintiff. Although the total period of delay was three years I do not think the whole of the time should be taken out of the interest period. Delays of many kinds occur in proceedings such as this almost as a course. 139. However, this decision must be read in the light of Gogic as the views were taken into account by the High Court in the reduction of the rate of interest applicable to awards of damages in respect of non economic loss. 140. It is well recognised that a defendant faced with an inactive plaintiff has a tactical decision to make. That is to remain silent in the hope that the claim will never be pursued. But if silence is the course taken at least to some extent it has acquiesced in the plaintiff's inactivity. 141. In Anderson's (Pacific) Trading Co Pty Ltd v Karlander New Guinea Line Ltd [1980] 2 NSWLR 870 Hunt J determined that it was reasonable for the defendant to assume that the claim had been abandoned until the statement of claim was served in 1978. At 887 he indicated: However, I see no detriment to the defendant in having to pay interest for at least some period during which it had use of the plaintiff's money. The amount it must now pay by way of damages has been fixed in terms of 1971 currency but it is to be pad in terms of the reduced value of that currency almost 10 years later. In these circumstances I propose to award interest but not for the full period. HISTORY OF THE CLAIM 142. In respect of the Compensation to Relatives claim the statement of claim was filed on 16 April 1990. The matter came before the Tribunal for mention on 25 May 1990 and again on 18 June 1990 and 2 October 1990 to ascertain the position of the second and third defendants. On 2 October 1990 on application of the plaintiff the matter was stood over generally with liberty to restore on seven days notice. The matter next came before the Tribunal to ascertain the state of the matter on 16 March 1993. The matter was next before the Court on 27 August 1993 for an application to extend the time under the Limitation Act. On 16 August 1994 a notice of motion was to be filed seeking declaration or the identity of the third defendant's insurer. On 8 September 1994 a declaration was made that Waterside Services Pty Ltd was insured against causality under the Workers Compensation Act independently of that Act by Law, Union and Rock Insurance Co Ltd and that the plaintiff was entitled pursuant to s 6 of the Law Reform Miscellaneous Provisions Act 1946 to maintain against Sun Alliance and Royal Insurance Australia the action against Water Services Pty Ltd. 143. A similar application in respect of insurance was made on 3 July 1995 against NZI, against the National Insurance Company of New Zealand Ltd, thereafter documents were sought in respect of this matter from some of the defendants. Between 18 October 1995 and 9 May 1997 there were no appearances before the Tribunal and the matter came before the President on 9 May 1997 to determine the state of the matter. 144. On 23 June 1997 further short minutes of order were agreed upon wherein the plaintiff was to reply to the first, fourth and fifth defendants particulars by way of an extension of time on 28 July 1987. The first and fifth defendants were to file their defences by 18 August 1997. Discovery and interrogatories were then ordered in respect of the first, fourth and fifth defendants. On 10 August 1998 there was an order made to extend the time for which the plaintiff was to provide particulars for the first, fourth and fifth defendant. Extension of time was granted in which the plaintiff was to interrogate the fourth defendant. In June 1999 it was recorded that there were continuing problems with the insurance by NZI. 145. On 25 July 2000 an issues and listings conference was set down for 18 August. On that day the question of settlement was raised and difficulties in respect of identifying the insurer of the first and second defendants was raised although each was represented. 146. On 6 November 2000 the sixth, seventh and eighth defendants were ordered to file notices of appearances and the plaintiff was to reply to the sixth, seventh and eighth defendants request for particulars by 11 December 2000. Orders for discovery and verified answers to interrogatories were made and the matter was listed for further directions on 5 February 2001. 147. Discovery was delayed by the eighth defendant and the plaintiff was to supply Pt 33 r 8A particulars by 21 April 2001. 148. On 25 June 2001 an order for an extension of time within which the plaintiff was to provide further particulars to the eighth defendant was made and similarly an extension of time for discovery by the eighth defendants. After a number of other mentions before the Tribunal on 30 April 2002 the matter was set down for hearing before myself, which concluded on 21 June 2002. 149. There were significant periods when there was inactivity in respect to the pursuit of this claim and it seems to me that this should be brought into account, even though this was a matter of some complexity and because of the long history that is general in these matters. There was also some delay in the provision of particulars on a number of occasions and the difficulties that were indicated in respect of identifying the insurers. However, the fourth defendant in this matter was identified and joined in 1994 and the submissions made in respect to it do not explain the delay as a consequence of difficulty in identifying the insurer. The delay seems to me related to the New Zealand Insurance which played no part in these proceedings. 150. Additionally it was indicated that the sixth and seventh defendants were not joined earlier because Mr Fischer, who gave evidence in this case identifying the suppliers was not found, I would infer, until late in the course of these proceedings. No explanation was given as to why he was not able or capable of being found earlier and that the sixth and seventh defendants thereby joined at an earlier time. 151. Justice requires an award of interest to the plaintiff. I am persuaded that some adjustment is appropriate in respect of the interest payable. 156. The basis of calculation in the Furzer Report Sch B, Exhibit Px13, has utilised escalating income over the intervening years in arriving at the loss. Additionally all the loss has not been suffered for the whole period. Consequently an allowance of half the rate of interest ought, in my view, for those reasons be made (Luntz, 4th Ed, at 11.3.17). 152. With the above considerations in mind but allowing for inevitable delay not attributable to the plaintiff I have come to the conclusion that I should allow interest for a period of 12 years only. 153. Rates under Sch J vary greatly over the period and it seems to me the application of the mean rate over the period of 13.9 per cent would be reasonable. The widow and sons' claim therefore should be at the rate of 7 per cent for 12 years (see Luntz 4th Ed at 11.3.17). 154. In relation to the Estate claim I have already given a ruling that the basis upon which the plaintiff was able to avoid the Limitation Act was founded upon the provisions of s 12A of the Dust Diseases Tribunal Act. But for the provisions of that section it would seem to me that the plaintiff would not have been entitled to bring a claim as she would have been prevented from doing so. 155. The statement of claim in respect of the Estate was filed on 27 October 2000 by 8 March 2001 all defences were filed and on 25 June 2001 extension was made within which the plaintiff was to provide further particulars to the eighth defendant and the eighth defendant was given an extension of time to give discovery. All expert reports were to be served not later than 31 July. An amended defence by the eighth defendant was filed on 21 November and the matter was set down for hearing on 30 April 2002 and was completed at the same time as the Compensation to Relatives action on 21 June 2001. 161. I am prepared to allow interest at the rate of 10 per cent for four years. Ten per cent representing the average of Schedule J from 1998 to 2002. APPORTIONMENT 156. The defendants have indicated to the Tribunal that it was unnecessary for it to determine the question of any apportionment between them. FUNERAL EXPENSES 157. The sum in accordance with Exhibit Px 17 which has been agreed upon by the parties is $1,204. SUMMARY CLAIM ESTATE COMPENSATION TO RELATIVES WIDOW SON PECUNIARY LOSS 9,803.00 101,188.00 6,310.33 GRATUITIOUS SERVICES 1,500.00 Painting 24,985.00 4,000.00 House repairs LOSS OF SERVICES 96,272.00 FUNERAL EXPENSES 1,204.00 DDB DEDUCTIONS -1153.00 -54,749.00 -1,740.00 Sub - Total $33,635.00 $149,415.00 $4,570.33 Interest 10 per cent pa for 4 years = $13,454.00 7 per cent pa for 12 years 7 per cent pa for 12 years $125,509.00 $3,839.00 Total $47,089.00 $274,924.00 $8,409.00

Verdict and judgment in the Estate Claim in the sum of $47, 089. Verdict and judgment in the Compensation to Relatives Claim: · for the son in the sum of $8,409 · for the widow in the sum of $274,924 I make an order for the defendants to pay the plaintiff's costs.

Mr J L Sharpe instructed by Turner Freeman appeared for the Plaintiff. Mr G M Watson instructed by Ebsworth & Ebsworth appeared for the Fourth Defendant. Mr N E Chen instructed by Moray & Agnew appeared for the Fifth Defendant. Mr A C Scotting instructed by Acuiti Legal appeared for the Sixth and Seventh Defendants.

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