Adams v Brewings Holdings P/L and Ors

[2006] NSWDDT 12

Dust Diseases Tribunal

of New South Wales

CITATION:	Adams v Brewings Holdings Pty Ltd and Ors [2006] NSWDDT 12
PARTIES:	Barry Charles William Adams (Plaintiff) Brewings Holdings Ltd (First Defendant - Judgment 9 December 2002) Marrickville Margarine Pty Ltd (Second Defendant) Better Brakes Pty Ltd (Third Defendant) Central Sydney Area Health Service (Fourth Defendant) Hsekarb Pty Ltd (Fifth Defendant - Discontinued 25 March 2003) Agstal Ltd (Sixth Defendant)
MATTER NUMBER(S):	345/02
JUDGMENT OF:	O'Meally P
CATCHWORDS:	Dust Diseases Tribunal :- Claim for provisional damages - Plaintiff suffering ARPD and mild asbestosis - Unrelated co-morbidities - Provisional damages assessed.
LEGISLATION CITED:	Dust Diseases Tribunal Act 1989
CASES CITED:	Bonnington Castings Ltd v Wardlaw [1956] AC 613; Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164; Griffiths v Kerkemeyer (1977) 139 CLR 161
DATES OF HEARING:	3/05/2006
DATE OF JUDGMENT:	05/03/2006
EX TEMPORE JUDGMENT DATE:	05/03/2006
LEGAL REPRESENTATIVES:	Mr D G Letcher, QC instructed by Turner Freeman appeared for the Plaintiff Mr G P F Rundle instructed by Ellison Tillyard Callanan; Thompson Cooper Lawyers and Hicksons appeared for the Defendants

JUDGMENT:

O'MEALLY P

1 This is an action for damages by Barry Charles William Adams against Marrickville Margarine Pty Ltd, Better Brakes Pty Ltd, Central Area Health Service and Agstal Ltd. For reasons which are unnecessary to recite judgment was entered in favour of the first defendant on 9 December 2002.

2 By amended statement of claim filed in court today, the plaintiff alleges that as a result of negligent exposure to asbestos in the course of employment by each remaining defendant he was exposed to asbestos dust and fibre and as a result has contracted asbestos related pleural disease (ARPD) and asbestosis.

3 Before he was employed by Marrickville Margarine Pty Ltd the plaintiff had been employed by H Jones and Company (Sydney) Pty Ltd (Jones) as an apprentice fitter machinist. That is of some, but little significance for during the course of his apprenticeship and employment thereafter he was exposed to asbestos about six times a year, on each occasion for ten to twenty minutes. That corporation is not a party to the proceedings, but it is the fact that all exposure to asbestos makes a material contribution to the development of asbestos disease. A material contribution is one that is not de minimus (see Bonnington Castings Ltd v Wardlaw [1956] AC 613 at 621) so even though slight, his exposure while employed by Jones would have contributed to his disease.

4 The defendants have come to an agreement, so that if found liable it will be unnecessary to determine the proportion which each must bear to contribute to the plaintiff's damages. All defendants have been represented by Mr Rundle of counsel. It is not now contentious that the plaintiff does suffer ARPD. Yesterday the plaintiff sought to amend his statement of claim so as to allege he suffered asbestosis as well as ARPD and, as noted, this morning an amended statement of claim containing that allegation was filed with the consent of the defendants. It is now conceded that the plaintiff is entitled to a verdict against each defendant.

5 The plaintiff’s claim is for provisional damages pursuant to s 11A of the Dust Diseases Tribunal Act in respect of the conditions of ARPD and asbestosis. In view of the agreement between the defendants it is unnecessary to consider the nature and duration of exposure to asbestos in the employ of each, but it will become necessary to consider whether, in addition to ARPD, the plaintiff has developed asbestosis, and what contribution the exposure to asbestos in the employ of Jones made to his disease. It is convenient to deal with that aspect of the case now.

6 The extent to which asbestos exposure makes a contribution to asbestos disease, is determined by a consideration of two factors, that is to say duration of exposure and intensity of exposure. The plaintiff's account of exposure in the employ of Jones was not shaken by cross-examination, and doing the best I can on the evidence available it is my view that such contribution would be in the order of 1 to 2½ per cent.

7 The plaintiff first began to experience shortness of breath in February 1988. That breathlessness has increased with the passage of time. In June 1989 when there was a spill of chlorine at the place where the plaintiff was then working chest x-rays were arranged for him and other workers. The plaintiff’s x-ray examination revealed the presence of pleural plaques. In 1993 the plaintiff consulted Dr Gianoutsos by reason of symptoms of breathlessness, but it seems no course of treatment was or usefully could then have been undertaken. In the middle part of 1994 the plaintiff began to experience chest pain and in April 1995 he underwent coronary by-pass surgery at Westmead Hospital. Thereafter, the plaintiff has had an unfortunate history of cardiac disease involving repeated insertion of stents, and though the coronary arteries are functional his cardiac disease affects parts of his heart and other heart vessels.

8 Apart from Dr Gianoutsos the plaintiff has consulted Dr Despas, a thoracic physician. For coronary artery surgery and subsequent treatment he has been seen by Dr Chard and Dr Russell. No report from any of these doctors is in evidence, but it should be observed that in the circumstances, by reason of the efluxion of time and the failure of the plaintiff to continue to consult them, they would be of little forensic value. For both the plaintiff and the defendants I have a series of reports from thoracic and cardiac physicians.

9 It is useful to commence by examining the results of x-ray and CT examinations conducted at various stages since the plaintiff began to experience symptoms of ARPD.

10 In 2004 Dr Hines interpreted high resolution CAT scans of the plaintiff in supine and prone positions. He noted fairly extensive calcified and non calcified pleural plaques in both hemithoraces which he thought to be consistent with moderately severe ARPD. There was minimal subpleural fine interstitial fibrotic change at the lung bases and this he thought to be consistent with minimal changes of basal asbestosis. In April 2006 Dr Hines compared that CT study with a further one conducted in March of the same year. There was no diffuse pleural thickening, but extensive calcified and non-calcified pleural plaque formation was again noted. Again there was minimal subpleural fine interstitial fibrotic change at the lung bases. There was no evidence of change between 2004 and 2006.

11 X-rays reported on by Dr Steinberg in December 1995 confirmed widespread pleural plaque formation and features of asbestosis were noted on high resolution scan.

12 Dr Julian Lee was qualified by the defendant. In a report of December 2002 he expressed the view that the plaintiff did not have asbestos related diffuse pleural thickening nor radiological evidence of asbestosis. In a report of October 2005 he observed that both costophrenic angles were preserved, the significance of that being that asbestosis first appears radiologicaly in the costophrenic angles and begins to blunt them. Dr Lee expressed the view that neither asbestosis nor asbestos related diffuse pleural thickening had been demonstrated. The view of Dr Lee was, at one stage, shared by doctors who have been qualified by the plaintiff, but now Dr Lee and Dr Clarke, who was qualified by the plaintiff's solicitors, are alone in the view that the plaintiff does not have asbestosis.

13 The x-ray and CT findings establish to my satisfaction that the plaintiff has ARPD and mild asbestosis. Dr Burns, who is, as noted, a thoracic physician with considerable experience, first saw the plaintiff in August 2002 and seemingly again in 2004. It is not apparent from his report of February 2006 that he again saw the plaintiff in consultation, but his views at that time should be noted. Relevantly, Dr Burns expressed the view that the plaintiff had mild asbestosis and that mild asbestosis does not normally progress but might do so. As a general rule ARPD remains stable but progression occurs in some cases. So far as the plaintiff was concerned he thought that his ARPD was not likely to progress unless he experienced trauma or contracted severe pneumonia.

14 Dr Clarke saw the plaintiff in 2005 and on the basis of material supplied to him, which included x-ray and CT reports and lung function studies, concluded that the plaintiff's respiratory function, although abnormal, had improved, a fact which he found encouraging. He noted that apart from cardiac disease the plaintiff had also developed diabetes and one infers from the manner in which he referred to those in his report of December 2005 he believed they were making a contribution to his respiratory incapacity.

15 The defendant urges upon me that the plaintiff's respiratory disability is more the result of cardiac disease than asbestos disease.

16 In evidence are the reports of Dr Yainnikas, a consultant cardiologist qualified by the plaintiff's solicitors for the purposes of this case and the reports and oral evidence of Professor Michael O'Rourke, Professor of Medicine at the University of New South Wales, whose field of expertise is cardiovascular medicine and hypertension. He is highly qualified and an expert of national and international standing.

17 Dr Yainnikas submitted the plaintiff to a stress echocardiogram and having examined the results came to the view that the plaintiff's exercise capacity was limited by dyspnoea rather than angina. Here it is relevant to record that the plaintiff has over a long period experienced symptoms of angina which are alleviated by use of a nitroglycerine spray. Dr Yainnikas went on to say this:

This restriction is not as a result of his cardiac disease considering the absence of any signs of heart failure, relatively good ventricular function and absence of ischaemic changes when he was severely limited during his stress study.

18 He thought that the plaintiff had only mild left ventricular impairment. He noted that the electrocardiograph taken during the course of the stress test did not reveal ischaemia and thought it reasonable to presume that the plaintiff's survival was only minimally diminished by underlying heart disease.

19 So far as his life expectancy is concerned, Professor O'Rourke initially thought it to be of five years duration, but by reason of the plaintiff's having lost weight and the improvements otherwise noted on examination now thinks it to be in the order of ten years. Professor O'Rourke disagreed with the opinion of Dr Yainnikas that limitations on the plaintiff’s exercise capacity were not a result of his cardiac disease. This was because Dr Yainnikas, though excluding the coronary disease as a factor, did not consider the presence of left ventricular hypertrophy. It was Professor O'Rourke's view that left ventricular hypertrophy usually causes breathlessness, but in the instant case he was unable to say how much of the plaintiff's shortness of breath was due to that phenomenon. It was his view that left ventricular function would not be detected by a stress test of the type conducted by or for Dr Yainnikas and hence his failure to refer to it.

20 I am satisfied that there are two factors contributing to the plaintiff's shortness of breath. They are his asbestos disease and his cardiac disease. I am, however, unable to determine how much of his breathlessness is due to asbestos disease and how much is due to cardiac disease.

21 The effect of decisions of the High Court of Australia in Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164 is to impose an evidentiary onus upon a defendant to disentangle the factors where there are more than one factor, for one of which a defendant is liable, and one or more not. In the circumstances, accepting the evidence of Professor O'Rourke, it has been and remains impossible for the defendants to do so.

22 In assessing the plaintiff's entitlement to general damages it is appropriate to have regard to the manner in which his life has been changed by the onset of symptoms of breathlessness and also to the situation as it has been revealed by objective examination and opined upon by the doctors whose reports are in evidence. The consequences of the cardiac disease, so far as they contribute to dyspnea must be ignored. So far as they affect life expectancy, they will be considered.

23 There has been no relevant x-ray or CT change during the period over which studies have been undertaken, nor has there been any significant deterioration in the plaintiff's capacity to engage in physical activity. The plaintiff did say that his activity had been slowed down by reason of breathlessness. Whereas before the onset of breathlessness he could and did mow his lawns, that is at the front and the rear of his home, in an hour and a half, it now takes him something in the order of an hour or an hour and a quarter to mow his front lawn.

24 At a time when he was unaware that he was being observed, the plaintiff mowed his front lawn. His activity was videotaped and the tape is in evidence. There was a boat on a trailer belonging to his son on the front lawn, but the exercise of mowing that lawn was completed in under 20 minutes. It is the case that the plaintiff did take a number of rests, the longest I observed on the video tape admitted into evidence was in the order of 20 or 30 seconds, and his movement when pushing his lawnmower was slow.

25 The forensic value of observation evidence is determined by a comparison of what a plaintiff says with what is shown and whether that comparison reveals an inconsistency. An inconsistency was demonstrated between what the plaintiff was shown to have done and what he said he was able to do. The plaintiff remains fairly active, he generally plays at least one game of eighteen holes of golf per week, sometimes more. He is able to walk moderate distances and ascend two flights of stairs without breathlessness. He attends to the shopping himself and cares for all aspects of his existence. He has done so since he was widowed some years ago.

26 Taking these matters into account it is my view that an appropriate sum to compensate the plaintiff for the discomfort of his asbestos diseases, in the past and into the future, is $40,000 and that half should be allocated to the past.

27 I am not persuaded any allowance should be made for loss of expectation of life.

28 A claim is made in a general sense for Griffiths v Kerkemeyer (1977) 139 CLR 161 expenses for the future. The evidence to support such a claim is "thin to the point of anorexic." The only evidence on the matter comes from the report of Dr Burns of 6 February 2006 in which he said:

Should ... progression of impairment occur and hence disability from it, then the increased respiratory burden for him will be potentially quite troublesome as he no longer has a wife to help care for him. When last measured his oxygen saturation level was 96%, ie at the lower limit of the normal healthy range. If the saturation level falls to near 90% then he will need supplemental home and portable oxygen. This degree of disability is usually regarded as 100%. To go about his daily activities then he would need assistance to shop, dress, bathe, cater, cook, visit the doctor, et cetera. Depending on the level of disability and his oxygen requirements he would need available help for at least 2 hours per day, increasing as he becomes older because an established respiratory disability magnifies the respiratory deterioration which occurs when aging.

29 Dr Burns was required to engage in a degree of speculation, and I would not conclude from what I have quoted that at any time in the near or distant future the plaintiff will require two hours per day assistance. Doing the best I can to do justice between the parties I think it appropriate to allow an amount as a cushion and that amount I consider to be appropriately assessed at $5,000.

30 For the purpose of calculating interest the entitlement to general damages began when symptoms first presented, that is in 1988.

31 Interest on general damages is now agreed at $7,200.

32 Thus the plaintiff's entitled to judgment made up as follows:

General damages $40,000.00

Interest on past general damages $7,200.00

Future Griffiths v Kerkemeyer expenses $5,000.00

Making a total of $52,200.00

33 It should be observed that no allowance has been made for past or future medical and hospital expenses, they being paid by the Dust Diseases Board.

34 In assessing damages I have excluded the 1 to 2½ per cent contribution to his disease made by exposure his employment by Jones.

35 There will be a verdict for the plaintiff and judgment in the sum of $52,200. The defendants will pay the plaintiff’s costs as agreed or assessed.

36 I order that the plaintiff may recover further damages in the event he develops pleural mesothelioma, peritoneal mesothelioma or asbestos related carcinoma of any organ.

Mr D G Letcher, QC instructed by Turner Freeman appeared for the Plaintiff

Mr G P F Rundle instructed by Ellison Tillyard Callanan; Thompson Cooper Lawyers and Hicksons appeared for the Defendants

I certify that the previous 36 paragraphs

Are the reasons for Judgment of His Honour

Judge O’Meally

Associate