Agius v Amaca and Anor

[2007] NSWDDT 13

Dust Diseases Tribunal

of New South Wales

CITATION:	Agius v Amaca and Anor [2007] NSWDDT 13
PARTIES:	Joseph Agius (Plaintiff) Amaca Pty Ltd (First Defendant) Amaba Pty Ltd (Second Defendant)
MATTER NUMBER(S):	400 of 2004
JUDGMENT OF:	O'Meally P
CATCHWORDS:	ARPD - Asbestosis - Dust Diseases Tribunal :- provisiobal damages - fear of developing further disease - loss of earning capacity
DATES OF HEARING:	24-25 July 2007
DATE OF JUDGMENT:	25 July 2007
EX TEMPORE JUDGMENT DATE:	25 July 2007
LEGAL REPRESENTATIVES:	Mr G F Little, SC instructed by Turner Freeman, appeared for the Plaintiff Mr D J Hooke instructed by Ellison Tillyard Callanan, appeared for both Defendants

JUDGMENT:

O'MEALLY P

1 Joseph Agius suffers from asbestosis and asbestos related pleural disease. He contracted those diseases as a result of exposure to asbestos when employed by Hardie Ferodo Pty Limited, now Amaba Pty Limited, and by James Hardie and Coy Pty Limited, now Amaca Pty Limited. He seeks provisional damages for the consequences of those diseases. His entitlement to damages from both defendants is not disputed. Both defendants have been represented by the same solicitors and counsel. What is in dispute is the way the plaintiff has been affected by the diseases from which he suffers.

2 The first area of dispute is whether the plaintiff, in addition to the two diseases mentioned, is also suffering pleural pain. The plaintiff has pleural plaques which by themselves are not usually disabling. They are a marker of exposure to asbestos. It sometimes happens, however, that nerves become entrapped in the plaques which form on the pleural surface and oftentimes they calcify. When that happens they can induce severe and unremitting pain. It can also happen that nerves or the branches of nerves are irritated by plaques which have formed on the pleura.

3 In considering whether the plaintiff does suffer pleural plaque pain or whether the pain he suffers is due to other factors it is relevant to note some of his past medical history.

4 The plaintiff has suffered epigastric pain and has been treated for epigastric abnormalities. He has undergone endoscopic examination on two occasions; they were in 1999 and in 2000. Peptic irritation was demonstrated upon those examinations. A course of treatment was prescribed, but the plaintiff continued to experience pain and discomfort. Dr Heiner, who arranged for the endoscopies to be carried out, has been treating the plaintiff since 1990. He is of the view that the plaintiff's complaints of pain are pleural in origin. In evidence the plaintiff located the pain he experienced being under his ribs on both the left and right sides. He said he also experienced a burning sensation under his tie. He said the pain could present at any time during the night. It came quickly and went quickly. He experienced it in the day time as well, and it occurred without a precipitating factor and was getting worse.

5 In cross-examination he conceded to Mr Hooke, counsel for the defendants, that his chest pain responded to Panadol or Panadeine. It was a pain that, at least at one stage, he likened to indigestion. He said it was not a pain that he had had for many years, but he also said it was a pain that he had had for many years. To Dr Allen, a thoracic physician who was qualified by his solicitors for the purposes of this case, he said that he did not suffer chest pain. Both Dr Allen and Dr Heiner gave evidence that the diagnosis of pleural plaque pain is one made by exclusion, that is if other causes cannot be found for the pain then, if there is pain of the appropriate quality and character together with pleural plaques, the likelihood is that the pain is caused by pleural plaques.

6 PX6 is the report of Professor Crammond which recites her specialty as pain management and palliative medicine. Her view is that "The pain of pleural plaques is at best only particularly (sic: partially) responsive to opioids". Earlier in her report, that is at par 6.3, she said, "The pain associated with pleural plaques is notoriously difficult to treat". She recited that the plaintiff had not had a trial of simple analgesia such as paracetamol. The fact is the plaintiff had used such analgesia and obtained relief soon after. It was Professor Crammond's view that it was unlikely that the plaintiff's pain would improve and the likelihood was that it would worsen. The progress and nature of the plaintiff's chest pain would seem to indicate that the expectations and predictions of Professor Crammond have not been realised. The plaintiff’s description of the pain and its response to analgesia does not lead me to the view that it is more probable than not that his chest pain is pleural in origin.

7 I should have said earlier that in assessing the views of all experts the acceptance of their views must be subject to my findings of fact on relevant matters rather than what the plaintiff is recorded as having told them. There are some differences in the plaintiff's evidence and in the histories the doctors have recorded in their reports and for that reason I think it appropriate not to accept as accurate all of the histories recited in them.

8 Dr Heiner also is of the view that the plaintiff's pain is pleural. He, of course, is a thoracic physician. He frequently gives evidence in cases before the Tribunal. He has a familiarity with dust diseases particularly those caused by exposure to asbestos. He is a person of strong views. Sometimes his views are expressed as an advocate would express them. In this case, as in others, he declined to make concessions which, I would have thought, were appropriate to the circumstances. He described the plaintiff having experienced two types of pain. That is not the way I view the plaintiff's description of his chest pain. I accept that he has chest pain, but I am not persuaded to the view that it has been caused or affected by the presence of pleural plaques.

9 The second area of dispute is whether the plaintiff has suffered a psychiatric disorder as a consequence of receiving the diagnosis of asbestos disease. He speaks of having "dropped my bundle” when he received the diagnosis. Of recent years there has been a significant amount of publicity in the print and air media concerning asbestos and the diseases it can cause. The plaintiff has seen programmes on the television channels describing the devastating effects of asbestos.

10 To Dr Larder, a psychiatrist qualified by his solicitors, the plaintiff has given a history of fear, anger and sleep deprivation. He has expressed concern that a shortened life is something which will affect him if he develops further asbestos disease. Dr Larder in his report PX5, on page 5 said:

The major issue for Mr Agius, in my view, is his sense of rage that after a life of hard work [and business success] his life plan to reap the rewards of his hard work throughout his life has been “taken from him”. He is struggling to live with the uncertainty of having an unhealthy life ahead or indeed a reduced life span. The mental state examination was marked by a depressed mood. His gross cognitive functions were intact [a dementing process was not evident]. Mr Agius does suffer from a psychiatric condition as a result of his diagnosis with and symptoms of asbestos related disease. The presentation is a form of natural grief reaction…

11 Dr Larder’s report was a long one and a number of complaints set out between line 50 on p 4 of the report and line 15 on p 5 are not coincident with the plaintiff's evidence. In particular the plaintiff has informed two doctors, that is Professor Crammond and Dr Unwin, who was qualified by the defendant, that he had no trouble sleeping.

12 Nevertheless, it is not surprising that the plaintiff would have a fear of developing another asbestos disease. It is not surprising that that fear would extend to his wife and family. Cases heard in this court and in this State have been reported in the media. I accept that the plaintiff does have a genuine and real fear that he will develop further asbestos diseases, but because of the lack of consistency on material matters between the plaintiff's evidence on factual matters and the history recorded in the doctors' reports I am not persuaded to the view that the plaintiff has a psychiatric disorder. I am, however, satisfied that he has a real genuine fear to which I have just adverted.

13 The plaintiff first saw Dr Heiner in 1990 because of complaints of asthma. Dr Heiner continues to treat him for that disorder. However, in evidence Dr Heiner expressed the view that the plaintiff's respiratory disability was due to the asbestos diseases from which he suffered and that his asthma plays no part.

14 A contrary view was expressed by Dr Allen. Dr Allen is also a thoracic physician who frequently gives evidence before this Court and whose reports are frequently tendered. He was and is an objective expert. Dr Allen's view in September 2005 was that the plaintiff's asbestos disease was the major cause of his respiratory impairment. In April 2007 he expressed the view that respiratory function tests provided evidence that there was a progression of the plaintiff's asbestos pleural disease and asbestosis. It was Dr Allen's view that the plaintiff was suffering benign asbestos pleural disease and also suffered asthma and obesity. He then thought that the plaintiff's respiratory impairment was "…at around 10% Impairment of the Whole Person and with some of the contribution from obesity and asthma". He also said, "I believe that his respiratory impairment from asbestos disease is around 5% Impairment of the Whole Person with the remainder of obesity and asthma". In this respect Dr Allen's view was not coincident with that of Dr Heiner. As noted, Dr Heiner excluded asthma as a factor in the plaintiff's respiratory difficulties and he seemed to be of the view that the plaintiff was not obese. In the light of his findings Dr Allen expressed the view that 50 per cent of the plaintiff's respiratory difficulties was due to asbestos diseases and 50 per cent to asthma and obesity.

15 I prefer the evidence of Dr Allen to that of Dr Heiner. I come to that view because of Dr Allen's objective approach to the questions committed to him which was in marked contrast to the advocacy, as I view it, of Dr Heiner and his reluctance to make concessions which the evidence called for. Nevertheless, it is important to bear in mind that asbestosis is a progressive disease and the likelihood is that the plaintiff's condition with the passage of time will deteriorate. At present I would categorise his asbestos diseases as being in the range of mild to moderate. Whether they will deteriorate rapidly or slowly is impossible to determine but the likelihood is that his asbestosis will progress.

16 Bearing in mind these factors I think an appropriate sum to award the plaintiff for general damages is $85,000.

17 The plaintiff claims an amount for loss of earning capacity. A report, described as a forensic accountant's report, prepared by Mark Thompson, was put in evidence but I was not addressed upon its contents by either counsel. I indicated that I would look at only such parts to which my attention was specifically referred. I have looked at some parts of it, but I am unable to draw any conclusion as to what the plaintiff's future earnings may have been.

18 The plaintiff, though with little formal education, has done extremely well in life. He is plainly an intelligent and industrious man who, through hard work over many years, has constructed a source of comfortable income. Apart from working and managing a supermarket business in which he worked seven days a week, he has purchased properties, renovated them and sold them. He says that he would have continued doing this but for his asbestos disease. I am not persuaded that is the case.

19 I am, however, persuaded that he does have a loss of earning capacity. The evidence, in the state in which it is, is not, however, of much assistance. He is currently 63 years old. There is no claim for past loss of income. Doing the best I can to do justice between the parties I think a sum appropriate to compensate the plaintiff for loss of earning capacity is $40,000.

20 A claim is made for the costs of future care. The defendant submits a sum appropriate to be awarded to the plaintiff under that head is $10,000. Counsel for the plaintiff submits an appropriate sum is $20,000. There is not a great deal in the evidence to provide an accurate conclusion on whether the plaintiff will require care sooner or later, though probably it is later, nor of what type and character. Doing the best I can in the light of the evidence I think a sum appropriate to award the plaintiff for the costs of future care is $15,000.

21 In 2005 the view was expressed that statistically the life expectancy of an Australian male of the plaintiff’s age was then 17.87 years. The view has been expressed that the plaintiff may lose between three and five years of life because of his asbestos disease. I think the sum appropriate to compensate the plaintiff for loss of expectation of life is $5,000.

22 The evidence leads me to the view that the first symptoms of asbestos disease presented in 2004. I think it fair that the amount of general damages to allocate to the past be $5000. Thus the plaintiff is entitled to damages made up as follows:

General damages $85,000.00
Interest on past general damages $300.00
Loss of earning capacity $40,000.00
Costs of future care $15,000.00
Loss of expectation of life $5000.00
HIC payments are agreed at $2,464.85
Making a total of $147,764.85

23 There will be verdict and judgment for the plaintiff for $147,764.85. The defendant will pay the plaintiff's costs as agreed or assessed.

24 I order that the plaintiff may claim further damages should he develop any of the following diseases: mesothelioma, asbestos induced carcinoma or lung cancer.

Mr G F Little SC instructed by Turner Freeman appeared for the plaintiff

Mr D J Hooke instructed by Ellison Tillyard Callanan appeared for the defendants