Aloysius Bloemen v State of New South Wales

[2002] NSWDDT 3

Dust Diseases Tribunal

of New South Wales

CITATION:	Aloysius Bloemen v State of New South Wales [2002] NSWDDT 3
PARTIES:	Aloysius Bloemen State of New South Wales
MATTER NUMBER(S):	458 of 2001
JUDGMENT OF:	Curtis J at 1
CATCHWORDS:	Damages :-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	7 March 2002, 27 March 2002
EX TEMPORE JUDGMENT DATE :	03/27/2002
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr D J Letcher QC instructed by Turner Freeman FOR DEFENDANT Mr J L Sharpe instructed by Vandervords

JUDGMENT:

1. Between 1965 and 1983 the plaintiff was employed by the defendant in the right of the Department of Public Works at Port Kembla and in his employment was exposed to the inhalation of asbestos dust and fibre. He now claims damages from the State of New South Wales in consequence of his contracting the fatal disease of mesothelioma.

2. When the hearing commenced at the plaintiff’s home on 4 March 2002 Mr Sharpe for the defendant said that "the issue in the case from the defendant’s point of view had always been that if the plaintiff proved his exposure the defendant would accept he is entitled to his verdict". The defendant in answer to interrogatories conceded that during the period of the plaintiff’s employment at Port Kembla he was exposed to the inhalation of asbestos fibre at sites where construction and building work was being performed.

3. There was earlier an issue as to whether that disease which the plaintiff had contracted was in fact mesothelioma, however, that appears now to be resolved to the defendant’s satisfaction. As the case has proceeded the only issue remaining before me is the quantification of his damages.

4. The plaintiff was born on 28 June 1918 in Holland. That he is a man of hardy disposition is evidenced by the fact that in 1945 he was awarded a silver medal for his services to Holland in the resistance movement. In 1983 at the age of 65 he retired from his service with the defendant and has not worked since. Prior to approximately May 2001 he was in good health. He was then just short of his 83rd birthday. Notwithstanding his age the applicant obviously enjoyed a satisfactory quality of life. An annual health assessment for the elderly, prepared on 14 November 1999 by Dr Keays, the plaintiff’s general practitioner, recorded that the plaintiff was basically satisfied with his life, he was in good spirits most of the time, that he was happy most of the time and that he thought it "wonderful to be alive now". The doctor also recorded that the plaintiff thought himself full of energy (DX1).

5. By May 2001 the plaintiff noticed pain on the left side of his chest. By August 2001 it was much worse. He was referred to Shell Harbour Public Hospital where Dr Marantos drained about two and a half litres of fluid from his lungs. The plaintiff was hospitalised between 23 August 2001 and 30 August 2001. On 19 September 2001 it was again necessary to repeat this aspiration of fluid. On 3 August 2001 the plaintiff was admitted to St George Hospital where he underwent a thoracoscopy and pleural biopsy which revealed his disease of mesothelioma. The plaintiff was discharged from that hospital on 5 October 2001. After an initial period of weight gain and improvement the plaintiff’s pain returned. He is now breathless on slight exertion and breathless when walking. It is apparent that he is severely disabled and that his pain, disability and disablement will deteriorate to the point of death.

GENERAL DAMAGES

6. I have on many occasions published reasons for judgment in which I have described the course of the disease of mesothelioma in its terminal stages. I record here that the plaintiff’s future is one of increasing pain, breathlessness and hopelessness and that the defendant’s solicitor desires no further reasons for an award of general damages in the sum of $165,000.

7. I award interest on $100,000 at the rate of 2 per cent from May 2001 in the sum of $1,840.

LOSS OF EXPECTATION OF LIFE

8. The sums awarded pursuant to this head of damages are conventional because it is beyond the learning of mortals to divine whether the future is felicitous or otherwise. There remains the possibility, notwithstanding the plaintiff’s age, that he may have had 10 of the sweetest and most felicitous years of his life before him, and I allow $10,000 under this head.

OUT OF POCKET EXPENSES

9. It has been agreed between the parties that I will today award no sum for past and future out of pocket expenses relating to medical treatment because of the probability that these sums will be borne by the Dust Diseases Board. If that expectation is unsatisfied Mr Sharpe for the defendant concedes that the Tribunal may reconsider the matter notwithstanding the entry of this judgment.

PAST AND FUTURE CARE AND SERVICES

10. That leaves the only contentious matter in issue as the amount to be awarded in respect of past and future care and services. Dr Burns as at 18 December 2001 thought that the plaintiff had "six to 12 months to live, more likely six than 12." Dr Clarke on 18 March 2002 felt "he could live for a further four and a half months." I conclude that the probability is that the plaintiff will die on 31 August 2002.

11. I have before me two reports in which experts express opinions as to the need for the services required by the plaintiff in his final months and also their commercial value; the report of Dr Heather Tchan based upon her assessment of 21 January 2001 and the report of Ms Joanne Oates dated 26 February 2002. I prefer the opinion of Ms Oates because she was informed by contemporary medical opinion, and because she appears to take a more objective view as to the distinction between the need for minor gratuitous services and their provision, in the absence of need, from natural love and affection. Further, Ms Tchan makes no allowance for duplication of services.

12. In relation to Ms Tchan’s assessment of the cost of providing cooking services for the plaintiff, she expressed the opinion that between October 2001 and 6 November 2001, Mr Bloemen was too weak to help with any meal preparation (page 16 of her report). At page 11 of that report Ms Tchan speaking as of January 2002 said:

Mr Bloemen has not helped with meal preparation for the last two weeks at all.

13. It is understandable that Mr Bloemen in his affidavit found it difficult to assess with any particularity the service which his wife performed for him so I turn to contemporary medical opinion. In his report of 19 December 2001 Dr Marantos recorded that after the initial period following the biopsy in St George Hospital the plaintiff had been gaining weight and had minor discomfort in the region of his wound. Dr Marantos noted that when resting the plaintiff’s oxometry was 93 per cent falling to 90 per cent "on walking 50 metres and mildly breathless on doing so." A capacity to walk 50 metres with the onset of merely mild breathlessness seems to me incompatible with a suggestion that the plaintiff was other than able to prepare his meals. That he was so able is consistent with the history taken by Ms Tchan from the plaintiff but inconsistent with her calculations.

14. Ms Tchan allows sums in relation to services provided by the plaintiff’s wife when travelling to the St George Hospital to visit the plaintiff providing him with moral support, helping with his toilet and walking exercises and providing magazines, reading matter, drinks and snacks. The service provided to the plaintiff in helping with his toilet and walking exercises duplicated the services provided at cost by the nurses. The provision of moral support, if it be a need, is no more than part of the mutual give and take within marriage. Mason CJ, Toohey J and McHugh J said in Fenton v Van Gervan 175 CLR 327 at 340:

It is impossible to quantify with any pretence of precision the net benefit to an injured plaintiff for the company and minor services that he or she would have enjoyed by reason of the personal relationship between the plaintiff and the care provider or to put a value on the company and services which the plaintiff would have provided to the care provider by reason of their personal relationship if the plaintiff had not suffered the injury.

15. Their Honours concluded in that case that it was appropriate to omit from the list of services to be paid for, those services in respect of which the plaintiff was able to offer services in return. It has not been suggested that by virtue of his distress the plaintiff is unable to express to his wife such concern, companionship and comfort, in this time of her distress, as is not reciprocal. To my mind it demeans the quality of their marriage that such a claim should be advanced.

16. I adopt then the opinion of Ms Oates in relation to the provision of services.

Taking 30 March as a convenient date of past services, it now being the 28th, the value of past services pursuant to Ms Oates’ opinion is $14,066.

The value of services consistent with her opinion from 1 April 2002 to 31 August 2002 is $40,403.

17. The plaintiff then is entitled to a verdict made up as follows:

General damages $165,000.

Interest on general damages $1,840.

Loss of expectation of life $10,000.

Past care and services $14,066.

Future care and services $40,403.

I allow $410.25 in respect of interest on the claim for past care and services.

18. Judgment for the plaintiff in the sum of $231,719.25.

19. I record that the reservation of the plaintiff’s rights to seek reconsideration includes past and future hospital and medical expenses.

20. I order the defendant to pay the plaintiff’s costs.

Mr D J Letcher QC instructed by Turner Freeman appeared for the plaintiff.

Mr J L Sharpe instructed by Vandervords appeared for the defendant.