Anthony David Talifero v Amaca Pty Limited

[2017] NSWDDT 14

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:	Anthony David Talifero v Amaca Pty Limited [2017] NSWDDT 14
Hearing dates:	23 November 2017
Date of orders:	11 December 2017
Decision date:	11 December 2017
Before:	Judge D. Russell
Decision:	(1)   Judgment for the plaintiff against the defendant for $560,482. (2)   Order the defendant to pay the plaintiff’s costs. (3) Stand the matter over for mention to Thursday, 14 December 2017 at 9.30am to deal with the question of costs.
Catchwords:	DUST DISEASES – exposure - damages
Legislation Cited:	Dust Diseases Tribunal Act 1989 Dust Diseases Tribunal Regulation 2013 Civil Liability Act 2002
Category:	Principal judgment
Parties:	Anthony David Talifero (plaintiff) Amaca Pty Limited (defendant)
Representation:	Counsel: J. Rush QC (plaintiff) G. Watson SC (defendant)   Solicitors: Segelov Taylor Lawyers (plaintiff) Mills Oakley (defendant)
File Number(s):	DDT 116/2017

Judgment

1. By a Statement of Claim filed on 18 April 2017 the late Mr Francis John Talifero sued Amaca Pty Limited for damages for his disease of mesothelioma. Mr Talifero worked from 1971 to about 1996 as a self-employed house painter. During that time he handled, cut, drilled, rasped, sanded and cleaned up asbestos cement building products during the course of his house painting duties.

2. On 6 September 2017 the matter was set down for Hearing commencing on 16 October 2017. It was intended that the plaintiff’s evidence would be taken at his residence at Maroubra on the first day of the three day Hearing.

3. Mr Talifero’s health deteriorated and he was admitted to the Sacred Heart Hospice at St Vincent’s Hospital, Darlinghurst. The matter was listed for Directions on 18 September 2017 for the purpose of arranging an earlier bedside Hearing to take the plaintiff’s evidence at the hospice. On that date it was indicated by counsel for the plaintiff that the plaintiff was too ill to give evidence, even at a bedside Hearing.

4. On 5 October 2017 the matter was listed for Directions to arrange a bedside Hearing. This was set down for 10 October 2017.

5. On 9 October 2017 the proposed bedside Hearing was vacated, as there was evidence that Mr Talifero was far too ill to give evidence.

6. Mr Talifero passed away at the hospice early on the morning of 16 October 2017, which was the first date of his Hearing. The Hearing dates were vacated. On 7 November 2017 orders were made substituting Mr Talifero’s son Mr Anthony David Talifero as the plaintiff, so that the proceedings could continue as an estate claim. The matter was then set down for Hearing on 23 and 24 November 2017.

7. The Hearing concluded on 23 November 2017 and judgment was reserved. As the claimant was deceased, and as there were other urgent mesothelioma cases pending, delivery of this judgment has been delayed, at least in terms of Dust Diseases Tribunal judgments.

8. Senior counsel for the defendant indicated that diagnosis and foreseeability were admitted. He informed the Tribunal that subject to proof of exposure, duty and breach of duty of care were admitted. That left as the only issues for determination:

1. Exposure to James Hardie asbestos cement products;

2. Damages.

EXPOSURE EVIDENCE

9. Mr Talifero was born in the United Kingdom on 15 May 1931. He died at age 86 on 16 October 2017. He had some asbestos exposure during employment in the United Kingdom, but that is irrelevant since the disease is the indivisible condition of mesothelioma.

10. Mr Talifero came to Australia in 1971 and worked for 25 years as a house painter. During that time he had to replace broken asbestos cement sheets from time to time, in order to complete house painting jobs. He always bought new fibro sheets from Kingsford Timber where he had an account. About 20% of his painting jobs required him to install new fibro. To do this he needed to cut, rasp and sand new fibro sheets.

11. Mr Talifero never swore an affidavit as he became too ill to do so. However, his Form 1 Statement Of Particulars was tendered, without objection, pursuant to the Dust Diseases Tribunal Regulation 2013.

12. Mr Talifero said that he recalled Hardie’s stamps on the asbestos cement fibro sheets.

13. Mr Talifero’s son Mr Stephen John Talifero, born 20 May 1958, also gave evidence about asbestos exposure. From the age of 16 Mr Stephen Talifero worked for his father during school holidays as he was saving money to buy a car. After finishing the Higher School Certificate in 1976 he worked for his father for about six weeks. In 1980 before embarking on overseas travel he worked for about two months for his father. After he returned he worked for his father again for about six weeks.

14. Mr Stephen Talifero said that his father had him sanding and painting windows, fences and garages where no great skill level was required. He said that every house they worked on had some fibro.

15. He recalled his father buying hardware supplies, including fibro sheets, from Kingsford Timber which was located across the road from South Sydney Juniors Club on Anzac Parade. He went to the store with his father on many occasions. He recalled that the sheets had the trade name “Hardiflex” stamped on the back. Kingsford Timber was the only hardware store he ever went to with his father.

16. A third witness was called on the issue of exposure. Mr John Bissell gave oral evidence and was cross-examined. In 1949 he commenced an apprenticeship as a carpenter with his uncle who was a builder. He worked building homes with his uncle for 27 years. That business folded in about 1975. Mr Bissell went out on his own and used to buy his materials at Kingsford Timber. In 1977 they offered him a job as a yard man and he took it.

17. He worked unloading trucks and unpacking and stacking materials in the set spots in the yard and serving customers. He recalled fibro cement product called Hardiflex being delivered which came on James Hardie trucks. There were no other suppliers of that material in 1977. Hardie’s trucks turned up about once a fortnight after he started work. Mr Bissell retired from Kingsford Timber two years ago.

18. Mr Bissell was cross-examined. He remembered the name Wunderlich in relation to roof tiles. He knew that Wunderlich produced flat fibro sheets, but he said that Kingsford Timber only ever bought James Hardie sheets.

FINDING ON ISSUE OF EXPOSURE

19. The evidence is all one way. The evidence of the late Mr Talifero, his son Stephen and Mr Bissell clearly establishes that the only new asbestos cement building product to which Mr Talifero was exposed was James Hardie flat fibro sheets.

20. In closing submissions, senior counsel for the defendant very properly indicated that he had “nothing to say” about the identification of James Hardie products.

21. Professor Henderson, an eminent pathologist, provided a report dated 4 October 2017 which offered the opinion that the exposure to James Hardie products alone in Australia was sufficient to cause Mr Talifero’s mesothelioma. Once again very properly, senior counsel for the defendant said that he had no submission to answer the report of Professor Henderson.

22. The plaintiff is entitled to judgment against the defendant. I now turn to consider the quantum of damages.

EVIDENCE ON GENERAL DAMAGES

23. In his Form 1 Mr Talifero said that until he retired in 1996 he was very healthy. He had an active retirement. He and his wife travelled overseas twice a year. One of these trips was to the United Kingdom every year. The family was able to travel cheaply as his son Stephen worked for Qantas and they were entitled to reduced fares.

24. Mr Talifero walked his dog every day on the cliff tops at Maroubra. He used to buy bric-a-brac at auctions and garage sales and re-sell it at markets. This was more a social outlet and a hobby rather than a money-making concern.

25. In July 2014 Mr Talifero and his wife were travelling in Hawaii. He had difficulty breathing and spent most of the holiday in bed. When he returned to Australia he saw his GP. He was sent for an x-ray on 7 August 2014 and then went to a specialist Dr Jarvie on 11 August 2014. He went for a CT scan which showed fluid on the right lung. He went to Prince of Wales Hospital but an ultrasound showed there was not enough fluid to drain.

26. Another x-ray and CT scan in October 2014 showed that he still had fluid on the right lung. He was short of breath on exertion, very tired and did not feel well. Dr Jarvie sent Mr Talifero to a surgeon Dr Wolfenden. By the time he saw this specialist on 18 November 2014 he had pain in the right chest as well as being short of breath and fatigued.

27. Mr Talifero was admitted to Prince of Wales Hospital on 8 December 2014. Dr Wolfenden could not perform his planned operation of a talc pleurodesis as he could not obtain access to the pleural space. He did a biopsy. Dr Jarvie informed Mr Talifero that the biopsy did not obtain a good sample, but that it was suspected that he had mesothelioma. He was sent to a radiation oncologist Dr Wong.

28. Mr Talifero saw Dr Wong on 5 January 2015 and was sent to an oncologist Dr Chin, who recommended chemotherapy. Mr Talifero had his first chemotherapy treatment on 13 February 2015. He had nausea and tiredness. He described his second treatment as “terrible” as he suffered from extreme side-effects including fatigue. A scan showed that the tumour and the fluid had decreased so he had four further treatments, the last being in July 2015.

29. As well as suffering from extreme fatigue as a side effect of the chemotherapy, Mr Talifero developed thrush in the mouth and could not swallow. He developed anaemia and required a blood transfusion after his third chemotherapy treatment. He had no appetite and lost a lot of weight. He had diarrhoea and developed numbness in the fingertips and toes. He experienced blurred vision.

30. His symptoms improved somewhat by August 2015, but he was getting more and more shortness of breath on exertion. He had an episode of chest pain and was admitted to Prince of Wales Hospital from 24 to 27 August 2015.

31. Mr Talifero continued to suffer severe fatigue and a lack of energy. He slept all night but he needed several naps during the day. He continually felt drowsy. His mood was very low after the chemotherapy and he often felt teary. He was taking anti-depressants, Endep and Venlafaxine.

32. In late 2016 he developed a constant nagging pain in the right ribs which required pain killers. His breathlessness increased and he could not sleep on his side. He went back to Dr Chin on 3 February 2017 and had a further scan which showed that the tumour had grown and was pushing on his ninth right rib.

33. There was a biopsy done on 20 February 2017 from which a definite diagnosis of mesothelioma was obtained. He went back to see Dr Wong for radiotherapy, which he had between 13 March and 24 March 2017. Side effects from the radiotherapy included a skin reaction and redness on the lower right chest. He was even more tired after this treatment.

34. By the time Mr Talifero declared his Form 1 to be true, on 19 May 2017, his condition was such that he was very tired and needed to sleep during the day. He was short of breath and could only walk about 50 metres very slowly before he had to stop. He could not climb stairs. He had been using oxygen for the last 18 months for a few hours each night. He became breathless on exertion, even while talking. He had a constant cough. He was weak and had a few falls. He used a walking stick or a walker outside the house. His appetite was poor and he lost about 14 or 15 kilograms.

35. Mr Talifero concluded his Form 1 by saying:

“I used to be the life and soul of the party. I now do not want to leave the house. I must be forced to go out to see my children and grandchildren. My son arranged to take my wife and I to Bangkok last year. I did not want to go. I used to love travelling. My whole life has been destroyed by this illness.”

36. Evidence was given by Mr Talifero’s wife Marion Talifero. She was born on 20 December 1933. The couple were married on 26 March 1955. They had three children – Stephen born 1958, Anthony born 1961 and Deborah born 1963.

37. In her affidavit Mrs Talifero confirmed the medical history given by her husband in his Form 1. She was the person who had provided most of the care to Mr Talifero.

38. In relation to the period between February and July 2015 when Mr Talifero was having chemotherapy, she said:

“To my observation he was so sick during this time we could not leave him. He was very frail and unsteady on his feet and needed help to get out of bed, off the toilet and in and out of chairs. I helped him to shower and dress. If he needed to go to the toilet in the night, which he often did because of his diarrhoea, I helped him out of bed and on and off the toilet. He was always shaking and he told me his fingers were numb. John was very nauseous and frequently vomited. Between the diarrhoea and vomiting there were a lot of accidents both day and night that required me to change the bed and clean the bathroom as well as help John clean himself and change. He needed me or one of our children to be there day and night. I administered his medication and went with him to all tests, appointments and treatment.”

39. Mrs Talifero gave evidence in her affidavit that to her observation her husband never fully recovered from the chemotherapy, both physically and mentally. He continued to be very tired up until he was admitted to the hospice. From the time of his chemotherapy he had no energy and could not do anything requiring exertion because of his breathing. Even using the walker and going from the lounge room to the kitchen, less than five metres, he became short of breath and had to sit on the walker and rest. He struggled to get up the two steps at the back of the house. He became breathless getting up from the bed or from the toilet or a chair and needed someone to hold onto. He even became short of breath when sitting and talking and had to stop talking and rest. He used oxygen at night.

40. Since mid-2014 Mr Talifero coughed all the time, day and night. He regularly complained to his wife of constant pain in the right side of his chest. Mrs Talifero observed him wincing with pain when he twisted or bent. He could not lie on his right side because of the pain, which woke him up at night. Mrs Talifero often had to get up with him during the night to give him medication or fetch him some water or just to check that he was okay.

41. Since late 2014 the couple had to sleep in separate bedrooms as Mr Talifero was constantly twitching. This change upset both partners greatly. Mrs Talifero thought that anti-depressants did not help her husband much. She said that since he got sick he had no joy in his life. He did not want to leave the house and he had to be forced to go and see his grandchildren.

42. When the chemotherapy finished in July 2015, for the next year Mr Talifero tried to shower and dress himself although it took a long time as he had to sit and rest every few minutes to get his breath back. He could get himself some breakfast and lunch but he could not make a hot meal. He made the bed and put on small loads of washing. He tried to mow the lawn in stages. He could not do heavier jobs such as cleaning the floors or bathrooms, which required frequent cleaning because of the attacks of diarrhoea.

43. Mrs Talifero said that from mid-2016 onwards Mr Talifero deteriorated. He could no longer do things around the house such as laundry, washing dishes or helping with the shopping. He developed night sweats and she had to change the sheets and bed clothes every second day. She estimated that from mid-2016 she and her children spent at least three hours a day doing things for Mr Talifero including preparing meals and snacks, cleaning, laundry, shopping, gardening, lawn mowing, handyman tasks, spring cleaning and car washing.

44. Mr Talifero did not drive since mid-2016. Mrs Talifero estimated that since that time she had spent at least 2.5 hours per week taking Mr Talifero to doctors’ appointments, tests, treatments and outings.

45. From the beginning of 2017 Mr Talifero needed help with showering and dressing. Mrs Talifero monitored him while he was showering and dressing to see if he was okay or if he needed help. She brought him drinks and snacks during the day and fetched anything he needed so he did not have to get up.

46. After January 2017 Mr Talifero had several falls. Mrs Talifero felt she was not able to leave him at home alone and after that time either she or one of the children were with him. If he fell he could not get up and Mrs Talifero could not get him up on her own. On one occasion Mr Talifero fell in the bathroom and Mrs Talifero had to call the neighbour to help get him up. Mrs Talifero felt that she could not rest when he was asleep, as if he got up he was unsteady on his feet and he was gasping for breath and frightened.

47. Mr Talifero was first admitted to the hospice from 9 to 21 August 2017. Mrs Talifero visited him every day and spent most of the day with him to keep his spirits up. When he got home from the hospice after that first time, he was much worse. His breathing was very bad and he could hardly get out of bed. The doctor sent him back to the hospice on 8 September 2017.

48. While Mr Talifero was in hospital and in the hospice his wife visited him every day. She took him fresh clothes every day and took his clothes home to wash. She made sure she was at the hospital when the doctor came around, as Mr Talifero could not remember what the doctor had said to him. She brought him food to try to get him to eat. She helped him go to the toilet. She estimated that she spent at least eight hours a day travelling, washing, cooking and caring for her husband at the hospital.

49. Mrs Talifero concluded her affidavit by saying:

“Both John and I have struggled to accept his illness. When he got sick our lives as we knew them finished. We do not go out or do anything anymore. All John does is sleep. John has no quality of life. He does not enjoy anything. He used to love life. We had a wonderful life together. He used to be the life and soul of the party.”

50. In her oral evidence Mrs Talifero was able to elaborate upon certain matters covered by her affidavit. She said that Mr Talifero never really recovered after the chemotherapy. He used to get very down and depressed. He would cry and say “I’m sorry, I’m sorry, I can’t help it”. Mrs Talifero described her husband as a very proud man. He used to get embarrassed using the walker outside the home. He thought that everyone was looking at him. Mr Talifero became breathless in the shower as the steam seemed to affect him. She helped him get into the shower to sit on a chair and be showered. She would then help dry him. Mrs Talifero helped him into the toilet and then moved away. When he was finished he would call his wife back and she had to help him off the toilet.

51. Mrs Talifero gave a very poignant piece of evidence concerning her husband in the hospice as follows:

“Funny thing, he wasn’t a man who held hands, he was a very manly sort of man but as soon as I got there or any of us got there he wanted to hold our hand for security. If I sat by his bed and I gave him a drink he’d search out for my hand and just hold it and I’d sit there for an hour or more and he’d be watching the TV which was up in the air there, we’d be holding holds and if I went to move away he’d grab it again.”

52. Mrs Talifero kept a diary from April to August 2017. She set out some of the things that she and her husband did together and some of her observations about his pains, problems and difficulties.

53. Several family photographs were tendered which showed Mr Talifero when he was hale and hearty and obviously enjoying life on holidays or at family gatherings.

54. Mrs Talifero was cross-examined by senior counsel for the defendant as to Mr Talifero’s other health problems. Mrs Talifero acknowledged that her husband had treatment by a cardiologist in the past, but said that apart from being monitored every six months his heart problem was not an issue after treatment many years ago. Mrs Talifero denied that her husband had been diagnosed with emphysema and said that he had not had problems breathing. She pointed out that he used to walk a lot and pick up boxes of goods and go to the markets where he was on his feet. She described him as being “extremely active”.

52. Finally, there was some evidence called from Mr Talifero’s son Stephen in relation to damages. He was with his mother and father on the last trip to Bangkok. His father had just finished the chemotherapy and the radiotherapy and the doctors had given him a clearance to go overseas. He said that his father got up in the morning, went for breakfast and then stayed in bed all day. The rest of the family took Mrs Talifero out in Bangkok.

53. Mr Stephen Talifero gave evidence that his father after the chemotherapy was “like a walking zombie”. He said it was “like a cloud would come over him and he was just not there, didn’t want to communicate”. His father was lethargic and wanted to sleep all the time.

54. He saw his father in tears several times. His father said: “I just want to die”, “I’ve had enough”, and “I’m sick of being sick, I’ve had enough, I just want to die”.

55. Mr Stephen Talifero said his father had always been one to look on the bright side of life, and “this was not the dad I knew”.

ASSESSMENT OF GENERAL DAMAGES

59. Senior counsel for the plaintiff submitted that general damages should be assessed at $380,000. Senior counsel for the defendant submitted that the appropriate figure was $275,000.

60. Mr Talifero suffered for a longer time than many plaintiffs who have mesothelioma. His first symptoms came on in July 2014. He died in October 2017. He was told in quite early days that it was likely he had mesothelioma. He had chemotherapy treatments between February and July 2015, and from that time onwards he lived what can only be described as a quite wretched life, because of the severe side-effects. Chemotherapy and its side-effects changed him from being a happy healthy man to being a person with severe physical ailments, and a person who was despondent, labile and who basically wanted to die.

61. The evidence of Mrs Talifero about her husband’s suffering was direct but not at all overstated. Mr Talifero was changed by this disease from being a man who enjoyed life, particularly the companionship of a long marriage and a close family, to a person who had a miserable confined existence. He went from being a proud and strong man to being, as he put it to his wife, “as weak as a kitten”. The long term problems he had with diarrhoea must have been not only physically debilitating but emotionally very wearing.

62. Taking into account all of the evidence recited above, and the matters summarised, I find that the appropriate figure for general damages is $360,000.

63. To this will be added interest calculated as follows: $360,000 x 2% x 3.3 years = $23,760.

LOSS OF LIFE EXPECTANCY

64. Professor Breslin saw Mr Talifero for a consultation on 28 June 2017. He noted health problems besides mesothelioma which included a heart attack in 2000 which had required four coronary artery stents, and diabetes first diagnosed in 2000. On the question of life expectancy Professor Breslin said:

“Were it not for the mesothelioma, it is likely that he would have lived another 3-4 years and accordingly his life has been cut short by the mesothelioma.”

65. The defendant tendered a report from Dr Obeid who is a consultant physician and geriatrician. He did not see Mr Talifero but dealt with the questions asked of him by reference to the documents provided.

66. Dr Obeid listed Mr Talifero’s conditions which contributed to a reduced life expectancy as: cardiovascular disease; Type 2 diabetes mellitus; emphysema/chronic obstructive pulmonary disease; and a past history of cigarette smoking until the year 2001.

67. Dr Obeid referred to various published studies concerning the effect on life expectancy of those conditions. He came to the conclusion expressed as follows:

“Given the above medical co-morbidities (and assuming that they were being optimally managed) the plaintiff’s life expectancy would have been reduced by approximately 70% had it not been for the diagnosis of mesothelioma. This would equate to a life expectancy of 1.8 years at his current age (i.e. to approximately 88.5 years).”

68. When seen by Dr Obeid in October 2017, Mr Talifero was almost 86.5 years. The average male of that age has a medium life expectancy of 5.9 years.

69. The plaintiff tendered evidence from Mr Talifero’s cardiologist. He did not indicate that there was a reduced life expectancy because of the past cardiac history. Mrs Talifero gave evidence, which I accept, that since the operations on the heart some years ago, all that her husband required was six monthly monitoring by the specialist. Further, Mrs Talifero gave evidence which I accept, that her husband had been a very active man, not only walking the dog, but carting boxes and setting up his bric-a-brac stall at the markets.

70. I appreciate that Dr Obeid was doing his best to provide his opinion on the average outcome across a population, based upon the published studies. However, one has to take account of the lifestyle of the patient himself. Mr Talifero was a healthy man prior to succumbing to the symptoms of mesothelioma in 2014. He was able to lead a life which, for his age, was one which was very active and full. Whatever co-morbidities he had did not greatly affect him.

71. Taking those matters into account, I select the lower of Professor Breslin’s figures and find that there has been a reduction in life expectancy because of the mesothelioma of three years.

72. I will award the conventional sum of $3,000.

OUT-OF-POCKET EXPENSES

73. It was agreed between the parties that there was an amount of $750 for out-of-pocket expenses. There will be an award for this amount.

GRATUITOUS ATTENDANT CARE SERVICES

74. Section 15A of the Civil Liability Act 2002 applies to the determination of civil liability for damages for gratuitous attendant care services in proceedings brought under s 11 of the Dust Diseases Tribunal Act 1989.

75. By s 15A(4) the phrase “attendant care services” as defined in s 15(1) applies under s 15A. So does the phrase “gratuitous attendant care services”.

76. Section 15(1) provides:

“In this section:

‘Attendant Care Services’ means any of the following:

(a)   services of a domestic nature,

(b)   services related to nursing,

(c)   services that aim to alleviate the consequences of an injury.

‘Gratuitous Attendance Care Services’ means attendant care services:

 (a)   that have been or are to be provided by another person to a claimant, and

 (b)   for which the claimant has not paid or is not liable to pay.”

77. Section 15A(2) provides that the hourly rate prescribed by s 15(5) applies to the calculation of damages, although the restriction in s 15 as to a maximum number of hours does not apply – s 15A(2).

78. Senior counsel for the plaintiff handed up a schedule of damages sought under s 15A. The plaintiff claimed damages for the following periods:

1. 13 February 2015 to 18 July 2015 (during chemotherapy treatment) – 168 hours per week;

2. 19 July 2015 to 30 June 2016 – 2 hours per day;

3. 1 July 2016 to 31 December 2016 – 3 hours per day;

4. 1 January 2017 to 8 August 2017 – 168 hours per week;

5. 9 August 2017 to 21 August 2017 (inpatient at Sacred Heart Hospice) – 8 hours per day;

6. 22 August 2017 to 7 September 2017 – 168 hours per week;

7. 8 September 2017 to 15 October 2017 (inpatient at Sacred Heart Hospice) – 8 hours per day.

79. The value of the claim made by the plaintiff for this head of damages was $336,270.17.

80. Senior counsel for the defendant acknowledged that the evidence in two occupational therapy reports, and the report by Dr Obeid, were not all that helpful in a case such as the present, where there was detailed evidence from Mrs Talifero who provided most of the care for her late husband. He went on in oral submissions to analyse the evidence of Mrs Talifero. Senior counsel pointed out that the test for damages under this head is that the plaintiff must establish what was necessary to be done and how long it would reasonably take to do that.

81. It was submitted by senior counsel that while Mrs Talifero had done a lot of things for her husband, a lot of her time was spent “in excess of needs”. He also pointed out that there was no need created by the tort to have somebody come and live in the house with Mr Talifero, because Mrs Talifero already lived there. It would be different if the patient had to move away from his home and live somewhere else so that care could be provided. What happened in this case was that in the normal course of married life, Mr and Mrs Talifero lived together, so Mrs Talifero was effectively “on site” and able to provide assistance to her husband whenever he required it.

82. Senior counsel for the defendant also submitted that when Mr Talifero was in the hospice there was no need whatsoever for gratuitous care. I do not accept this submission. There was evidence from Mrs Talifero, which I accept, that in the hospice she took Mr Talifero fresh clothes every day and took his clothes from the day before home to wash. This afforded Mr Talifero the dignity of being dressed in normal clothes in the hospice rather than in a hospital gown. I find that that small comfort was both necessary and reasonable. In the hospice Mrs Talifero also assisted her husband to eat. That too was reasonable and necessary, given his debilitated state. Thirdly, Mr Talifero from time to time called for help with urination, and staff did not come straight away. Mrs Talifero assisted him to urinate into a bottle. Again, this afforded him dignity as well as comfort, and such assistance was in my view both necessary and reasonable. However, I do not accept the submission for the plaintiff that this assistance was eight hours a day. Most of Mr Talifero’s needs were being met by hospice staff, and no doubt Mrs Talifero and other family members were there for extended periods, so that they could have the opportunity to be with Mr Talifero in his last days. The best estimate I can make of the gratuitous attendant care services provided by Mrs Talifero in the hospital is two hours per day. That will be the award for the two periods in the hospice.

83. As to the periods when Mr Talifero was at home, and Mrs Talifero said that she and her children provided two hours of care per day (19 July 2015 to 30 June 2016) and three hours of care per day (1 July 2016 to 31 December 2016), senior counsel for the defendant submitted that such assistance was “in excess of needs”. Evidence was given that the assistance involved preparing meals and snacks, cleaning, laundry, shopping, gardening, car washing, spring cleaning and handyman tasks. In other words, they were not just attending to Mr Talifero, but were providing assistance in the nature of housework and home maintenance that he had a need for, because of his illness which prevented him from doing those things. I find that the estimates of two hours and three hours for those periods represents the care which was both necessary and reasonable.

84. That leaves consideration of the three periods for which care was claimed for 168 hours per week. I will deal with each period separately. The first period for which full time care is claimed is between 13 February 2015 and 18 July 2015. These were the months when Mr Talifero was having chemotherapy. As graphically described in the evidence of Mrs Talifero which has been summarised above, Mr Talifero suffered constant and serious side effects. Just his vomiting and diarrhoea alone meant that many hours a day had to be spent assisting him, as well as cleaning up after his accidents. For that period I find that twelve hours per day was necessary and reasonable to assist him.

85. The second full time care period sought by the plaintiff is between 1 January 2017 and 8 August 2017. During this time Mr Talifero was becoming weaker and more depressed. He was very short of breath and needed assistance with basic tasks such as showering and toileting. However, such care did not rise to 24 hour per day care. For this period I proposed to make an allowance of eight hours per day.

86. The third period for which full time care is sought is between 22 August 2017 and 7 September 2017. This is only 2.43 weeks, and it is the period in between the two admissions to the Sacred Heart Hospice. At the Sacred Heart Hospice Mr Talifero was having palliative care in his last days of life. Such care would have been for 24 hours per day. I think it entirely reasonable that the care given to him in between these two admissions at home was also full time care. I propose to allow 168 hours per week for that short period.

87. My award for gratuitous attendant care services is set out in the following table:

PERIOD	CALCULATION	AMOUNT $
13/2/15 – 18/7/15	84 hours x $29.31 x 22.29 weeks	55,066
19/7/15 – 30/6/16	14 hours x $29.98 x 49.57 weeks	20,805
1/7/16 – 31/12/16	21 hours x $29.77 x 26.29 weeks	16,435
1/1/17 – 8/8/17	56 hours x $30.15 x 31.43 weeks	53,066
9/8/17 – 21/8/17	14 hours x 30.15 x 1.86 weeks	785
22/8/17 – 7/9/17	168 hours x $30.15 x 2.43 weeks	12,308
8/9/17 – 15/10/17	14 hours x $30.15 x 5.43 weeks	2,292
TOTAL	$160,757

88. The plaintiff is entitled to interest upon gratuitous attendant care services. I will apply the court rate to half of the amount awarded for gratuitous attendant care services ($80,378.50) to reflect the fact that these damages have accumulated gradually over the period since February 2015.

89. That is the same as halving the court rate on the whole amount.

90. The interest upon past gratuitous attendant care services will be $12,215. The calculation is set out in the following table.

Start Date	End Date	Days	Rate	Amount Per Day	Total
13/Mar/2015	30/Jun/2015	110	6.5%	$14.3140	$1574.54
01/Jul/2015	31/Dec/2015	184	6%	$13.2129	$2431.17
01/Jan/2016	30/Jun/2016	182	6%	$13.1768	$2398.18
01/Jul/2016	31/Dec/2016	184	5.75%	$12.6278	$2323.51
01/Jan/2017	30/Jun/2017	181	5.5%	$12.1118	$2192.24
01/Jul/2017	15/Oct/2017	107	5.5%	$12.1118	$1295.97
Total	948	$12215.61

CONCLUSION

91. The following table summarises the heads of damage:

HEAD OF DAMAGES	AMOUNT
General damages	$360,000
Interest on general damages	$23,760
Loss of expectation of life	$3,000
Out-of-pocket expenses	$750
Gratuitous attendant care services	$160,757
Interest on gratuitous attendant care services	$12,215
TOTAL	$560,482

92. My orders are:

1. Judgment for the plaintiff against the defendant for $560,482.

2. Order the defendant to pay the plaintiff’s costs.

3. Stand the matter over for mention to Thursday, 14 December 2017 at 9.30am to deal with the question of costs.

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Decision last updated: 11 December 2017