Board v Amaca Pty Ltd

[2002] NSWDDT 30

Dust Diseases Tribunal

of New South Wales

CITATION:	Board v Amaca Pty Ltd [2002] NSWDDT 30
PARTIES:	Graham George Board v Amaca Pty Ltd (formerly known as James Hardie & Coy Pty Ltd) ACN 000 035 512
MATTER NUMBER(S):	173 of 1999
JUDGMENT OF:	Johns J at 1
CATCHWORDS:	Damages - Negligence :- Economic Loss Likelihood of plaintiff working beyond age 65 Adjustment of award of damages to reflect such likelihood
LEGISLATION CITED:
CASES CITED:	Malec v J C Hutton Pty Ltd (1990) 64 ALJR 316
DATES OF HEARING:	28/11/2002, 29/11/2002
DATE OF JUDGMENT:	12/04/2002
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr J Rush QC instructed by Turner Freeman FOR DEFENDANT: Mr J A McIntyre SC instructed by A O Ellison & Co

JUDGMENT:

1. This is an action in damages by Graham George Board against Amaca Pty Ltd formerly known as James Hardie & Coy Pty Ltd. The action arises as a consequence of the plaintiff being exposed to and inhaling asbestos dust and fibre in the course of his employment with the defendant. The defendants in this matter have conceded liability and what remains is an assessment of the damages to which the plaintiff is entitled.

2. The plaintiff's allegation is that he suffers from asbestos related pleural plaques, diffuse pleural thickening and asbestosis. The consequence of this condition is that he suffers from lung restriction and breathlessness. His disease was caused by the inhalation of asbestos dust and fibre utilised by the defendant for the purposes of manufacturing asbestos related products.

3. The plaintiff commenced employment with the defendant at the age of 15 on 17 January 1955. He concluded his first period of employment with the defendant in approximately September 1955. For a little over a year after that he was in other employment and he returned to employment with the defendant on 29 May 1956 and continued until 10 July 1981.

4. He began his employment with the defendant as a "colour boy" and worked in the Tilux department. This involved the plaintiff mixing raw asbestos with white cement and other ingredients to achieve the appropriate colour.

5. Bags of raw asbestos were fibreised or hammer milled, blown into a dust room, drawn out and bagged. This was a very dusty process. Clouds of fine dust were created which were inhaled by the plaintiff. The plaintiff described the work environment in the blow room as "pretty horrific" as far as the creation of dust was concerned. Other aspects of the work were described in this department and in my view one can only conclude that he worked in an asbestos laden environment.

6. The plaintiff continued in this department until approximately 1959 when he obtained the opportunity of working in the laboratory at James Hardie. He worked in this department until he concluded his employment in 1981. During the intervening period he underwent the requisite education, he obviously gained considerable experience in this kind of work and increasingly over the period he gained expertise in this area. Although he worked in the laboratory he was still exposed to the manufacturing environment, in particular when he engaged in the sampling process. Eventually he became a specialist in the testing of pipes and test lines. Moreover, he ultimately became the superintendent of the laboratory; he himself majored in physical testing and he brought the laboratory to National Australian Testing Association standards.

7. In 1981 he and his wife bought a farm at Temora in New South Wales and conducted a mixed farming operation. His wife had a history of residence with her family in the area who had previously engaged in farming for a long period. Unfortunately in 1993 difficult climatic and financial conditions forced the plaintiff to sell the farm. He was nonetheless able to obtain employment as a farm manager with Mr Heinrich, who gave evidence in this case. He was employed with Mr Heinrich until 1998. The plaintiff has not been in employment since that time.

General Damages

8. The plaintiff was born on 12 January 1940 and married his wife on 29 September 1962. There are three children of the marriage, all of whom are now in excess of 30 years of age and are independent. There is a close bond between the plaintiff and his wife and it would seem to me in relation also to his family.

9. The plaintiff indicated that he first noticed some breathlessness of any real kind in 1992 which he says has progressively got worse until he had to cease his employment in 1998.

10. In 1998 the plaintiff experienced significant breathlessness, which he particularly noticed after walking 300 or 400 yards. This breathlessness increased in the intervening period. He has undergone CT scans between 1992 and 2001 and has undergone numbers of respiratory function tests, the significance of which will be referred to in the analysis of the medical evidence.

11. The extent of the present breathlessness experienced by the plaintiff is significant and he experiences disability in his ordinary and every day activities. His ability to engage in the physical aspects of his work and his general activities has progressively diminished and in 1998 this was significantly so.

12. In 1998 the plaintiff concluded his employment because he was unable to continue, more particularly in the manner in which he had been able to undertake his tasks in the past and in which he took some pride. His description of the extent of his present disability to engage in the normal activities of washing his car and working around the garden, illustrates the extent to which his disability has affected him in his every day activities and more particularly in the way it would affect him in his employment. His present ability to care for himself also illustrates the significance of his disability. If he does too much on one day he might be in bed all the next day. The plaintiff in 1999 underwent a number of operations in relation to his bladder and prostate but has made a recovery from these conditions and apart from some subjective symptoms relating to some pain he is not otherwise affected. He was an active man in and around the home who was competent and a hard working manager who, as Mr Heinrich has indicated, had some unique abilities. He engaged in all forms of work which he has demonstrated by his successful employment with Mr Heinrich.

13. His former employer, Mr Heinrich, in his evidence indicated that in the last year of the plaintiff's employment he noticed that he was breathless or seemed to be under some physical stress particularly in working around the sheep yards. In the last six months of his employment it became particularly noticeable. Mr Heinrich indicated in his evidence he was quite worried because the plaintiff on one occasion was doing some renovation work on a house on the property and whilst on the roof of that house the plaintiff became quite breathless and his employer was fearful that he would fall off the roof. The last six months of that employment he said the plaintiff was not physically capable of undertaking the work that he had previously undertaken for four years.

14. Mr Heinrich's further evidence indicated that when the plaintiff began his employment with him he was of the view the plaintiff was in good health, that he was able to undertake all the tasks required of him in terms of the stock work, the caring for sheep — which at that time numbered some 3,000 — the fencing and the heavier work.

15. Prior to the onset of this breathlessness the plaintiff was a fit and enthusiastic man who now demonstrates significant incapacity as a consequence of his breathlessness. He was a highly regarded employee of Mr Heinrich and he obviously enjoyed his work, which was to him a significant part of his life.

16. The plaintiff's wife, in her evidence, indicated that the plaintiff was quite distressed because he did not seem to have the energy and abilities he once had. There was a certain element of frustration displayed by the plaintiff in his inability to care for a large garden which occupied half an acre, and this had been the situation for the last 12 months. He is able, nonetheless, to work in the garden for periods of time. He is able to do the mowing and he endeavours to work in other aspects of the garden. However, he experiences some difficulties during the next day. Although he experiences these difficulties he still manages, his wife indicates, some three hours in and about the garden doing what he can in a manner that he is able, usually a half hour at a time. She has aptly described his frustration in his inability. She has also confirmed the incident that took place on the roof as described by Mr Heinrich. The subjective reaction of the plaintiff to his situation was also commented upon by Dr Burns. It is, however, significant to note that Dr Burns could find no evidence that the plaintiff had a psychiatric problem or that he was anything other than genuine, which is a conclusion I have also drawn (T47).

The Medical Question

17. There is a distinct medical issue in this case which brings into question the reason for the applicant's breathlessness. The extent of the general damages will depend on the resolution of the medical issue. I had the benefit of the oral evidence of Dr Michael Burns, a respected thoracic specialist in this field, who has had the benefit of seeing the plaintiff over a number of years.

18. Dr Burns saw the applicant for the first time on 26 July 1999 with a history of being short of breath, particularly on hills and steps. The plaintiff was never a smoker and his breathlessness is not related to the consequence of any airways disease caused from smoking. Dr Burns was of the opinion that the plaintiff has had asbestos related pleural disease in the form of pleural plaques and mild asbestosis after his saw him on the first occasions. Respirable crackles on examination by Dr Burns and by Dr Gardiner are consistent with asbestos related disease. Dr Burns has had the benefit of radiology from 1992 through to 2001, some of which were high resolution CT scans, which in his view demonstrate and support his conclusions.

19. At the time the plaintiff was first seen by Dr Burns the asbestos related condition had not produced any measurable respiratory function impairment, nor did Dr Burns consider at that time, or indeed at any time since, that the nature of the applicant's medical problem would lead to a reduction in his life expectancy.

20. A number of lung function laboratory tests have been performed upon the plaintiff. Dr Burns in his report of 21 October 2002 has annexed a summary of the respiratory function results. The nature of these results when viewed in their entirety was of significance to Dr Burns. The extent of the abnormality to be found in these lung function tests has significance when comparing them to the function tests taken on 18 February 1993. Certain features of his restrictive lung pattern such as the functional residual capacity being below the limit of normal and radiological and clinical features are consistent with the existence of asbestosis.

21. In particular, results of the lung function tests indicating that a restrictive process was involved were to be observed in the results of total lung capacity and functional residual capacity even though they fell into the rather broad normal range. However, the results in the first lung function tests were greater than normal and when compared with the subsequent tests they disclose quite a decline in measurement as against the first tests taken in 1993. The extent of that decline in measurement is sufficient to cause the plaintiff's breathlessness and is also explained by his exposure to asbestos dust. Because the level of oxygen measured fell on exertion in the presence of a complaint of breathlessness, one is able to say that the breathlessness was genuine because oxygen should not fall unless there is a genuine problem. But it does not, however, distinguish between whether it is a lung problem or a heart problem.

22. Dr Burns' view was that after an initial decline in lung function tests the values had levelled off and he felt that the plaintiff's condition would not get progressively worse over the years but rather would stabilise. There is a risk of the condition worsening, however. Breathlessness in lifting, climbing, walking up hills, and mowing lawns is unlikely to improve. Age related factors will decline his lung capacity — so, relatively, the effect of the asbestos related condition on his breathing will for this reason increase over the years, although clinically and radiologically there may not necessarily be any decline.

23. Dr Burns was of the view that even in light of the single respiratory function test results that were within the normal range, the plaintiff had an asbestos related condition which had not produced any measure of respiratory function impairment. By 2002, however, a number of respiratory function tests, to which I have also already referred, were available and in the analysis of those results, as disclosed in Dr Burns' last report, there was obviously a deterioration in the absolute values which Dr Burns did not have in July 1999.

24. It is also significant, therefore, that the plaintiff does not suffer from any cardiac condition which would otherwise explain his breathlessness. Dr Yiannikas, a consultant cardiologist (exhibit PX5), after reviewing various tests at his disposal, indicated in his clinical evaluation that there was no organic heart disease or any obvious evidence of any heart disease. He considered that there was no cardiac reason for the breathlessness of the plaintiff.

25. Dr Yates, an eminent thoracic specialist (exhibit PX4), indicated that the plaintiff showed evidence of slowly-increasing lung restriction compatible with diffuse pleural thickening. She concluded his breathlessness was of respiratory origin and that the early diffuse pleural thickening was contributing towards his exertional breathlessness. The degree of disablement as a consequence she estimated to be approximately 20 per cent. Dr Burns also confirmed a 20 per cent disability as a consequence of the plaintiff's asbestos related condition and exposure.

26. Dr Cassar undertook cardiovascular assessment, which has been commented upon by Dr Yiannikas whose conclusions I have already referred to.

27. The report of Dr Gardiner was tendered by the defendants. He concluded that the lung function tests were normal in October 2000 compared to a previous study of unknown date. He had the benefit of the CT scans to which I have already referred. He was of the view that the audible crackles or crepitations related to areas of asbestos related pleural disease. There was no evidence, in his view, of asbestosis and in the presence of what he described as normal lung function tests and normal cardiac stress tests, he was not of the opinion that the plaintiff's breathlessness was not caused by any asbestos related condition.

28. I consider, however, that the evidence demonstrates abnormality in the lung function tests as confirmed by Dr Burns and Dr Yates. There is no evidence which would confirm Dr Gardiner's view relating to the question of any compensation neurosis or any psychological cause for the plaintiff's breathlessness.

29. I found the plaintiff a creditable witness whose evidence before me would not cause me to conclude that the nature of his disability is from non-organic causes. On the contrary, it is my view that — in the absence of any smoking-related cause or cardiac cause of the plaintiff's breathlessness and in the presence of consistent radiology and lung function tests and abnormal lung function tests and finding on examination with a history of significant asbestos dust exposure — the breathlessness of the plaintiff and the consequent significant disability is a result of the asbestos related pleural disease as described by Dr Burns which was caused by his exposure to asbestos dust over a number of years due to the breach of duty of the defendant.

30. The Tribunal is entitled to take a robust and pragmatic approach in the presence of conflicting medical expertise. In weighing and determining the probabilities I have expressed my view of the evidence which I prefer and which I think is dictated as a matter of ordinary common sense and experience. I have indicated the process and the steps in the process by which my intuitional common sense leads me to the conclusion I have expressed. I have referred to the parts of the evidence which seem to me in the relevant sense to be applicable in informing my opinion and deriving such assistance that I have from the opinions of the medical experts. I confirm my conclusion. I must also say that there is some risk that the plaintiff may in the future develop mesothelioma.

31. I therefore award $80,000 in general damages.

32. I make no allowance in respect of the loss of expectation of life as the medical evidence is that the life expectancy of the plaintiff is not affected by his present condition.

Economic Loss — Past

33. There is no dispute in relation to the methodology adopted by the plaintiff in respect of the calculation of the sum for past economic loss including allowance for superannuation. The defendant contends that some limitation or discount should be allowed due to the exigencies relating to problems with the plaintiff's neck and back. Whether there would be, as part of the ordinary vicissitudes of life, some degree of loss of income during the four year period which represents the past it was not supported by any medical evidence but is founded upon the frank concessions by the plaintiff.

34. It seems to me that the arrangement that he had with Mr Heinrich was such that the likelihood of the impact of any loss due to neck or back pain was quite small, particularly when taking into account the flexibility there was in the arrangement between them. Nonetheless, he was reaching an age when the prospect of illness is of greater likelihood — as indeed has been demonstrated by what occurred in 1999 for which allowance has been made. I do not consider in the circumstances, however, that any further allowance in respect of the past period should be made. The calculation which makes allowance for 15 per cent for vicissitudes amounts to $97,586 with a superannuation allowance after tax of $6,970. Each of these sums is to be awarded to the plaintiff.

Economic Loss — Future to Age 65

35. The question of future loss of earnings of the plaintiff is to be considered in two separate periods, the first period to age 65 and the second for the five year period beyond 65. The period is to begin from 2 December 2002 to age 65.

36. It is my view that given the plaintiff's increasing age the likelihood is that the plaintiff would not have continued with the same hours as he had prior to the conclusion of his employment. I consider, therefore, from the schedule as prepared by the Furzer Crestani Services, and which is part of exhibit PX7, that the appropriate number of hours ought in the circumstances to be 30 hours at the rate of $15 per hour as supported by the evidence of the plaintiff and Mr Heinrich.

37. I think the lesser number of hours is appropriate in the circumstances given the plaintiff would have returned from serious illness and the greater likelihood or prospect of illness with increasing age. The discount of 15 per cent to take into account the positive and negative vicissitudes is to be applied. The present day value discount of an interest rate of 3 per cent is also to be made. The sum of $32,307 therefore is the proper allowance for future economic loss to age 65. The superannuation in respect of this sum for this period after tax is $2,921. These sums are to be allowed.

Economic Loss — Future from Age 65 to Age 70

38. The plaintiff has contended in this matter that he would have worked until at least the age of 70. One looks with scrutiny at such an assertion. However, having heard the plaintiff's evidence, and in particular the evidence of Mr Heinrich, I consider that the plaintiff was both resolute and competent with a unique ability in managing farms. But for this breathlessness, that he would engage in this type of farm work, albeit for a lesser number of hours, I think is acceptable. His particular expertise, being described by Mr Heinrich in his ability to sell stock and grain, was of particular usefulness and undoubtedly productive of likely income. Given that work was such a significant part of the plaintiff's life, there was sufficient incentive for him to continue working until age 70.

39. The increasing prospect of illness at this stage of the plaintiff's life and also the established back and neck conditions are factors to take into account. I am nonetheless of the opinion that some allowance ought to be made to age 70.

40. The task which is undertaken by the Tribunal when assessing 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: See Malec v J C Hutton Pty Ltd (1990) 64 ALJR 316 at 318. That is not to say that the determination is made in accordance with mathematical precision. What is required is that the damage to be assessed is to be proportionate to the injury or loss. It seems to me that there is a degree of probability that the plaintiff would have worked beyond his 65th year.

41. I am of the view that the plaintiff would probably have been able to engage in the same kind of farm work but probably in a more managerial capacity. I would in those circumstances utilise 30 hours at $15 per hour as the appropriate basis upon which to calculate the sum. I would take 40 per cent off those earnings to reflect the fact that I am assessing the chance that the plaintiff will be unable to work as productively in the future and the chance that that will result in some loss to him. The present value of the resulting loss calculated on the basis of the appropriate discount rate of 3 per cent is to be applied to this sum and there is to be a further deduction for accelerated payment using 0.863 as the multiplier. The resultant sum is $49,274 which is to be awarded to the plaintiff, together with a superannuation allowance for this period in respect of this sum after tax of $4,456.

42. The plaintiff also makes a claim for future services, to include gardening, lawn mowing and general maintenance around the home. The claim was based on 19 years of life expectancy with a 70 per cent deduction for vicissitudes. The plaintiff indicated in submissions that this was merely to be viewed as a guide. The evidence is that the applicant continues to engage in lawn mowing and gardening, albeit it takes longer to do what he would normally do. Dr Burns has indicated that there is a levelling out in relation to the plaintiff's condition and that it is unlikely to deteriorate in the future save for age-related factors. There has been some demonstrated incapacity in respect of some maintenance for which it has been necessary to make an allowance and there is also additionally the risk of further deterioration of the condition itself. Weighing these factors I think realistically the sum of $3,000 ought to be allowed in relation to the risk.

43. I turn to maintenance and repairs. There is an agreed sum of $4,160 to be allowed in respect of repairs required to the plaintiff's residence. There is an amount of $102 also to be allowed in relation to repayments to the Health Commission in accordance with what has become exhibit PX10.

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

General damages $80,000

Past economic loss $97,586

Superannuation allowance thereon $6,970

Future economic loss to age 65 $32,307

Superannuation allowance on that sum of $2,921

Future economic loss to age 70 $49,274

Superannuation allowance thereon $4,456

Future services $3,000

Maintenance and repairs $4,160

Health Insurance Commission $102

Total $280,776

45. In respect of interest on general damages I allow 2 per cent on $30,000 of that sum from 1998, for four years, which amounts to $2,400.

46. The entitlement therefore is $283,176.

47. There will be verdict for the plaintiff in the sum of $283,176.

48. I direct entry of judgment accordingly.

49. I order the defendant to pay the plaintiff's costs.

Mr J Rush QC instructed by Turner Freeman appeared for the plaintiff

Mr J A McIntyre SC instructed by A O Ellison & Co appeared for the defendant