Boland v Amaca Pty Ltd - [2020] NSWDDT 4

Dust Diseases Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Boland v Amaca Pty Ltd [2020] NSWDDT 4
Hearing dates: 6 and 7 April 2020
Date of orders: 04 May 2020
Decision date: 04 May 2020
Before: Scotting J
Decision:
(1)   Verdict and judgment for the plaintiff in the sum of $1,469,218.00.
(2)   The defendant is to pay the plaintiff’s costs of the proceedings on the ordinary basis.
(3)   I direct that the defendant and the cross-defendants bring in short minutes of order within 7 days to give effect their agreement on apportionment.
(4)   I grant liberty to the parties to approach my Associate to list the matter if a different costs order is sought.

Catchwords: DUST DISEASES – damages – assessment of damages on common law principles - asbestosis and asbestos-related pleural disease (ARPD) – general damages – interest on general damages – damages for gratuitous services – future out-of-pocket expenses
Legislation Cited: Civil Liability Act 2003 (Qld)
Cases Cited: Amaca Pty Ltd v Raines [2018] NSWCA 216
Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649
Expokin Pty Ltd trading as Festival IGA Supermarket v Graham [2000] NSWCA 267
Griffiths v Kerkemeyer (1977) 139 CLR 161
Grincelis v House (2000) 201 CLR 321
Harriton v Stephens (2004) 59 NSW LR 694
Livingstone v Rawyards Coal Co (1880) 5 App Cas 25
Malec v JC Hutton Pty Limited (1990) 169 CLR 638
Marsland v Andjelic [No 2] (1993) 32 NSWLR 649
Marsland v Andjelic (1993) 31 NSWLR 162
MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
Purkess v Crittenden (1965) 114 CLR 164
Roads and Traffic Authority v Cremona [2001] NSWCA 338
Seltsam Pty Ltd v Ghaleb (2005) NSWCA 208
Sharman v Evans (1977) 138 CLR 563
Skelton v Collins (1966) 115 CLR 94
Teubner v Humble (1963) 108 CLR 491
Van Gervan v Fenton (1992) 175 CLR 327
Watts v Rake (1960) 108 CLR 158
Wickham v Treloar (1960) 77 WN (NSW) 350
Todorovic v Waller (1981) 150 CLR 402
Category: Principal judgment
Parties: Peter Boland (Plaintiff)
Amaca Pty Ltd (Defendant/Cross Claimant)
State of Queensland (First Cross Defendant)
State of Victoria (Second Cross Defendant)
J Scott Investments Pty Ltd (formerly J Scott Builders Pty Ltd) (Third Cross Defendant)
Queensland Concrete & General Construction Co (Fourth Cross Defendant)
T F Woollam & Son Pty Ltd (Fifth Cross Defendant)
Representation:
Counsel:   S Tzouganatos (Plaintiff)
      J Sheller SC (Defendant/Cross Claimant)
Solicitors:   vbr Compensation Lawyers (Plaintiff)
      Holman Webb Lawyers (Defendant/Cross Claimant)
      Thompson Cooper Lawyers (First Cross Defendant)
      Lander & Rogers (Second Cross Defendant)
      DWF (Australia) (Third, Fourth and Fifth Cross Defendants)

File Number(s): 126 of 2019
Publication restriction: None

Judgment

Introduction

This matter proceeded as an assessment of damages.
It was common ground that the plaintiff suffers from asbestos related pleural disease (ARPD) and asbestosis and that the plaintiff will die within the next 12 months from those conditions or complications related to those conditions.
The plaintiff’s exposure to asbestos contained in the products of James Hardie & Coy Pty Ltd (James Hardie) [1] , occurred in Queensland and the relevant substantive law to be applied is the law of Queensland. Section 5 Civil Liability Act 2003 (Qld) (CLA) provides that the modified assessment of damages provided for by the CLA does not apply to a claim for a dust-related condition, which is defined in s 8 to include ARPD and asbestosis. Accordingly, the Tribunal must apply common law principles to the assessment of damages.
1. For which the defendant is liable.
The issues in the case are:

What is the appropriate award for general damages?

When should interest run from on the award for general damages?

What is the appropriate award for gratuitous services provided to the plaintiff by his wife?

What is the appropriate award for future out-of-pocket expenses?

The plaintiff’s case

The evidence of the plaintiff

The plaintiff adopted the content of a draft affidavit dated 6 April 2020 when he was called to give evidence. [2]
2. The affidavit of the plaintiff could not be sworn because he was in isolation in Yeppoon, Queensland at the time of the hearing as a result of his immuno-compromised condition, in the course of the COVID-19 pandemic. The entirety of the hearing was conducted by audio-visual link (AVL).
The plaintiff’s evidence can be summarised as follows.
The plaintiff was born on 22 August 1935 and is presently 84 years of age. He married Claire on 26 February 1966 and they have four children (one of whom is deceased) and six grandchildren.
The plaintiff worked from 1952 in various positions in the construction industry during the course of which he was exposed to asbestos contained in building products manufactured by James Hardie. The defendant and the cross-defendants have agreed on apportionment and accordingly it is unnecessary for me to set out the plaintiff’s work history and exposure to asbestos in detail.
In about 1999 the plaintiff first noticed that he became a bit short of breath when walking up hills or inclines. He also had an occasional cough.
In about February 1999, the cough worsened and he saw his general practitioner and was referred for chest x-ray at the Rockhampton Hospital on 2 March 1999. The plaintiff was told that the chest x-ray showed some scarring and an area where the lung had folded in on itself.
On 5 March 1999 the plaintiff had a CT scan of his chest. The plaintiff was told that he had a pleural effusion and a collapsed lung at the base of his right lung and he was referred to a thoracic surgeon.
On 17 March 1999 the plaintiff underwent video-assisted thorascopic surgery (VATS) performed by Dr Morgan Windsor at the Prince Charles Hospital in Brisbane (PCH). The fluid was drained, a talc pleurodesis was performed and biopsies were taken. On review by Dr Morgan, the plaintiff was told that there was no evidence of malignancy and that he should have regular check-ups.
The plaintiff continued to experience shortness of breath when he pushed himself or hurried up hills or inclines. He adjusted his activities by taking things more slowly and taking breaks. His cough improved. He continued to be able to do what he wanted to do, subject to those limitations.
In or about 2000 the plaintiff retired from work. He gave evidence that he was experiencing breathlessness when walking up hills or inclines or if he pushed himself too hard.
The plaintiff then came under the care of Dr Samuel Kim, Thoracic Physician based at the Rockhampton Base Hospital (RBH). On or about 7 June 2005 after a review CT scan the plaintiff was told that he had pleural thickening and pleural calcification.
In about 2006 the plaintiff returned to work for about 12 months at the request of his previous employer, replacing air-conditioning units. The plaintiff struggled in this period with shortness of breath and took regular breaks to cope with the problem. By the time he stopped working, he had “had enough”.
On 6 May 2008 the plaintiff was involved in a motor vehicle accident. On 14 May 2008 the plaintiff saw his general practitioner, Dr Julie Burke at the Yeppoon Family Practice (YFP), complaining of swelling on his left knee. The plaintiff was reviewed by Dr Peter Power at YFP on 29 May 2008, reporting that he felt “a bit down”. The plaintiff deposed that he recovered within a few months and got back to his normal daily life.
On 16 October 2009 the plaintiff saw Dr Burke complaining that he had a cough that was much worse at night and that he had noticed that his breathing was worse. The plaintiff gave evidence that he was worried because his shortness of breath had been getting worse since 1999 and that he got tired very easily. He was given some medication that did not assist. He found that he could avoid the cough and shortness of breath by not rushing and avoiding stairs and inclines.
On 29 September 2010 the plaintiff was reviewed by Dr Burke, by which time his breathing had improved a bit but he was still experiencing coughing fits. He noticed crackles in his chest and became worried that he may contract mesothelioma. He often got “down in the dumps” when his breathing or coughing got worse.
On 19 September 2011 the plaintiff saw Dr Nicholas Wong at YFP complaining of left-sided chest pain. The pain was worse when he took a deep breath. A chest x-ray taken a few days later showed pleural thickening and pleural plaques on the left hand side. The cough and shortness of breath continued at this time and he put up with the occasional pain on the left hand side when he took a deep breath.
CT scans were performed on 13 August 2014 and 14 June 2016. The plaintiff was told that they showed no change. The plaintiff found that as the years went on that his breathing got worse and that it took less effort to bring on shortness of breath and severe tiredness. The plaintiff continued to be able to look after himself.
On 23 March 2018 the plaintiff underwent a CT scan of his chest. Despite being told that there was no change, the plaintiff thought that his breathing was “terrible”. He was coughing every day and the cough made his breathing worse and occasionally caused pain on the left side of his chest. The plaintiff felt so tired and breathless that he became unsteady on his feet and had a number of falls in early to mid-2018.
On 3 August 2018 the plaintiff had a CT scan of his chest. On 6 August 2018 the plaintiff saw Dr Burke, reporting that he was feeling much worse. He was feeling weak, had left-sided chest pain and increased breathlessness.
On 15 August 2018 the plaintiff saw Dr Sudhakar Koduri, a specialist in General Medicine, at RBH.
On 30 August 2018 the plaintiff had a chest x-ray and underwent an ultrasound guided pleural drainage at RBH. A needle was inserted through the plaintiff’s back for the latter procedure, which he found very uncomfortable. Following this the plaintiff still felt severely short of breath, but better because he was not gasping for air as he had been before the procedure.
On 8 October 2018 the plaintiff consulted Dr Burke again because his breathing and cough had deteriorated. He was gasping for air again and feeling very tired.
On 5 December 2018 the plaintiff was admitted to Royal Brisbane and Women’s Hospital (Royal Brisbane) where he had a chest x-ray and some other tests. He was transferred to PCH on 11 December 2018. On 12 December 2018 the plaintiff underwent a further VATS procedure where pleural fluid was drained and biopsies were taken. After the operation the plaintiff experienced a lot of pain in the left hand side of his chest. The plaintiff was discharged from PCH on 15 December 2018.
The plaintiff described his life going “downhill” since December 2018. He has become increasingly dependent on his wife to take care of him. He has been unsteady on his feet, tired and struggling to breathe. When he coughs, it makes his breathing worse which makes him light-headed and unsteady on his feet and he has had some falls.
At the time when he saw Dr Heiner on 23 January 2019, the plaintiff and his wife were living at 39 Mary Street, Yeppoon (the Mary Street property), where they had lived for about 48 years. The house was high set with internal and external stairs and a steep driveway. The plaintiff was concerned that continuing to live at the Mary Street property was too difficult for him to manage because he was worried about falling down the stairs as a result of his breathlessness and unsteadiness on his feet.
The plaintiff and his wife sold the Mary Street property and moved to 8 Goldfinch Avenue Yeppoon in May 2019. The new house is low set with no stairs and has a walk in shower, which is much easier for the plaintiff to use.
The plaintiff deposed that his symptoms have continued to get worse and that he is now unable to walk more than 5-10 metres without needing to stop to catch his breath. He often feels as though he is gasping for air and cannot get enough air in. He described this feeling as “terrifying”. At these times, he feels light-headed and unsteady on his feet and he uses a walking stick.
He has difficulty standing in the shower due to breathlessness and muscle fatigue. He has chest pain every day and has been prescribed pain medication that does not help much. He also has the feeling that someone is sitting on his chest all of the time. The plaintiff is increasingly fatigued and takes regular naps throughout the day. He now spends his time sitting in his recliner or in the shed, with his wife bringing him his meals.
Until about 2017 the plaintiff would walk to the local shops which were down the hill from the Mary Street property. The plaintiff deposed that he had a few falls taking out the rubbish at the Mary Street property and so he had stopped doing those types of activities.
The plaintiff still spends some time in his shed, but he struggles with the walk, which is about 20 metres. He gets really out of breath and has to sit and recover. He used to enjoy wood turning in the shed, but now he finds that he sits and looks at it, before he loses concentration and needs to rest or have a nap. The plaintiff finds this depressing.
Prior to about June 2018 the plaintiff mowed the lawn, did the edges with a whippersnipper, removed weeds, pruned trees and watered the garden. He also did any home maintenance that was required, such as cleaning the gutters, washing the windows and carrying out repairs. At about this time the plaintiff no longer felt it was safe to use a ladder because he was unsteady on his feet. Mrs Boland has recently engaged contractors to erect a shed and to do a few jobs that the plaintiff would usually have done. The plaintiff also assisted around the house by washing up after meals and doing the vacuuming. He also carried in the groceries up the steep driveway at the Mary Street property and took the rubbish out.
In about June 2018 Mrs Boland arranged for a gardener to mow the lawns at the cost of about $20 per week. Since about June 2018 Mrs Boland took over the plaintiff’s outside gardening and yard work that he could no longer do. Mrs Boland spends about two hours a day in the garden of the new house. This has been necessary to establish gardens in the new house. The vacuuming used to take about one hour a week and cleaning the windows and the patio about two hours per week.
After December 2018 the plaintiff has been increasingly reliant on Mrs Boland to provide care for him including his activities of daily living (ADL). She often stands by and supervises him in the shower and assists him to get dry. They share the concern that the plaintiff could fall and injure himself.
When the plaintiff wakes up Mrs Boland makes breakfast for him. He then sits in his recliner or on a chair outside to read. He then takes a nap for a few hours. He then has lunch and another nap. He then watches television until dinner time and then Mrs Boland assists him to have a shower before he goes to bed.
During the day, Mrs Boland assists the plaintiff with mobility, getting in and out of chairs and into the car to go to medical appointments. She assists him in the bathroom and to dress and put his shoes on. Mrs Boland does the laundry, cleans the house, cooks and washes up. She does the grocery shopping and organises his medication. The plaintiff deposed that he could not do any of those things because of his shortness of breath and chest pain.
The plaintiff deposed that they used their savings to move house and that if they could afford it that he would hire a nurse to assist Mrs Boland to take the pressure off her.
The plaintiff estimated that between about June 2018 and 17 May 2019 (when they moved from the Mary Street property) Mrs Boland has taken over about seven hours per week of work that he used to perform around the house. Further, he estimated that Mrs Boland spent about eight to 10 hours a day taking care of him in the way he described.
From 17 May 2019 until the present, the plaintiff estimated Mrs Boland has provided “around the clock care” for him.
The plaintiff has had a very happy life with Mrs Boland. He enjoyed being active around the house and kept fit. He enjoyed going on cruises with Mrs Boland and they were keen to travel, which is now no longer possible. They enjoyed visiting their children and grandchildren interstate, but can no longer do so. The plaintiff enjoyed wood turning in his shed, but this too has been significantly curtailed.
The plaintiff feels that he has no quality of life anymore and that his independence has been taken away from him. He does not like being dependent on his wife for care and is concerned by the pressure it is putting on her. The plaintiff feels angry and upset.
In cross-examination the plaintiff recalled the motor vehicle accident of 6 May 2008 but denied that he suffered a head injury. He did not recall being excessively shaky after the accident, but agreed that he did start to experience falls after the accident at the Mary Street property. The plaintiff gave evidence that his falls were usually as a result of tripping over something at the back of the house.
The plaintiff gave evidence that the essential tremor was in his right hand and that his left hand was “pretty good”. The tremor caused him to spill a cup of tea from time to time, but that he could carry things in his right hand. He could cut his food and could use his lathe without any problem.
The plaintiff said that he continued to do lathe work for about two or three hours each day. His current project involved turning the outer housing of pens from wood, which he described as light work. He was also in the process of constructing a work bench for the shed that had been recently built at the new house. The plaintiff mainly uses wood that he has collected over the years. He presently does very little woodwork because he gets out of breath quickly.
The plaintiff recalled the incident on 24 September 2016 where he collapsed in the kitchen at the Mary Street property. He believed that he collapsed because of heat exhaustion and because he was not wearing a hat on the day. The plaintiff said that his last fall was about three or four months ago, but he could not remember the cause of the fall.
The plaintiff gave evidence that the new house is much more accessible, even for a wheelchair. The plaintiff can walk around the garden once or twice a day. He is currently sleeping through the night and is assisted by taking some medication that helps him sleep. The new bathroom is better suited for him than the one at the Mary Street property. He can presently shower himself and go to the toilet independently.
The plaintiff spends most of the day reading. His special interest is World War II. He often goes into the garden with Mrs Boland, where they are currently growing watermelons. The plaintiff described his role in the garden as “staying out of the way”.
In re-examination, the plaintiff gave evidence that he gets out of breath quickly going down to the watermelons. He occasionally finds himself waking at night and finding it hard to breathe without doing anything. The plaintiff said that it was hard to get up after falling because he feels like he loses strength and that he cannot find enough power in his lungs.
The plaintiff had a casual demeanour in giving his evidence. He appeared in his oral evidence to me to understate the level of his incapacity. I got the impression that he had accepted his fate and that he was getting on with what was left of his life. I infer that this attitude was intended to reduce the burden on Mrs Boland. The plaintiff gave his evidence in a straight forward manner and I am satisfied that he was doing his best to give honest evidence and that his evidence should be accepted. The conduct of the case by AVL gave me very little opportunity to assess the physical capability of the plaintiff, but I did observe at the completion of his evidence that he had significant difficulty getting out of the chair in which he was sitting and transferring to another chair that was alongside it.

The plaintiff’s medical records

The plaintiff tendered a bundle of contemporaneous medical records, including clinical notes from YFP, RBH, Royal Brisbane, Capricorn Coast Hospital (CCH) and PCH. [3] The defendant tendered its own bundle of clinical notes from YFP covering roughly the period from 2001 to 2018 because it contended that there were gaps in the plaintiff’s material. [4] Some of the later entries in the defendant’s bundle were not dated. I have done my best to date those entries by cross-referencing them to the list of the plaintiff’s consultations at YFP. [5]
3. Pages 113-278 of PX2.
4. DX1.
5. DX2.
The defendant’s argument based on the medical records, particularly the clinical notes of YFP, was that they demonstrated that prior to June 2018 that the plaintiff was so incapacitated by other medical conditions that he needed significant levels of care, which would translate to lower awards for the heads of damage covered by Issues 1, 3 and 4. Of particular relevance, were histories given by the plaintiff regarding:

the deterioration of his essential tremor;

problems with co-ordination and balance that resulted in him experiencing a number of falls;

and the possible relationship between (b) and a motor vehicle accident that occurred on or about 6 May 2008.

The contemporaneous medical records were provided to the plaintiff’s medical experts and the histories given by the plaintiff and his wife were the subject of the expert opinions given by them, in their reports and in cross-examination. The defendant submitted that the plaintiff’s experts failed to give the histories given to doctors and others at YFP adequate weight when formulating their opinions and accordingly those opinions could be put aside or should be given less weight.
The defendant did not qualify any experts to proffer an opinion on the content of the medical records.
I have carefully reviewed the contemporaneous medical records bearing in mind the following limitations of that exercise. First, I am not an expert and I cannot interpret those records on an equal footing with the plaintiff’s experts. Second, the YFP clinical notes should not be relied on as demonstrating concluded diagnoses on every complaint that the plaintiff or his wife ever made to a doctor. The practice of a general practitioner is often reliant on trial and error to alleviate symptoms or on a provisional diagnosis subject to further tests or specialist input. The clinical notes contain a number of provisional diagnoses that have not been conclusively demonstrated or consciously abandoned. Third, the material was presented to me in a w that invited me to fossick through it for relevant information. It is possible that there is other information in the medical records that I did not find or that I did not understand to be relevant. I have done my best to collect what appears to me to be the most relevant information to the issues for determination. Subject to those limitations, the following matters from the plaintiff’s medical records are relevant to the determination of the case.
First, the plaintiff attended YFP complaining of symptoms referrable to his asbestos-related condition more regularly than was indicated in his affidavit. For example, the plaintiff reported symptoms or was receiving treatment for extended periods at YFP in 2004, 2005, 2009, 2010, 2011, 2012, 2014, 2016, 2017 and in the early part of 2018 that were not the subject of specific mention in his affidavit evidence.
Second, the medical records contained objective tests or observations made by doctors that corroborate the plaintiff’s evidence that his ability to breathe was significantly compromised. For example, on 30 September 2009 the plaintiff underwent a lung function test demonstrating that his FEV1 was 58% of predicted and his FVC was 66% of predicted. Further, from about March 2016 onwards the plaintiff was observed by doctors to demonstrate signs of respiratory distress including use of accessory muscles in his neck and chest to breathe, reduced sounds of air entry to the lungs, signs of laboured breathing and the presence of crepitations and rhonchi in his chest. From about the same time, the plaintiff complained that he was waking at night with shortness of breath.
Third, the impact of the motor vehicle accident that occurred on 6 May 2008 appeared to last until about September 2009. In or about late May 2008 he was diagnosed with upper rib fractures after complaining of pain in that area and in the thoracic spine. The plaintiff also experienced anxiety resulting in insomnia and he appeared to Mrs Boland to be irritable and not as sharp as usual. He was eventually diagnosed with depression and given a prescription for an anti-depressant (Lexapro) which seemed to help.
Fourth, the histories given of the plaintiff falling were first given by Mrs Boland in the aftermath of the motor vehicle accident and have continued sporadically since that time. The relevant histories can be summarised as follows:

In September 2008, Mrs Boland was concerned that the plaintiff may have suffered a head injury in the motor vehicle accident that went unnoticed because he was suffering “mini blackouts” and was losing balance. He experienced recurring falls where he seemed to go over forwards. Ms Boland told Dr Burke that the plaintiff was experiencing shaking in his hands and that his twin brother had been diagnosed with Parkinson’s Disease. In April 2009, Mrs Boland reported that the plaintiff displayed a lack of co-ordination, became disoriented and confused and that his essential tremor was more prominent. In September 2009, Mrs Boland told Dr Burke that the plaintiff still had poor balance. [6]
6. Each of these histories was given in the series of consultations at YFP that followed the motor vehicle accident.

In or about April 2013 the plaintiff fell while taking out the rubbish bins. He fractured his left wrist, sustained a laceration to his forehead, a grazed left knee and a sprained left ankle.

On 16 April 2015 the plaintiff reported to Dr Sahra Zanuso at YFP that he had experienced no recent falls. He reported that his previous falls had occurred when he was going downhill and he had stopped doing that.

On 24 September 2016 the plaintiff passed out at home and was taken by ambulance to CCH. The plaintiff gave a history that he had been mowing and working in the garden before coming in for a meal and collapsing in the kitchen. He felt sweaty and light-headed before falling to the ground.

On 26 April 2017 Mrs Boland reported to a doctor at YFP that the plaintiff was off-balance and that she was concerned that he was at risk of falling.

On 26 April 2018 the plaintiff reported a fall caused by drowsiness after taking a different anti-depressant, Endep.

On 7 December 2018 Mrs Boland gave a history to a physiotherapist at Royal Brisbane that the plaintiff had experienced three or four falls per year for the past 3 years which sometimes occurred after exertion.

On 18 June 2019 the plaintiff told a registered nurse from YFP that he had fallen out of bed once in the last month.

Fifth, the plaintiff’s essential tremor seemed to get worse following the motor vehicle accident. It is unclear from the clinical notes if the deterioration was temporary or the result of a gradual decline. The relevant histories can be summarised as follows:

In March 2010 the plaintiff complained that the essential tremor was interfering with his day-to-day function and was given a prescription for a beta blocker medication which seemed to help. There are references to the plaintiff seeing at least two neurologists in the clinical notes, but no reports from a neurologist were in evidence.

In November and December 2012 the plaintiff was concerned that his essential tremor was getting worse and that he may have Parkinson’s Disease. He was reassured by Dr Burke that this had been investigated and that it was unnecessary to repeat the testing.

In April 2013, the plaintiff told Dr Burke that his essential tremor was worse and that it was interfering with him eating. An occupational therapy assessment was recommended, but there was no record of that assessment taking place in the evidence.

The evidence of Claire Boland

Claire Boland adopted the content of a draft affidavit dated 6 April 2020 when she was called to give evidence. Mrs Boland’s evidence can be summarised as follows. I will not repeat matters referred to in the plaintiff’s evidence, unless it is necessary to do so.
Mrs Boland was born on 3 November 1946 and is presently 73 years of age. Mrs Boland spent a lot of time caring for her four children when they were growing up. She also worked as a nurse in a retirement home and managed a coffee lounge in a shopping centre. She described her marriage to the plaintiff as a strong one built on a good friendship.
After they were first married in 1966, the plaintiff and Mrs Boland lived in Victoria for about six years before buying the Mary Street property. The Mary Street property held a lot of memories for them. When they moved in May 2019, Mrs Boland described the house as “old but liveable”. The plaintiff had done a lot of work to it over the years, but was unable to continue to do so. The steepness of the block and the stairs made it too difficult for the plaintiff to live there. Mrs Boland was very concerned that he might fall and hurt himself. The Mary Street property had enjoyable views to the ocean and they had good relationships with their neighbours.
The new house is much easier for the plaintiff. Mrs Boland can drive the car into the garage that is connected to the house and there are no stairs. The ensuite bathroom also has a walk in shower. The new house is more modern and there are less things that need doing that might interfere with Mrs Boland’s care for the plaintiff.
Mrs Boland deposed that the plaintiff first started complaining to her of shortness of breath and chronic cough in about early 1999. The plaintiff also suffered from a slight tremor, hearing loss and stiffness in his joints, but to Mrs Boland’s observations, those conditions did not stop him doing anything.
Mrs Boland has accompanied the plaintiff to many medical appointments and investigations from 1999 to date. Mrs Boland’s evidence about the plaintiff’s medical history relating to his asbestos-related condition was similar to that of the plaintiff and it is not necessary to repeat her version of that.
Mrs Boland deposed that as the plaintiff’s symptoms worsened, that their relationship changed. She began to care for him to try to assist him to get better. But his health has not improved and it has worsened and she has found herself doing more to look after him. He now relies on her for self-care and she stays close by because he cannot do much on his own. Mrs Boland is concerned that he is at risk of falling because he finds it difficult to move too far or too fast.
The plaintiff was always responsible for mowing the lawn and keeping the garden presentable. He also attended to any maintenance tasks that were necessary. He cleared the gutters and cleaned the windows.
Mrs Boland has done the driving for about the last nine years, but the plaintiff would fill the car with petrol at the service station. He can now no longer do that. They used to spend a lot of time on driving trips for holidays and to visit family but the plaintiff now finds travelling in the car uncomfortable and they are limited to short trips. Mrs Boland is upset by not being able to travel to see the family.
Mrs Boland described the plaintiff as a considerate husband because he always tried to make things easy for her. When she did the grocery shopping he would retrieve it from the car and take it into the house. He always took out the rubbish, put the bins out for collection and brought them back in. At the Mary Street property this involved negotiating the steep driveway.
In the last three months, Mrs Boland has observed a significant decline in the plaintiff’s health. He is very dependent on her. He sleeps more than he is awake during the day. He wakes to eat or to go to the toilet. Mrs Boland walks the plaintiff to the toilet because he is unbalanced on his feet and weak because he is short of breath. He has had a few falls and she prefers to support him so that he does not fall forward or lose his balance. Even when he is asleep, Mrs Boland remains close by in case he wakes up coughing or needing something. Mrs Boland is keen to keep him safe and to make him comfortable.
A respite worker comes for two hours every Tuesday and a friend, David, also comes to spend time with the plaintiff. David comes over once a week to take the plaintiff out for a few hours, which the plaintiff looks forward to. Mrs Boland would like to have more help around the house but they cannot afford it. She tries to avoid leaving the house and gets anxious about the plaintiff’s welfare when she does leave. The plaintiff does have a medi-alert alarm in the case of an emergency.
Mrs Boland deposed that they miss hosting their friends at the house. The plaintiff is too tired and unwell to cope with entertaining or going out to socialise.
Since June 2018, Mrs Boland has taken over tasks that the plaintiff used to do, including washing up, carrying the groceries in, taking out the rubbish, minor maintenance tasks like changing a light bulb and gardening. The new house did not have an established garden and Mrs Boland and the plaintiff have enjoyed doing that. Mrs Boland has done all of the work in establishing the gardens. Mrs Boland will not allow the plaintiff to do a simple task like the watering because she is concerned that he does not have the energy and that he will have a fall.
In the past, Mrs Boland and the plaintiff have been assisted by their daughter Tanya, who lives in Rockhampton. The other children live interstate. Tanya has incurable leukaemia and has been recently undergoing chemotherapy, making her too unwell to assist them or to travel to see them. Mrs Boland is “heartbroken” that she cannot do more for Tanya in her time of need.
From about June 2018 until 17 May 2019, when they moved into the new house, Mrs Boland estimated that she had spent about 7 hours per week doing the things that the plaintiff used to do. In addition she estimated that she had spent between eight to 10 hours per day doing the following:

preparing and bringing him meals;

driving him to and from appointments;

assisting him with mobilisation; and

supervising him.

Mrs Boland also hired a gardener to mow the lawns at a cost of $20 per week.
From 17 May 2019 to date, Mrs Boland deposed that she has been providing around the clock care, doing the same things listed in [78] above.
Mrs Boland understands that the plaintiff’s health will continue to deteriorate and there is no treatment for his condition. She is struggling to sleep well. She is very angry that her husband is suffering. She is concerned about the future, which is uncertain. She presently finds each day “a grind” and feels that the plaintiff is not living his best life.
Mrs Boland deposed that the plaintiff is virtually immobile. She does not know how she will manage in the future, especially at the end stage of the plaintiff’s life. She is determined to make him as comfortable as possible and to provide the best care for him that she can. There are days when she cries in response to the gravity of the situation. She loves her husband very much and she is struggling with the load of caring for him.
Mrs Boland gave evidence that the plaintiff has not been into his shed for quite a few weeks now. In the past he has used a small electric lathe to turn wooden pens. Sometimes when he is in the shed she has seen him just sitting there and resting.
Mrs Boland gave evidence that she rarely leaves the plaintiff because she is scared that he will have a coughing fit, get short of breath, pass out and fall over. He has had a few falls at the new house as well as at the Mary Street property. Mrs Boland described that the plaintiff appears to get light-headed before a fall. He struggles to get his legs back under him, if he does fall, and he requires her assistance to get up. She uses a chair for him to lean on.
At night, the plaintiff sleeps soundly but can be woken up by a bout of coughing. He uses cough lollies to ease the cough. Mrs Boland sometimes gets up to make sure he is alright. Mrs Boland supervises the plaintiff in the shower, but not every day. Some days are better than others and on the days he seems weak she is there to watch him. He gets very breathless after walking 5-10 metres. He can walk to the shed, but needs to sit down when he gets there. The shed is about 5 metres from the back door of the house.
After the motor vehicle accident, Mrs Boland observed that the plaintiff had some skin off his head and a sore shoulder. He did not do things around the house for two or three months after the accident, but after that he returned to normal.
In cross-examination, Mrs Boland recalled being concerned about the plaintiff after the accident and speaking to Dr Burke about that. She understood that the car rolled over in the accident and that the plaintiff had hit his head. The car was extensively damaged and “written off” after the accident. She recalled telling Dr Burke that the plaintiff was falling over forward. Mrs Boland gave evidence that it did not occur immediately after the accident, but that it happens all of the time now. She did not recall saying to Dr Burke that she thought the falls were a consequence of the accident.
Mrs Boland agreed that the plaintiff had written a number of letters to the Department of Social Security after the accident and that he was quite “snappy”, because their pension was cut off. She agreed that his essential tremor did seem to get worse after the accident. Mrs Boland said that his essential tremor is in both hands but worse in the right hand. He has trouble carrying liquids, but can cut his food on most days, depending on what it is.
The plaintiff fell at the Mary Street property on one occasion whilst taking out the bins for collection. He sustained a broken arm and a graze on his head. He rolled down the hill past the vacant lot next door to in front of the neighbour’s house after that. Mrs Boland thought that happened about 10 years ago, but remembered it because it gave her a fright. Mrs Boland went out looking for him after he did not return and found him down the hill. For about four or five years Mrs Boland thought that the plaintiff has had a problem with overbalancing.
About three years ago, Mrs Boland had to go into hospital to have surgery on her hip and she was very concerned about how the plaintiff would cope while she was in hospital.
Mrs Boland recalled the episode where the plaintiff collapsed in the kitchen of the Mary Street property.
Mrs Boland gave evidence that the plaintiff has problems with his vision and the ophthalmologist has advised that there is nothing that can be done for him. He struggles with distance vision mostly. He also has industrial deafness.
Mrs Boland agreed that she has been concerned that the plaintiff is unsteady on his feet for many years. Whilst she is also concerned about his breathing and coughing, she accepted that she does not want to leave the plaintiff if she can avoid it, because of his falls and that has been the case for a number of years. Mrs Boland agreed that she had given a history in December 2018 to a physiotherapist at PCH that the plaintiff had three or four falls each year for the previous three years. She gave evidence that some of those falls were brought on by a coughing fit. Mrs Boland agreed that the plaintiff had been using a walking stick for a few years to assist him with his balance.
Mrs Boland agreed that she felt more secure about the plaintiff’s safety because there was less chance of him falling at the new house.

Mrs Boland accepted that she was free to do her own activities while the plaintiff was sleeping, once she had finished the housework. Usually this would consist of sewing for an hour or two.
Prior to self-isolating in response to the COVD-19 pandemic, Mrs Boland would do the grocery shopping once per week in the morning and would leave the plaintiff alone at home to do so.
Mrs Boland was a good and reliable witness and I am satisfied that her evidence should be accepted. She has accepted a lot of responsibility for the plaintiff’s care and she appeared to be organised and methodical, and this was reflected in her evidence. I am satisfied on the evidence that she has been concerned for the plaintiff’s welfare for a number of years. She has attended many of the plaintiff’s medical appointments and taken charge of giving the plaintiff’s history. This was notable in the aftermath of the motor vehicle accident, shortly before the plaintiff was first diagnosed with and treated for depression.

The evidence of Dr Maurice Heiner, Consultant Thoracic Physician

The plaintiff tendered three expert reports of Dr Maurice Heiner, Consultant Thoracic Physician, dated 25 January 2019, 25 July 2019 and 20 March 2020. Dr Heiner was also called to give evidence and cross-examined.
Dr Heiner has been a practising respiratory physician for more than 35 years. He has experience in aged care and has served on the board of an aged care facility.
Dr Heiner’s evidence can be summarised as follows. [7] Dr Heiner examined the plaintiff on 23 January 2019. Dr Heiner was provided with the plaintiff’s medical records. Dr Heiner opined that the plaintiff was suffering from the following asbestos-related diseases:
7. I have followed the structure of Dr Heiner’s reports, interposing some of parts of his oral evidence where it is necessary for amplification or demonstration of certain points.

Multiple benign pleural plaques;

Recurrent pleural effusions, more marked on the left than the right;

Rounded atelectasis; and

Asbestosis.

The plaintiff gave a history of increasing shortness of breath over the past 18 months with a marked deterioration in the last six months. He could no longer perform tasks around the house or ADL including showering, dressing and walking up stairs. The plaintiff was concerned by the build-up of fluid on the left side of his chest, even since his last pleural drainage in December 2018. He had no history of coronary artery disease or other respiratory illness. The plaintiff had never smoked.
Dr Heiner noted that the plaintiff’s medical records disclosed a history of cholelithiasis and cholecystsitis [8] , diverticular disease and diverticulitis [9] , degenerative joint disease involving his large joints and vertebrae, an essential tremor and hearing loss. Dr Heiner took a history from Mrs Boland that the plaintiff had been involved in a motor vehicle accident in which he suffered a serious head injury, from which he had fully recovered. As a matter of family history, the plaintiff’s brother has been diagnosed with Parkinson’s Disease.
8. Gall stones and inflammation of the gall bladder, respectively.
9. Diverticular disease is an asymptomatic condition involving the formation of pockets (diverticula) in the large intestine. Diverticulitis occurs when the diverticula become infected by the trapping of bacteria in the pockets.
On examination, Dr Heiner noted fluid build-up at the costal margins [10] on both sides but much more marked on the left. It was not painful to palpitation. Dr Heiner heard good air entry to the lungs, more so on the right and crackles in the base of both lungs, extending from the base to the inferior angle of the scapula [11] . Dr Heiner did not find any evidence of cardiac failure, or lymphatic abnormality. Dr Heiner observed the plaintiff’s essential tremor to be minimal and he could not detect any signs of Parkinson’s Disease.
10. The bottom edge of the rib cage.
11. The lowest part of the scapula.
Dr Heiner noted on review of the plaintiff’s medical records that he was first diagnosed with ARPD in 1999 after undergoing surgery to drain the right pleural cavity and to obtain a biopsy. The biopsy demonstrated the presence of fibrosis. The various radiological examinations since that time have demonstrated pleural thickening, pleural calcification and a rounded atelectasis. [12] On one occasion, the pleural fluid that accumulated was enough to fill the entirety of the left lung, causing what is known radiologically as a “universal whiteout”.
12. A rounded atelectasis occurs when a part of the lung is segmented off and rendered ineffectual by the abnormal growth or redundancy of the pleura, secondary to the presence of a pleural effusion.
In the last 18 months, the plaintiff’s medical records indicated fluid accumulating bilaterally in the pleural spaces, requiring the drainage of two large pleural effusions on the left hand side. A pleurodesis was conducted on the left, but was not completely successful, with fluid re-accumulating. Dr Heiner gave evidence that a pleurodesis involves applying talc to the envelope in the pleura where fluid has accumulated to encourage the two surfaces of the envelope to stick together and to thereby eliminate the space where fluid can re-accumulate. In the plaintiff’s case, after the pleurodesis, the envelope has stuck together in an irregular honeycomb pattern causing there to be pockets in the pleural space in which fluid has collected and cannot now be drained. Dr Heiner opined that the continued accumulation of fluid on the left hand side of the plaintiff’s chest is the main reason for his breathlessness, however, noted that even after pleural drainage, that the plaintiff has continued to experience shortness of breath and a very limited exercise tolerance.
Dr Heiner noted that the accumulation of fluid has been accompanied by atelectasis and collapse of various segments of the lower lobe of his left lung, with those changes improving after the fluid was drained.
Dr Heiner opined that the crackles present at the bases of both of the plaintiff’s lungs were consistent with asbestosis. On 12 December 2018, it was seen in a further VATS procedure that the lower left lobe of the plaintiff’s left lung was trapped and did not expand. The histology of the biopsy taken on this occasion demonstrated mild pleurisy with extensive fibrosis.
Dr Heiner arranged for the plaintiff to undergo a lung function test on 23 January 2019. Dr Heiner opined that the results of that test demonstrated a significant restrictive pattern, consistent with asbestosis.
In January 2019, Dr Heiner opined that the plaintiff’s life expectancy of 7.5 years had been shortened to two years or less. Dr Heiner opined that the plaintiff would probably suffer further pleural effusions and that it was unlikely that they could be drained. Dr Heiner expected that the plaintiff would experience increased shortness of breath leading to right sided heart failure, pneumonia and increasing pulmonary infections flowing from a head cold. Dr Heiner opined that the plaintiff would require more frequent general practitioner consultations and seven-day periods of hospitalisation to treat the expected infections, which Dr Heiner estimated would occur three times per year. Dr Heiner set out a number of costings for the expected medical consultations and interventions referred to, which I will return to in dealing with Issue 4.
Dr Heiner’s second report was prepared following the provision of Ms Vincent’s report dated 12 April 2019, to him on 10 July 2019. In his second report, Dr Heiner opined, on acceptance of the history given to Ms Vincent and her observations of the plaintiff that he had deteriorated. [13] Dr Heiner agreed with Ms Vincent’s assessment of the plaintiff’s need for care in the past. Dr Heiner opined that the plaintiff was on the verge of becoming completely dependent and that it was likely that as he became more breathless that he would experience fatigue, lack of stamina, gait disturbance, weight loss, loss of appetite and that he would become more prone to falls. In his oral evidence, Dr Heiner said that older people who became debilitated as a result of illness de-condition quickly particularly through muscle weakness in the legs caused by lack of movement and changes in appetite making them unsteady on their feet and posing a risk of falls. Dr Heiner gave evidence in cross-examination that this condition is known as sarcopenia.
13. See [126]-[136] below.
Dr Heiner’s third report was prepared following the provision of Ms Vincent’s report dated 20 March 2020 and the plaintiff’s recent medical records. In his third report, Dr Heiner opined, on acceptance of the history given to Ms Vincent,[14] that the plaintiff had suffered an increase in his shortness of breath to the extent that he could no longer walk more than 5-10 metres, that he had trouble standing in the shower from muscle fatigue and shortness of breath and that he spent a lot of time sleeping and that he was not performing ADL. Dr Heiner understood that the plaintiff had moved from the Mary Street property and that he was no longer doing any home maintenance or gardening.
14. See [151]-[153] and [156]-[158] below.
Dr Heiner understood that the plaintiff’s increase in dyspnoea was not precipitated by a chest wall injury, infection or heart failure. The plaintiff was dependent on his wife for care and assistance with ADL and that she kept a constant watch on him to prevent him falling. Dr Heiner agreed that he required eight to 10 hours assistance during the day and supervision at other times including during the night.
Dr Heiner expected that the plaintiff would be soon entirely dependent on his wife, require external nursing care and 24 hour oxygen. He opined that the plaintiff required renovations to his bathroom and the installation of ramps to the house to accommodate a wheelchair.
A lung function test performed on 20 February 2020 demonstrated a significant deterioration in the plaintiff’s FEV1 and FVC consistent with worsening asbestosis.
Dr Heiner revised the plaintiff’s life expectancy in his third report to six to 12 months.
In cross-examination Dr Heiner agreed that he had been through the plaintiff’s medical records that were provided to him. Dr Heiner recalled reading in the YFP records that Mrs Boland had told Dr Burke that she was concerned that the plaintiff had recurring falls. Dr Heiner did not record a history of falls in his first report. Dr Heiner accepted that generally a person of 80 years of age with a history of recurring falls should not be left alone, but that it would depend on the cause of the falls. Dr Heiner did not accept that a history of three or four falls a year was significant for an elderly person.
Dr Heiner accepted that he had read in the YFP records that the plaintiff has experienced a worsening of his essential tremor about 10 years ago. Dr Heiner did not agree that a worsening of the essential tremor would have an impact on the plaintiff’s ability to live independently. It may mean that a person may not be able eat soup or eat with a fork with the affected hand, but an essential tremor in itself, in the absence of Parkinson’s Disease, does not lead to serious pathology. Dr Heiner gave evidence that an essential tremor may be exacerbated by an illness or by getting a fright. Dr Heiner accepted that an essential tremor in both hands would make eating and ADL quite difficult and said that respiratory failure would be likely to make an essential tremor worse.
Dr Heiner accepted that he was aware that the plaintiff has suffered from an altered (wide-based) gait. Dr Heiner believed that this had occurred sometime after the motor vehicle accident and that it had improved. Dr Heiner expected that the plaintiff would have been unsteady on his feet as a result of his respiratory condition and that the development of a wide-based gait was a common adjustment in people who were unsteady on their feet.
Dr Heiner did not accept that the history given by Mrs Boland that the plaintiff’s “shakiness” and unsteadiness on his feet occurred as a consequence of the motor vehicle accident, because on the neurology records that he had reviewed, the plaintiff did not exhibit any signs of cerebellar disease [15] .
15. The symptoms of cerebellar disease include impaired coordination in the arms or legs, frequent stumbling and an unsteady gait.
Dr Heiner was taken to the history given by Mrs Boland to the physiotherapist on 7 December 2018. Dr Heiner agreed that he had not questioned the plaintiff about the reason for those falls, but thought that the history was consistent with someone experiencing respiratory failure. Dr Heiner gave evidence that such a patient would usually require supervision when walking, going to the toilet or having a shower. He expected that if the plaintiff did fall that he would have trouble getting up without assistance. Dr Heiner did not accept the proposition that his evidence was that all of the falls that the plaintiff had experienced since 2008 were related to his respiratory disability.
Dr Heiner gave evidence that the history of falls recorded by Dr Burke in the YFP records was not significant. At transcript p31 lines 42-45, the following exchange occurred in cross-examination:

Q.---Dr Heiner, if it is the case that the cause of the falls historically has been something other than his respiratory disability, it remains the case that the history of the falls is sufficient along with his age to mean that he should not be left alone? A.---Three falls a year.
Q.---Is that a yes or a no? A.---I think he needs to be watched, he needs somebody with him.

Dr Heiner accepted that he was aware that the plaintiff had impaired vision and hearing, but did not feel he was qualified to comment on what impacts those impairments may have on the plaintiff’s need for care or quality of life.
In re-examination, Dr Heiner clarified that his second answer that I have set out in [121] above, related to the present position. This answer was consistent with the language used in the second answer and my impression of the evidence at the time that it was given was that Dr Heiner and senior counsel for the defendant were at cross purposes as to the timing of the need. Dr Heiner gave evidence that the signs of respiratory distress included tachypnoea [16] , gasping for breath and the use of accessory muscles [17] to assist with breathing.
16. The increased rate of respiration, with a normal rate being about 12 breaths per minute.
17. The muscles in the chest and neck, which can also lead to pain.
The defendant submitted that Dr Heiner’s evidence should not be accepted because it did not adequately consider the content of the YFP records and Mrs Boland’s concerns expressed in them. Part of the submission was that Dr Heiner sought to become an advocate for the plaintiff by seeking in his evidence to assert that each of the plaintiff’s falls were caused by his respiratory condition. On my review of the transcript, Dr Heiner disavowed that proposition when it was put to him. Rather, I understood his evidence to be that the plaintiff’s respiratory condition was so serious that it was capable of being the reason for his de-conditioning, unsteadiness on his feet and susceptibility to falls leading to the need for supervision, irrespective of the actual cause of the previous falls. However, Dr Heiner believed that it was likely that some of the falls were related to the plaintiff’s respiratory condition.
It would be fair to characterise Dr Heiner at times as argumentative and as not answering the question that he was asked. However, there were occasions when Dr Heiner and senior counsel for the defendant were at cross purposes and when the AVL was of poor quality. I am satisfied that any “advocacy” entered into by Dr Heiner was as a result of him trying to communicate the severity of the plaintiff’s condition, which in my view is corroborated by other evidence and reflected in the common ground between the parties. Overall, I am satisfied that Dr Heiner was trying to assist the Tribunal and that his evidence should be accepted.

The evidence of Ms Amy Vincent, Occupational Therapist

The plaintiff tendered two reports of Ms Amy Vincent, Occupational Therapist, dated 12 April 2019 and 19 March 2020. Ms Vincent was also called to give evidence and cross-examined. Ms Vincent’s evidence can be summarised as follows.
Ms Vincent attended the Mary Street property on 19 March 2019 to undertake an assessment of the plaintiff. She had been provided with the plaintiff’s medical records.
Ms Vincent noted and described the topography of the Mary Street property and the front entrance stairs. She also noted that the bathroom consisted of a shower positioned over a bath. Grab rails had been installed in the shower and the toilet.
Ms Vincent was given a history that the plaintiff had been previously responsible for lawn and garden maintenance and all manner of home maintenance tasks including cleaning the gutters, washing the windows and completing home repairs. He would also wash up after meals and vacuum the floors. He previously carried the groceries up from the car after Mrs Boland did the shopping. He was able to walk down the hill to the local shops to get the newspaper and also took out the bins each week. Mrs Boland had usually been responsible for grocery shopping, laundry, meal preparation and cleaning the house.
The plaintiff gave a history that over the last 18 months he had noticed increasing shortness of breath on exertion that had limited his ADL. Ms Vincent noted Dr Koduri’s opinion that on or about 15 August 2018 the plaintiff had a moderate sized left sided pleural effusion and that he had been mowing the lawn until about two months prior to that. The plaintiff reported that he engaged commercial assistance with the lawn mowing in about June 2018 at the cost of $20 per week.
The plaintiff gave a history that he had been unable to walk to the local shops and had fallen over a number of times when trying to take out the rubbish bins. Mrs Boland had taken over more of the gardening tasks as the plaintiff was restricted with gardening because he became significantly breathless when bending forwards. Mrs Boland said that the plaintiff also had difficulty from getting out of a seat in the garden. The plaintiff said that he had been unable to complete any work on a ladder for the past 18 months as a result of poor balance. He had engaged a plumber on a number of occasions to repair leaks. He previously would have completed this type of work himself. He had been unable to wash up or vacuum because he had poor endurance in standing up and became breathless. The plaintiff thought that his breathlessness had increased significantly over the last six months.
At the time of the assessment, the plaintiff was independent with showering, dressing, grooming and toileting. He was slower in completing these tasks as a result of breathlessness on exertion. He often sat down to dress and rest as required.
Mrs Boland received one hour per week respite care. This is usually when she completes the grocery shopping. Mrs Boland was reluctant to leave the plaintiff at home alone as she was concerned that he may have a fall.
The plaintiff gave a history that he usually wakes up at 6.30am and is able to make his own breakfast. Mrs Boland manages his medications. The plaintiff said that he enjoyed reading and spent most of his day sitting on the front verandah, reading. He usually then “potters around under the house” for a short period and will then need to rest in a recliner due to fatigue and breathlessness. The plaintiff was able to prepare something light for lunch and then spend the afternoon seated in the recliner. The plaintiff showered in the evenings. Mrs Boland prepared dinner and the plaintiff retired to bed at about 9.30pm.

The plaintiff had a use of a single point walking stick and a four-wheel walker. He left the four-wheel walker downstairs as he was unable to carry it up and down the stairs. The plaintiff also had a personal response system. He used an electric riser recliner that he purchased six months ago when he was having difficulties getting up from his lounge chair.
The plaintiff reported being significantly breathless on exertion and whilst talking. He had a limited walking endurance and needed to take seated breaks after physically strenuous tasks such as having a shower. The plaintiff complained of ongoing fatigue requiring several naps a day of about one hour on each occasion. The plaintiff was experiencing chest pain when coughing and that the left side of his chest was swollen compared to the right. He had pain and tenderness over the left rib area since the last pleural drain was removed. He reported having a persistent cough that occurred in episodes that he found hard to stop. His coughing had improved slightly since the last drainage but had been slowly returning. The plaintiff told Ms Vincent that he had experienced weight loss of about 7 kgs recently and that his appetite was reduced.
On examination, Ms Vincent observed the plaintiff to walk with a single point stick and used the furniture in the house to support himself. He was noticeably short of breath during conversation and coughing throughout the examination. The plaintiff showed Ms Vincent around the property and was short of breath after walking short distances. Ms Vincent observed an essential tremor in his right hand. The plaintiff demonstrated poor static and dynamic balance. [18] The plaintiff told Ms Vincent that he had experienced multiple falls particularly when transferring in and out of the shower over the lip of the bath. He was reliant on grab rails in the shower and beside the toilet for stability and transfers. Ms Vincent observed the plaintiff to transfer on and off his bed. He was reliant on a grab rail installed on the wall beside the bed to do this. The plaintiff slept in a separate bedroom to Mrs Boland.
18. Static balance refers to the ability to balance whilst stationary and dynamic balance refers to the
Ms Vincent opined that the plaintiff demonstrated significant ongoing shortness of breath on mild exertion and during conversation, together with poor exercise tolerance, reduced mobility and balance. She opined that his chest pain, coughing and increased fatigue occurred as a result of his asbestos related condition. Ms Vincent accepted the plaintiff’s history that since about June 2018 he has been breathless on exertion, experiencing fatigue and chest pain and had a reduced exercise tolerance. She accepted that his mobility and balance had deteriorated as a result and that he has experienced increasing difficulty with his usual ADL, including mowing and gardening, cleaning the patio area, home maintenance tasks, taking out the bins, vacuuming and washing up after meals. Some of those tasks have been assumed by Mrs Boland and others have been left unattended to. Ms Vincent opined that 6.67 hours a week was a reasonable estimate for the level of assistance that the plaintiff had received gratuitously since June 2018 as a result of being unable to attend to these tasks. The commercial equivalent of providing this level of assistance was $365.90 per week.
Ms Vincent assessed the plaintiff’s current level of dependency by reference to the Eastern Co-Operative Oncology Group Scale of Performance Status (ECOG) and the Karnofsky Scale of Performance Status (KPS). These instruments are commonly used to assess how a patient’s disease is progressing, how the disease affects ADL and to determine appropriate treatment and prognosis. As the disease progresses, there is usually an exponential decline in health and the patient transitions from normal level of functioning (ECOG 0) to a high level of dependence (ECOG 4).
As at 19 March 2019 Ms Vincent assessed the plaintiff as having a functional presentation of between ECOG 2 and ECOG 3. The plaintiff was ambulatory and capable of self-care (ECOG 2) but continued to be confined to bed or a chair for more than 50% of his waking hours (ECOG 3).
The KPS measures a person’s overall function or ability to manage their own ADL. It is a single score of between 0 and 100 signed by a clinician on the basis of observations of the patient’s ability to perform common tasks. A score of 100 signifies normal physical activities with no evidence of disease. Decreasing numbers indicate a reduced performance status. Ms Vincent used the KPS to score the plaintiff at 60/100. That score indicated that he required assistance but was capable of care for most of his own personal needs.
As at 19 March 2019, Ms Vincent classified the plaintiff’s current level of dependency as between moderate and high.
On the basis of the history given by the plaintiff and Dr Heiner’s opinion, Ms Vincent considered the plaintiff to be progressing to ECOG 3, where the patient is capable of limited self-care and confined to a bed or chair for more than 50% of waking hours. At this stage of the KPS, a person is considered to be unable to care for themselves requiring the equivalent of institutional hospital level care. The requirements for care and assistance increase significantly in this phase, particularly for someone who is continuing to be cared for in the community.
Considering his current level of functioning, Ms Vincent considered that eight to 10 hours per day was a reasonable estimate of the level of assistance required by the plaintiff as a result of his asbestos related condition. This included direct care and assistance and indirect care such as distant supervision to ensure that he had what he needed and did not fall. The commercial equivalent cost in providing this level of assistance was between $3,128 and $3,910 per week.
Ms Vincent opined that as the plaintiff progresses into ECOG 3, his requirements for care and assistance will increase. He will require hands-on assistance with showering, toileting, dressing and grooming. He will be completely unable to participate in household activities or ADL. He will continue to require hands-on assistance or supervision for all of his mobilisation. It is likely that he will require assistance with turning in bed or repositioning from a pressure care management perspective and/or additional overnight assistance with pain management and toileting. He will require ongoing emotional support.
Ms Vincent opined that it was reasonable to allow 12 to 16 hours per day of assistance as the plaintiff progressed into ECOG 3 as a result of his asbestos related condition. The commercial equivalent cost of providing this level of assistance is between $4,692 and $6,256 per week.
ECOG 4 represents the complete dependence phase and signifies a transition to significant disability. In this stage, the person is completely disabled and totally confined to a bed or a chair and unable to carry out any self-care. According to the KPS, at this point in time the patient is very ill and requires active supportive treatment. Ms Vincent opined that this stage is associated with full time 24 hour per day care. Assistance would be required with pain management, managing supplementary oxygen and monitoring flow rates and assistance with all basic care such as toileting, bathing, hygiene, mouth care and feeding. Emotional support during this time is also essential. The cost of providing this level of assistance in the home setting would be $9,384 per week.
At the end stage, the plaintiff would require 24 hour per day care in a hospital or palliative care hospice setting where there are appropriate staff on hand to deliver end-of-life care. This care would cost approximately $30,000, being $10,000 per week for three weeks.
Ms Vincent opined that the plaintiff had a need to be provided with some equipment that would assist with his care. I will return to deal with the specifics of that list in Issue 4, because there is some argument about those matters.
On 18 March 2020, Ms Vincent conducted a telephone conference with the plaintiff and his wife for the purposes of preparing a second report as an update to her earlier evidence. The plaintiff and his wife had moved into their new residence at that time.
In addition to the matters outlined in her report of 12 April 2019, Ms Vincent noted that the plaintiff had been complaining of a dull dragging discomfort in his chest that Dr Koduri thought was neuropathic pain. The plaintiff had been commenced on medication to deal with that pain. The medication had been effective in assisting with his sleep and some pain reduction.
The plaintiff reported that his symptoms of breathlessness had increased. He was breathless when mobilising over short distances and required a seated break after walking about 5 to 10 metres. Mrs Boland reported that the plaintiff had difficulty standing in the shower due to breathlessness and his showers were relatively short. Mrs Boland reported that the plaintiff’s mobility had deteriorated and that he had experienced multiple falls. The plaintiff was experiencing increased fatigue and sleeping a lot during the day. Mrs Boland reported that the plaintiff slept a lot during the day. Mrs Boland gave a history that the plaintiff’s cough was persistent day and night. He experienced chest pain when coughing, which is exacerbated by air conditioning. They continue to sleep in different bedrooms as a result of the plaintiff’s coughing.
Ms Vincent was provided with a number of photographs of the new house. She noted the differences in access to the houses as well as the set-up of the ensuite that the plaintiff used.
Ms Vincent opined that on the history she was given on 18 March 2020 that it appeared that the eight to 10 hours per day of assistance had been appropriate up and until about the time when the plaintiff and Mrs Boland moved to the new house on 17 May 2019. It the appeared from the history that the plaintiff’s condition had worsened from that point in time onwards, represented by increasing breathlessness on exertion, deteriorating mobility and recurrent falls. Ms Vincent opined that the plaintiff had proceeded to ECOG 3 by the time they moved into the new house, and that Mrs Boland has provided increasing amounts of assistance to the plaintiff since that time.
Ms Vincent was told that the plaintiff usually uses a single point stick for mobility. Mrs Boland encourages him to use the four-wheel walker due to his poor mobility and falls risk. The plaintiff has experienced recurrent falls. The plaintiff requires assistance to transfer on and off a dining room chair safely. These chairs have no arm rests. The plaintiff now requires an over-the-toilet frame to facilitate transfers onto the toilet. There is a grab rail beside the toilet as well. The plaintiff requires the electric riser function in the arm chair to rise from the seated position. He is unable to transfer on and off the recliner without this function. The plaintiff is able to get in and out of bed independently, although on occasions this transfer requires some effort.
Ms Vincent was told that the plaintiff is continuing to shower himself. Mrs Boland stands by ready to give assistance particularly when he is getting in and out of the shower, because the tiles are particularly slippery. The plaintiff stands to shower but does so quickly as a result of his poor standing tolerance. He is independent with dressing tasks which he performs whilst seated. The plaintiff has had some urinary incontinence related to his poor mobility and inability to get to the toilet on time.
Mrs Boland continues to do the things around the house that the plaintiff used to do, outlined at [129] above. Mrs Boland recently got a contractor to erect the shed and complete a few other jobs that the plaintiff would have usually done himself. In addition, Mrs Boland has taken on the task of establishing gardens at the new house for about two hours per day. This is the type of work that the plaintiff would have undertaken prior to his illness.
Mrs Boland provides assistance to the plaintiff throughout the day as required. She prepares him drinks and snacks and brings them to him wherever he is seated. She continues to manage his medication and to provide supervision to maintain his safety. She provides assistance with chair transfers and mobility as required. She undertakes all of the meal preparation and household cleaning. She goes out once per week for a maximum of about 45 minutes to do the grocery shopping and makes sure that the plaintiff is safely in his recliner before she goes. She tends to go to the shops early so that the plaintiff is not home by himself for too long. She continues to drive him to and from all of his medical appointments. She continues to receive one hour respite care per week.
Ms Vincent opined that assistance for a period of eight to 10 hours per day was reasonable for the period March 2018 to May 2019. Ms Vincent opined that from 17 May 2019 to the present, the plaintiff had regressed fully into ECOG 3 and required 24 hours per day care. It was reasonable for Mrs Boland to be present monitoring the plaintiff’s needs and providing support to him when it was required. Mrs Boland’s presence in the home overnight was essential to ensure the plaintiff’s safety, particularly as he was prone to falling and gets up during the night to use the toilet. Ms Vincent opined that it would not be safe to leave the plaintiff alone overnight or for extended periods during the day due to his declining mobility, history of falls and an inability to independently meet his basic daily needs. The cost of providing 24 hour a day care with an inactive overnight shift would be $8,136 per week. This figure includes personal assistance for 16 hours per day and inactive overnight care for eight hours per day representing the cost of having a carer available to tend to the needs of the plaintiff, if required during the night.
Ms Vincent opined that the cost of replacing the household chores that would have been performed by the plaintiff, including two hours per day to establish a new garden, would cost $780.08 per week.
From the photographs of the new house, Ms Vincent opined that ramps were required at the entrances to the home to be able to cope with a four-wheel walker. The plaintiff would also benefit from a concrete path leading from the rear patio to the entrance to the shed to allow him to negotiate this passage safely with a four-wheel walker or a wheelchair. Ms Vincent estimated that the cost of the concrete path to be in the order of $4,000.
From the photographs of the ensuite bathroom, Ms Vincent opined that there was insufficient room to use a shower chair to assist the plaintiff to be seated whilst showering. Ms Vincent noted that Mrs Boland considers the floor tiles to be particularly slippery when wet. Ms Vincent noted that there is no floor drain to enable the use of a shower commode. Ms Vincent recommended completing modifications to the bathroom to replace the existing features and fittings to ensure that there was sufficient room for the plaintiff to use a hand-held shower head on a shower chair on a non-slip floor. Ms Vincent recommended the installation of a wall-hung vanity to facilitate seated grooming tasks and the installation of an elevated pan toilet. Ms Vincent estimated these modifications to costs in the order of $20,000.
Ms Vincent opined that the plaintiff required a height adjustable armchair to use in the dining room as a matter of urgency as he has had a number of near miss falls attempting to transfer on and off the existing dining room chairs. He has difficulty rising from a seated position without the use of an armrest. A suitable chair would cost about $265.
Ms Vincent provided an updated list of equipment that would assist the plaintiff to be cared for in his home at various stages of his progression. I will return to this list in my discussion of Issue 4.
Ms Vincent confirmed her previous evidence that a progression to ECOG 4, being the complete dependence phase would cost $9,384 per week if that care was to be provided at home.
In cross-examination, Ms Vincent accepted that from reading the YFP notes that she was aware that the plaintiff had been involved in a motor vehicle accident. Her understanding was that the plaintiff had recovered from it and that it was not relevant to her functional assessment of his current capacity when she examined him on 19 March 2019. Similarly, she did not include a past history of falls recorded in the YFP clinical notes because they did not impact on his present functional capacity.
Ms Vincent did not consider a history of three or four falls a year to be regular or significant. The plaintiff was still able to carry on his normal activities, including physical activities such as mowing the lawn, gardening and walking down the hill (from the Mary Street property) to the local shops. Ms Vincent gave evidence that she considered a history of being unsteady on his feet in the same way. She said that people who are unsteady on their feet do not tend to do physical activities of the type that the plaintiff could do, because those activities require a level of balance and the history did not suggest that his balance was interfering with his ability to do those tasks.
Ms Vincent accepted that falls in a man of the plaintiff’s age were of concern, but she would have needed to know the reason for the falls for them to be significant to her assessment. She noted that there had been no medical interventions such as sending the plaintiff to a falls education course or prescribing the use of a four-wheeled walker. She believed on the history that she was given that he became more prone to falls as his respiratory condition deteriorated, in the period after June 2018.
Ms Vincent gave evidence that her observations of the plaintiff on 19 March 2019 were consistent with a man who was significantly immobile as a result of his respiratory condition. He was reliant on furniture for stability, breathless and gasping for air, putting him at a high risk of falling.
Ms Vincent did not think that Mrs Boland’s concern about the plaintiff’s propensity to fall was significant to her assessment. She accepted that Mrs Boland could have been genuinely concerned in the period before June 2018, but that concern did not affect the plaintiff’s ability to undertake physical activities or to be left alone in that period. Ms Vincent was not surprised that the plaintiff had fallen on the driveway at the Mary Street property, by reference to her observations of the steepness of it. Ms Vincent knew that the plaintiff had broken his wrist but was unaware that he had done so as a result of a fall on the driveway at the Mary Street property. Ms Vincent did not accept the proposition that it would have been unsafe to leave the plaintiff alone in the period prior to June 2018.
Ms Vincent was aware that the plaintiff had some industrial deafness. She did not assess his vision, but to her observation he could mobilise without limitation arising from any visual impairment and this was consistent with him having trouble with his distance vision.
Ms Vincent opined that notwithstanding his history of falls and hearing and vision impairments, that he was functioning well prior to June 2018 when his respiratory condition became significantly worse.
Ms Vincent observed the essential tremor in the plaintiff’s right hand. She considered it had little impact on his functional abilities compared to the level of breathlessness that she observed him to experience after he had greeted her at the door and walked to the kitchen, where he took a seat at the kitchen table. She did not consider that the plaintiff needed any assistance as a result of his essential tremor. Ms Vincent did not consider an earlier history (10 years prior) of his essential tremor getting worse to be significant, because it was not impacting his functional capacity when she assessed him.

Ms Vincent did not accept that she had paid insufficient attention to the content of the YFP clinical notes. She gave evidence that the plaintiff’s pre-existing conditions all contributed to his functional capacity as at June 2018.
Ms Vincent was taken to the plaintiff’s evidence that he sleeps quite well at night, and asked if that impacted on her opinions. Ms Vincent gave evidence that she thought that the plaintiff minimised his symptoms to her in front of his wife. She thought that someone still needed to be available to the plaintiff at night if he needed assistance and to minimise the risk of him from falling.
Ms Vincent was not surprised that the plaintiff was still trying to do some woodwork or that he was spending time in the shed. That was consistent with her assessment of him on the ECOG scale and necessary for him to maintain some quality of life. She thought that what he was now doing was probably vastly different to what he has done in the past.
Ms Vincent did not accept the proposition that any differences in the evidence and the history given to her could not be explained by the plaintiff’s stoicism. Ms Vincent stated that her assessment was based on an objective assessment of functional markers and her understanding of the trajectory of the plaintiff’s condition. She did not consider the plaintiff’s or Mrs Boland’s subjective view, about the plaintiff’s falls, to be particularly significant. She considered the plaintiff to be at the risk of falling by reference to his respiratory condition. Ms Vincent accepted that Mrs Boland may have held the view prior to June 2018 that the plaintiff needed to be supervised because he might fall, but that did not coincide with Ms Vincent’s expert opinion.
The defendant’s challenges to Ms Vincent’s evidence were as to her analysis of the plaintiff’s medical records and the methodology that she adopted in forming her opinion as to the need for care from June 2018 until the time when the plaintiff becomes entirely dependent, which I deal with below. Overall, Ms Vincent answered questions in cross-examination thoughtfully, consistently and by reference to her expertise. I am satisfied that she was trying to do her best to assist the Tribunal and that her evidence should be accepted.

Consideration

Assessment of Damages – General Principles

In an action for personal injury, damages are awarded to a successful plaintiff by the payment of a sum of money to compensate them for the injuries caused. The general compensatory principle of damages has three elements, outlined in Todorovic v Waller (1981) 150 CLR 402 at 412:

In the first place, a plaintiff who has been injured by the negligence of the defendant should be awarded such a sum of money as will, as nearly as possible, put him in the same position as if he had not sustained the injuries. Secondly, damages for one cause of action must be recovered once and for ever, and (in the absence of any statutory exception) must be awarded as a lump sum; the Court cannot order a defendant to make periodic payments to the plaintiff. Thirdly, the Court has no concern with the manner in which the plaintiff uses the sum awarded to him; the plaintiff is free to do what he likes with it.

The fundamental aim in the compensatory principle is to put the party affected in, as far as possible, the position that they would have been had the tort not been committed: Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 at 39 and Harriton v Stephens (2004) 59 NSWLR 694 at [7]–[8] per Spigelman CJ.
Where the defendant alleges that the plaintiff would have suffered disability because of a pre-existing condition, even if the compensable injury had not occurred, the evidentiary burden rests on the defendant to establish what the effect of the pre-existing condition would have been: Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164.
The nature of the pre-existing condition, its probable effects, the relationship it has to the ultimate state and any disability, and the time when these effects would have been seen without the tort, must be established with some reasonable measure of precision but not to a standard of near perfection: Expokin Pty Ltd trading as Festival IGA Supermarket and Graham [2000] NSWCA 267 at [50] per Santow AJA. If the disabilities of the plaintiff can be disentangled and one or more traced to a cause in which the tort played no part, it is the defendant who must do the disentangling: Watts v Rake at 160 per Dixon J. In this context, the principles stated in Malec v JC Hutton Pty Limited (1990) 169 CLR 638 may need to be taken into account so that consideration may need to be given as to whether the defendant has established that there was a substantial chance that the plaintiff would have been affected by a pre-existing condition: Seltsam Pty Ltd v Ghaleb (2005) NSWCA 208 per Ipp JA (Mason P agreeing).

Findings of fact from the evidence as to the plaintiff’s level of disability from his pre-existing conditions as at June 2018

The defendant’s primary contention, set in [54] above, was that the plaintiff’s medical records established that prior to the onset of serious symptoms from his asbestos-related condition in June 2018 that he was significantly disabled as a result of pre-existing conditions and that he needed substantial care to be provided to him, in that he could not have lived alone or could not be left at home alone prior to that time because either of those scenarios would have posed a risk to his safety.
Having considered all of the evidence, I am satisfied that the defendant’s primary contention should be rejected for the reasons that follow.
First, I accept Dr Heiner’s evidence that there was no support in the plaintiff’s medical records to suggest that the plaintiff suffered a significant head injury in the motor vehicle accident. I am satisfied on the evidence in the medical records that the plaintiff suffered some pain from broken ribs sustained in the motor vehicle accident, together with symptoms of anxiety and depression. He appeared to Dr Burke to be much better after he had been taking an anti-depressant for a few months.
Second, reports of the severity of the plaintiff’s essential tremor in the medical records varied over time. His last specific complaint about his essential tremor was in April 2013 when an occupational therapy assessment was suggested, but there was no evidence that it was ever carried out. The plaintiff was treated with medications to reduce the effects of the essential tremor to some effect. He was also seen by neurologists, but there was no evidence of a neurological opinion concerning the prognosis of his essential tremor. I accept Dr Heiner’s evidence that an essential tremor can be exacerbated by illness and that, in the absence of Parkinson’s Disease, an essential tremor does not lead to serious pathology. A diagnosis of Parkinson’s Disease was excluded by Dr Burke and Dr Heiner could not detect any signs of it in his examination of the plaintiff. There is no expert evidence in this case that the plaintiff’s unsteadiness on his feet, at any time, was linked to increased symptoms of the essential tremor. When the plaintiff was seen by Dr Heiner and Ms Vincent his essential tremor did not appear to be causing him any significant disability.
Third, I am satisfied that the plaintiff’s history of falls occurring prior to June 2018 do not justify the conclusion that he had a propensity to fall creating a need for him to be closely supervised. I accept the evidence of Dr Heiner and Ms Vincent that the plaintiff’s history given in December 2018 of three or four falls per year for the last three years was not significant for a person of the plaintiff’s age. The plaintiff’s medical experts suggested that there was no common cause for the falls, which would be the most important thing to consider. I am satisfied that most of the falls prior to June 2018 were caused by or contributed to by the topography of the Mary Street property. This is supported by the plaintiff’s history given to Dr Zanuso in April 2015 that most of his falls were caused by walking downhill, so he had stopped doing that. I am satisfied that the fall in the kitchen on 24 September 2016 occurred after the plaintiff had been exerting himself in the heat and that it was not caused by or contributed to by any lack of co-ordination on the part of the plaintiff. It cannot be ruled out that the fall in the kitchen was caused by or contributed to by his asbestos-related condition, but this is something that I do not need to decide.
Further, the evidence of the plaintiff and Mrs Boland was that he continued to do the mowing and some gardening until they engaged commercial services in about June 2018. This position was also reflected in the history given to Dr Koduri. I accept Ms Vincent’s evidence that those activities require balance and it is unlikely that the plaintiff could have performed them, if in fact he was generally unsteady on his feet.
Fourth, I am satisfied that in the period of about June 2018 to December 2018 that the plaintiff’s asbestos-related condition had deteriorated to the extent that it caused him to be unsteady on his feet and at a substantial risk of falling and injuring himself. When Ms Vincent examined the plaintiff on 19 March 2019 she observed him to be very short of breath on minimal exertion, including in conversation and after walking short distances. [19] He appeared to be unsteady on his feet, had poor balance and was reliant on the furniture to support himself while negotiating his way around the house. The plaintiff told Ms Vincent that his condition had deteriorated over about the last six months. I accept the evidence of Dr Heiner and Ms Vincent that the plaintiff’s respiratory condition was so serious that it was the reason for his unsteadiness on his feet and susceptibility to falls and that it was of itself a sufficient reason for the need for him to be supervised, irrespective of the cause of the previous falls.
19. Ms Vincent was not challenged in cross-examination as to those observations.
Further, there was no history in the YFP clinical notes that could have supported an inference that the plaintiff’s condition had progressed to that level prior to June 2018. There was also no evidence that Mrs Boland was providing significant levels of care to the plaintiff prior to June 2018 when she took over the household duties that he could no longer perform as a result of his condition. Whilst it is fair to say that she was concerned that he could fall and hurt himself and that she was watching out for him, there is no evidence that she was stopping him from undertaking his usual activities or assisting him with those activities. I am satisfied that Mrs Boland had a genuine concern for the plaintiff, but it did not create a need for care to be provided to the plaintiff.
In conclusion, I am not satisfied that defendant has discharged its onus to prove that the plaintiff’s pre-existing conditions had any effect on the plaintiff’s state of disability after June 2018 or that they were likely to play any part in his condition at a finite time in the future.

Issue 1 – General Damages

Relevant principles

General damages includes a number of heads of damage, including damages for pain and suffering, loss of amenities of life, the loss of enjoyment of life and a reduction in life expectancy due to the damage caused by the tort. Included in pain and suffering is the actual suffering and mental distress caused by the injury: Wickham v Treloar (1960) 77 WN (NSW) 350. The assessment for pain and suffering and loss of amenities of life is concerned with the subjective feelings of the plaintiff and not a comparison of like cases: Skelton v Collins (1966) 115 CLR 94 and Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118. Loss of amenities of life is concerned with the ‘deprivation of the ability to participate in normal activities and thus enjoy life to the full’: Teubner v Humble (1963) 108 CLR 491 at 506 per Windeyer J. The amount of damages must be fair and reasonable compensation for the injuries received and disabilities caused: Planet Fisheries at 125.

Determination

The plaintiff suffers from ARPD and asbestosis. ARPD is a term that encompasses a number of conditions and the plaintiff suffers from a number of them including, rounded atelectasis, pleural thickening, pleural plaques and recurring pleural effusions.
These conditions have caused the plaintiff to suffer from shortness of breath on exertion and also on occasions at rest, a persistent cough that occurs in episodes and chest pain. The plaintiff does not have any co-morbidities that are contributing to these symptoms and they are entirely attributable to his asbestos-related condition. His symptoms have been present since 1999 and have worsened over time. There are multiple references in the plaintiff’s medical records to those symptoms occurring on a regular basis over the years following their onset. The plaintiff has been unable to carry out his ADL since about June 2018 when he became progressively reliant on his wife for care. His need for care has increased to the extent that since about May 2019 he is very disabled and reliant on his wife to provide care or to be available to him to assist him or to ensure for his safety. The plaintiff’s condition will continue to deteriorate until he is bedridden and entirely reliant on others for care. He is likely to die from right-sided heart failure or pneumonia.
It was common ground that the plaintiff will die in the next six to 12 months. The plaintiff’s life expectancy has been shortened by about six years.
The plaintiff has enjoyed a loving marriage for over 54 years. They are presently separated from their family for a variety of reasons, including in the past 18 months as a result of the plaintiff’s condition.
The plaintiff’s quality of life is all but gone. His exercise tolerance is extremely limited and he sleeps for most of the day. He can no longer pursue his interest in gardening, woodworking and travel. He is no longer independent in caring for himself and is upset by the burden that his condition is placing on Mrs Boland.
He has undergone surgery on three occasions to treat the recurring pleural effusions. He described the latter two procedures as being particularly uncomfortable and involving considerable pain. As a result of complications in the last pleurodesis, further surgical intervention is unlikely.
This is a unique case. The Tribunal is often required to assess damages for progressive conditions into the future. In this case, a lot of the plaintiff’s symptoms have been present for a long time and his condition has already deteriorated to a significant extent, but there is more to come until he dies from his condition.
The plaintiff submitted that the appropriate award for general damages was $390,000 and the defendant submitted that it was $200,000.
On my assessment, the appropriate award for general damages is $350,000.

Issue 2 – Interest on General Damages

Relevant principles

Interest on damages for past general damages is calculated at the rate which represents the difference between the prevailing interest rate for a secure investment and the rate of inflation: MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657. The assessment of interest involves a notional division of general damages into past and future general damages and the application of 2% per annum for the whole of the period from injury to trial. There is always the discretion as to whether to award interest and if so, from when. The discretion must be judicially exercised.
In Marsland v Andjelic (No 2) (1993) 32 NSWLR 649 at 652 per Kirby P and Meagher JA (cited with approval in Roads and Traffic Authority v Cremona [2001] NSWCA 338 at 148 per Sheller JA, Priestley JA and Stein JA agreeing) it was said:

… it is difficult to see why a successful plaintiff has not got almost a vested right to an award of interest, so that circumstances have to be indeed exceptional before he or she can be deprived of any of it on a discretionary ground.

Determination

The plaintiff first suffered serious symptoms of ARPD requiring surgery in or about early 1999 and he has continued to suffer symptoms on a regular basis since that time. His condition became significantly worse in about June 2018. On the evidence, most of his pain and suffering has occurred in the past.
I would allow interest on $250,000 at the rate of 2% per annum for 21 years. This results in an award of $105,000.

Issue 3 – Past and Future Gratuitous Services provided to the Plaintiff

Relevant principles

A plaintiff may recover for gratuitous domestic services, both past and future rendered necessary as a result of the injury: Griffiths v Kerkemeyer (1977) 139 CLR 161 at 183 and Van Gervan v Fenton (1992) 175 CLR 327. Damages are generally to be calculated by reference to the market costs of the services provided and are not to be reduced by invoking notions of marital or familial obligations to provide the services free of charge or at less than market rates: Van Gervan at 335. Where the defendant’s tort creates a need for services to be provided to the plaintiff, the plaintiff is entitled to elect to have them performed gratuitously or to pay for similar services: Van Gervan at 338.
Damages can include compensation for the provision of passive care, which includes forms of protective attention, such as constant supervision and the availability to step in, in the case of an emergency: Van Gervan and Amaca Pty Ltd v Raines [2018] NSWCA 216 at [67]-[70] and [160]-[163].
In some cases the market costs may be too high to be the reasonable value of the services: Van Gervan at 333. The service provided must also be reasonably required: Griffiths at 164 per Gibbs J.

Determination

It was common ground that the plaintiff required care as a result of his asbestos-related condition from June 2018 onwards.
For the reasons given, I have rejected the defendant’s primary contention that the need for any of the care was attributable to the plaintiff’s existing medical conditions.
The defendant contended that Ms Vincent’s evidence should not be accepted because she did not undertake her own calculation of the hours of care required by the plaintiff in the past, but merely accepted Mrs Boland’s estimates as reasonable.
I do not accept the defendant’s argument for the reasons that follow.
The argument oversimplifies Ms Vincent’s evidence. Ms Vincent assessed the plaintiff’s position by reference to his capacity, what Mrs Boland said that she did for him, Dr Heiner’s opinion and the ECOG and KPS which she described as objective measures as to how disease affects a person’s ability to perform their ADL, before concluding that Mrs Boland’s estimates were reasonable. Ms Vincent’s reliance on the ECOG and KPS demonstrated a cross-checking of her opinion, that Mrs Boland’s estimates were reasonable, by reference to objective sources of population data. In my view, this gave weight to her opinion that could not have been afforded to it, if it had merely reflected her subjective opinion on how long the tasks performed by Mrs Boland should have taken.
Mrs Boland’s evidence as to her estimates of the amount of time she spent each day caring for the plaintiff since June 2018 were not challenged in cross-examination.
Ms Vincent did assess the number of hours required to do the things that the plaintiff could no longer do around the house. I infer that she did so because Mrs Boland could not estimate how long those tasks were taking her to complete and/or that some of them were being left unperformed.
Taking into consideration all of the evidence about the plaintiff’s capacity from June 2018 onwards, I am satisfied that Ms Vincent’s evidence as to the quantum of care provided to the plaintiff since June 2018 should be accepted.

The necessity for care in the future was not really in dispute. The common position of the parties is that the plaintiff will die from his asbestos-related condition or complications from it. The description of the likely decline in his condition described in the evidence of Dr Heiner and Ms Vincent was not challenged in cross-examination.

Past Gratuitous Services provided to the Plaintiff

Ms Vincent’s evidence was that the plaintiff required eight to 10 hours of assistance per day for the period 1 June 2018 to 17 May 2019 (50 weeks). I am satisfied that it is reasonable to allow eight hours per day for that period, which would be provided at commercial rates at a cost of $3,128 per week, resulting in an award for this period of $156,400.
In addition, for that period the plaintiff is entitled to an award for the commercial cost of tasks that he could no longer perform as a result of his asbestos-related condition, which would be provided at commercial rates at a cost of $366 per week [20] , resulting in an award for this period of $18,300.
20. Rounded up to the nearest dollar.
From 18 May 2019 to 6 April 2020 (46 weeks) [21] , Ms Vincent’s evidence was that the plaintiff needed assistance for 24 hours per day, being 16 hours of active assistance and eight hours of inactive overnight care. I am satisfied that it is reasonable to allow for those hours of care which would be provided at commercial rates at a cost of $8,136 per week, resulting in an award for this period of $374,256.
21. The date of trial.
In addition, for that period the plaintiff is entitled to an award for the commercial cost of tasks that he could no longer perform as a result of his asbestos-related condition. In the new house, Ms Vincent included two hours per day of additional gardening to create and maintain new gardens. In my view, at least half of that work would have been done by Mrs Boland and it is not reasonable to allocate all of that work to the plaintiff. I would reduce the commercial cost of that work estimated by Ms Vincent to be $780 per week [22] to $500 per week, resulting in an award for this period of $23,000.
22. Rounded down to the nearest dollar.
The total award for past gratuitous services to be provided to the plaintiff is $571,956.

Future Gratuitous Services to be provided to the Plaintiff

It was common ground that the plaintiff will die within six to 12 months. It is reasonable to adopt the midpoint of nine months (39 weeks) and I find that the plaintiff will continue to require care for that period.
The plaintiff’s condition has not progressed to the point that he is bedridden. I am satisfied that he will probably get to that point in about three months’ time.
Ms Vincent gave evidence that the commercial cost of providing care in the community for that stage of his disease would be $9,384.
In my view, it is reasonable to allow the present level of care for the future, to take into account that the plaintiff will probably be hospitalised for some of the nine months and will not then be receiving the same level of gratuitous services and because he is to be compensated for the cost of hospital admissions and palliative nursing care in the future.
The award for future gratuitous services provided to the plaintiff amounts to $8,136 per week for 39 weeks, resulting in an award for this period of $317,304.
In addition, the plaintiff is entitled to an award for the commercial cost of tasks that he could no longer perform as a result of his asbestos-related condition, which I would continue to allow at the cost of $500 per week, resulting in an award for this period of $19,500.
The total award for future gratuitous services to be provided to the plaintiff is $336,804.

Issue 4 – Future out-of-pocket expenses

Relevant principles

Medical, hospital, nursing and other treatment expenses, as well as pharmaceutical costs and incidental costs, are recoverable subject to the compensatory principle. The costs of therapeutic aids and appliances are recoverable together with the provision of facilities to provide for the reasonable needs of the plaintiff. In Sharman v Evans (1977) 138 CLR 563 at 573 the High Court adopted a comparative approach to this issue weighing the costs of the services against the health benefits to the plaintiff. Provision in damages should be made for reasonable requirements and not “ideal requirements”: Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 661 per Barwick CJ.
The necessary cost of alterations or additions to an existing home are recoverable if reasonably required or reasonably likely to be required: Marsland v Andjelic (1993) 31 NSWLR 162 at 176. No reduction is to be allowed for increased capital value arising from such expenditure. Marsland at 176.
Damages are to be awarded as fair compensation and past and future expenses should be allowed in response to needs created by the injury. The list of recoverable items is not closed so long, as they are not too remote: Teubner at 507 per Windeyer J.

Determination

It was common ground that the plaintiff’s life expectancy is between six and 12 months from now. The plaintiff’s submissions adopted the midpoint of nine months which, considering that the plaintiff is to be compensated for money that he will need to expend on his care, is a reasonable position. If he lives for longer than nine months, he will end up being undercompensated. The plaintiff has not yet demonstrated a need for the hire of a hospital style bed, pressure relieving mattress and hoist equipment, but in my view, the need for those items will eventuate in the next three months and accordingly it is appropriate to allow damages for those items for six months.

Equipment and Home Modifications

Ms Vincent outlined a number of items of equipment and modifications to the new house that would assist the plaintiff to be cared for at home. Ms Vincent’s evidence also established the plaintiff’s need for those items. For example, the plaintiff has been provided with a four-wheeled walker and needs ramps installed at the entrances to the house to negotiate the small threshold steps with either the four-wheeled walker or a wheelchair, which he is likely to need in the future. I am also satisfied that he has a reasonable need for the provision of the concrete path to the shed to allow him to have some quality of life by involving himself in his woodwork hobby, even if he is severely limited in his ability to do any woodwork.
The plaintiff has a need for the ensuite bathroom of the new house to be modified because the existing lay out of it makes it too small to accommodate a shower chair and/or a mobile shower commode and because the floor tiles are particularly slippery. This requires the removal of existing fixtures and the installation of a floor waste. I am satisfied that the need for the bathroom modifications are reasonable because the plaintiff’s respiratory condition poses a significant risk of him falling and that risk is significantly increased when he is required to manoeuvre in the bathroom in its current configuration.
There was no challenge to Ms Vincent’s evidence on these matters in cross-examination. The defendant submitted, however, that the plaintiff’s claim for these items should fail because there was no evidence that he would purchase those items, if he had the ability to do so.
I do not think that the absence of that evidence is fatal to the plaintiff’s claims under this head of damage. The plaintiff’s case has established a need for the equipment and/or the modifications and that need was caused by the defendant’s tort. The plaintiff is entitled to damages that would put himself in the position he would have been but for the tort, in so far as money can achieve that result.
In any event, the evidence of the plaintiff and Mrs Boland establishes that the plaintiff would spend money to make his life easier or to ease the burden on Mrs Boland, if he was in a position to do so. I infer that the plaintiff’s financial position would also prevent him from purchasing equipment or paying for modifications to the house that would assist with his care.
I would allow the following items as costed by Ms Vincent, set out in the following table.

Equipment/Modification

Cost

Ramps to entrances

$165.00

Bathroom modifications

$20,000.00

Concrete path to the shed

$4,000.00

Dining room chair with armrest

$265.00

Shower Chair

$180.00

Urinal bottle and holder [23]

$80.00

Over the bed table

$128.00

Wheelchair

$400.00

Mobile Shower Commode

$830.00

Sheepskin Medical Overlay

$260.00

Bed pan

$36.00

Incontinence aids and hygiene products

$600.00

Towels and linen

$250.00

Hire of hospital style bed, pressure
relieving mattress and hoist equipment for
6 months @ $174 per week

$4,524.00

Total

$31,718.00

23. Rounded up to the nearest dollar.

Future Medical Costs

The plaintiff will require significant medical treatment for the rest of his life and that any damages awarded must account for the reasonable cost of that treatment.
In his first report, Dr Heiner set out a schedule of medical costs that he expected that the plaintiff would incur. It is clear from the evidence that the plaintiff has not incurred some of the costs envisaged by Dr Heiner and so it is necessary to approach Dr Heiner’s estimates with some caution.
Dr Heiner estimated that the plaintiff would require regular consultations with his general practitioner at a cost of $120 per month. It is reasonable to allow this claim for nine months, being a total of $1,080.
I would allow for the cost of two further CT scans of the chest at a cost of $1,000 per scan, being a total of $2,000.
It is reasonable to allow for the plaintiff’s hospitalisation to treat infections or other complications. Dr Heiner provided for 21 days of hospitalisation per year, when in fact the plaintiff has not been hospitalised since Dr Heiner’s first report. In the circumstances, I would allow for 10 days in total in hospital, including end-stage care. The costs incurred will include hospital charges at the rate of $1,000 per day, attendances by a respiratory specialist at the rate of $150 per day, attendances by an infectious disease specialist at the rate of $150 every second day and an allowance for miscellaneous tests and medications in the sum of $2,000. The total allowance for these hospital admissions is $13,900.
Dr Heiner provided for the provision of home oxygen at the cost of $800 per month. The plaintiff has not yet been prescribed home oxygen, but I am satisfied that it will be necessary in three months’ time and the claim should be allowed for six months at a total cost of $4,800.
Dr Heiner allowed for pain relief medications at the cost of $150 per month for a period of six months in addition to a cushion for various other medical costs such as nutritional and psychological advice in the sum of $5,000. For these items, having regard to the actual costs incurred to date, it is reasonable to allow a total amount of $2,900.
Dr Heiner also provided for the attendance of palliative care nurses at the plaintiff’s home to provide care that his wife was not qualified to provide, at a cost of $10,000. There was no cross-examination on this allowance as to how often it was expected that the nurses would attend, or how long they would attend for. On a similar line, Ms Vincent allowed the sum of $10,000 for the provision of end-of-life care in hospital or a palliative care hospice. I will allow the total sum of $10,000 to cover these items because I think they overlap at least to some extent.
The appropriate award for future medical costs is $34,680.

Conclusion

The appropriate award for future out-of-pocket expenses is $66,398.

Assessment of Damages

In addition to the damages calculated above, it is necessary to refer to the other heads of damage that are established or were not significantly controversial.

Loss of expectation of life

The plaintiff’s condition has shortened his life by about six years. The plaintiff is entitled to damages for loss of expectation of life in the sum of $6,000.

Past out-of-pocket expenses

The plaintiff is required to repay Medicare the sum of $1,500. The plaintiff tendered pharmaceutical receipts in the sum of $98. The plaintiff also claimed the cost of lawn mowing from 1 June 2018 to the present in the sum of $1,940.
The appropriate award for past out-of-pocket expenses is $3,538.

Interest on past gratuitous services provided to the plaintiff

Interest is usually allowed at half of the pre-judgment interest rate for the period to account for the fact that interest runs on weekly amounts over time: Grincelis v House (2000) 201 CLR 321. The relevant pre-judgment interest rates for the relevant period were 5.5% from 1 June 2018 until 1 July 2019 and thereafter 5.25%.
The appropriate award for interest on past gratuitous services is calculated at half of 5.5% for the period of 13 months (1 June 2018 to 1 July 2019) amounting to an award of $17,040 and half of 5.25% for 10 months (1 July 2019 to 1 April 2020) amounting to an award of $12,512. [24]
24. Both figures rounded up to the nearest dollar.
The total award of interest on past gratuitous services is $29,522.

Conclusion

The final assessment of damages is set out in the following table.

General Damages

$350,000.00

Interest on General Damages

$105,000.00

Loss of Expectation of Life

$6,000.00

Past Out-of-pocket Expenses

$3,538.00

Future Out-of-pocket Expenses

$66,398.00

Past Gratuitous Care

$571,956.00

Interest on Past Gratuitous Care

$29,522.00

Future Gratuitous Care

$336,804.00

Total

$1,469,218.00

Orders

The orders I make are as follows:

Verdict and judgment for the plaintiff in the sum of $1,469,218.00.

The defendant is to pay the plaintiff’s costs of the proceedings on the ordinary basis.

I direct that the defendant and the cross-defendants bring in short minutes of order within 7 days to give effect to their agreement on apportionment.

I grant liberty to the parties to approach my Associate to list the matter if a different costs order is sought.

**********

Endnotes

ability to balance whilst in motion or when switching between positions.

Amendments

08 May 2020 - adjusted table columns

Decision last updated: 08 May 2020

Medium Neutral Citation:	Boland v Amaca Pty Ltd [2020] NSWDDT 4
Hearing dates:	6 and 7 April 2020
Date of orders:	04 May 2020
Decision date:	04 May 2020
Before:	Scotting J
Decision:	(1) Verdict and judgment for the plaintiff in the sum of $1,469,218.00. (2) The defendant is to pay the plaintiff’s costs of the proceedings on the ordinary basis. (3) I direct that the defendant and the cross-defendants bring in short minutes of order within 7 days to give effect their agreement on apportionment. (4) I grant liberty to the parties to approach my Associate to list the matter if a different costs order is sought.
Catchwords:	DUST DISEASES – damages – assessment of damages on common law principles - asbestosis and asbestos-related pleural disease (ARPD) – general damages – interest on general damages – damages for gratuitous services – future out-of-pocket expenses
Legislation Cited:	Civil Liability Act 2003 (Qld)
Cases Cited:	Amaca Pty Ltd v Raines [2018] NSWCA 216 Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 Expokin Pty Ltd trading as Festival IGA Supermarket v Graham [2000] NSWCA 267 Griffiths v Kerkemeyer (1977) 139 CLR 161 Grincelis v House (2000) 201 CLR 321 Harriton v Stephens (2004) 59 NSW LR 694 Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 Malec v JC Hutton Pty Limited (1990) 169 CLR 638 Marsland v Andjelic [No 2] (1993) 32 NSWLR 649 Marsland v Andjelic (1993) 31 NSWLR 162 MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 Purkess v Crittenden (1965) 114 CLR 164 Roads and Traffic Authority v Cremona [2001] NSWCA 338 Seltsam Pty Ltd v Ghaleb (2005) NSWCA 208 Sharman v Evans (1977) 138 CLR 563 Skelton v Collins (1966) 115 CLR 94 Teubner v Humble (1963) 108 CLR 491 Van Gervan v Fenton (1992) 175 CLR 327 Watts v Rake (1960) 108 CLR 158 Wickham v Treloar (1960) 77 WN (NSW) 350 Todorovic v Waller (1981) 150 CLR 402
Category:	Principal judgment
Parties:	Peter Boland (Plaintiff) Amaca Pty Ltd (Defendant/Cross Claimant) State of Queensland (First Cross Defendant) State of Victoria (Second Cross Defendant) J Scott Investments Pty Ltd (formerly J Scott Builders Pty Ltd) (Third Cross Defendant) Queensland Concrete & General Construction Co (Fourth Cross Defendant) T F Woollam & Son Pty Ltd (Fifth Cross Defendant)
Representation:	Counsel: S Tzouganatos (Plaintiff) J Sheller SC (Defendant/Cross Claimant) Solicitors: vbr Compensation Lawyers (Plaintiff) Holman Webb Lawyers (Defendant/Cross Claimant) Thompson Cooper Lawyers (First Cross Defendant) Lander & Rogers (Second Cross Defendant) DWF (Australia) (Third, Fourth and Fifth Cross Defendants)
File Number(s):	126 of 2019
Publication restriction:	None

Equipment/Modification	Cost
Ramps to entrances	$165.00
Bathroom modifications	$20,000.00
Concrete path to the shed	$4,000.00
Dining room chair with armrest	$265.00
Shower Chair	$180.00
Urinal bottle and holder [23]	$80.00
Over the bed table	$128.00
Wheelchair	$400.00
Mobile Shower Commode	$830.00
Sheepskin Medical Overlay	$260.00
Bed pan	$36.00
Incontinence aids and hygiene products	$600.00
Towels and linen	$250.00
Hire of hospital style bed, pressure relieving mattress and hoist equipment for 6 months @ $174 per week	$4,524.00
Total	$31,718.00

General Damages	$350,000.00
Interest on General Damages	$105,000.00
Loss of Expectation of Life	$6,000.00
Past Out-of-pocket Expenses	$3,538.00
Future Out-of-pocket Expenses	$66,398.00
Past Gratuitous Care	$571,956.00
Interest on Past Gratuitous Care	$29,522.00
Future Gratuitous Care	$336,804.00
Total	$1,469,218.00