Bradley v Amaca Pty Ltd

[2024] NSWDDT 1

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:

Bradley v Amaca Pty Ltd [2024] NSWDDT 1

Hearing dates:

5 and 6 February 2024

Date of orders:

9 February 2024

Decision date:

09 February 2024

Before:

Strathdee J

Decision:

(1) Judgment for the plaintiff in the sum of $832,402.12.

(2) The defendant is to pay the plaintiff’s costs as agreed or assessed. If any alternate costs orders if sought, the parties must approach my Tipstaff within 7 days.

Catchwords:

DUST DISEASES – mesothelioma – prognosis – length of prognosis

DAMAGES – assessment of damages – general damages – interest on general damages – loss of expectation of life – future care and assistance – past and future out of pocket expenses – future medical expenses

TORTS – vicissitudes

Legislation Cited:

Law Reform (Miscellaneous Provisions) Act 1946 (NSW)

Cases Cited:

ANZ v Haq [2016] NSWCA 93

Armitage v State of New South Wales [2023] NSWDDT 3

Avopiling Pty Ltd v Bosevski [2018] NSWCA 146

Brennan v James Hardie & Coy Pty Limited [2001] NSWDDT 2

Bresatz v Przibilla (1962) 108 CLR 541

Chulcough v Holley (1968) 41 ALJR 336

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638

Planet Fisheries Pty Limited v La Rosa (1968) 119 CLR 118

Sullivan v Micallef; Macquarie Pathology Services Pty Limited v Micallef [1994] Aust Torts Reports 81-308

Wallaby Grip Limited v Peirce [2000] NSWCA 299

Wynn v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485

Category:

Principal judgment

Parties:

Henry John Bradley (Plaintiff)
Amaca Pty Ltd (Defendant/Cross-Claimant)
Seltsam Pty Limited (Cross-Defendant)

Representation:

Counsel:
Mr S Tzouganatos appeared for the Plaintiff
Mr I Griscti appeared for the Defendant/Cross-Claimant
Mr D Miller appeared for the Cross-Defendant

Solicitors:
vbr Lawyers (Plaintiff)
Holman Webb Lawyers (Defendant/Cross-Claimant)
Colin Biggers and Paisley (Cross-Defendant)

File Number(s):

2023/245345

JUDGMENT

Introduction

1. By Amended Statement of Claim filed 8 August 2023 the plaintiff seeks damages, interest and costs from the defendant and alleges that his mesothelioma has been caused by the inhalation of asbestos dust and fibre emanating from products, manufactured and/or supplied by Amaca Pty Ltd (‘Amaca’) whilst working as an apprentice carpenter and joiner and as a self- employed carpenter. In addition, he alleges that over a period of about 2 years, he was additionally exposed to asbestos dust and fibre manufactures and/or supplied by Amaca whilst undertaking the construction of a house on weekends.

2. By a cross-claim filed 28 September 2023 Amaca seeks contributions and/or indemnity from Seltsam Pty Ltd (‘Seltsam’) pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) for any damages that it is liable to pay the plaintiff.

3. The parties have agreed that the only issue for my determination is quantum.

4. Mr Miller who appeared for Seltsam was excused from further attendance at the conclusion of the plaintiff’s oral evidence.

Evidence

5. The plaintiff gave evidence before me on 5 February 2024. The plaintiff also called Ms Aimee Vincent (‘Ms Vincent’), Occupational Therapist, who also gave evidence before me on 5 February 2024.

6. The plaintiff tendered the following documents which were taken into evidence with no objection from the defendant:

• Plaintiff’s affidavit sworn 12 February 2024 – exhibit A

• Plaintiff’s Form 1 Statement of Particulars – exhibit B

• Report of Prof Sonja Klebe of 22 August 2024 – exhibit C

• Report of Dr Michael Jones of 20 August 2024 – exhibit D

• Report of Dr Michael Jones of 21 August 2024 – exhibit E

• Report of Dr Robert Edwards of 5 September 2024 – exhibit F

• Report of Aimee Vincent of 8 September 2024 – exhibit G

• Report of Aimee Vincent of 30 January 2024 – exhibit H

• Report of Dr Robert Edwards of 20 December 2023 – exhibit J

• Report of Dr Neha Aggarwal of 11 December 2023 – exhibit K

• Bundle of medical records (pages 204-243 of Plaintiff’s Tender Bundle) – exhibit L

• Bupa print out – exhibit M

• Colour photograph of the plaintiff and a very large Atlantic Salmon – exhibit N

7. The defendant did not go into evidence.

8. On the basis of the evidence before me and the concession by the defendant that assessment of damages is the only issue in the proceedings, the plaintiff is entitled to a judgment against the defendant, as it was the defendant’s negligence that caused his mesothelioma.

Oral evidence

The plaintiff

9. The plaintiff believes that he was born on 31 October 1944 in Canberra and is currently aged 79 years.

10. The plaintiff endured a very difficult childhood, and as a consequence he was determined to work hard, but to live alone such was the trauma of his childhood. He has never married and presently lives in a room at the Treetops Motel in Ainsley in the Australian Capital Territory.

11. Prior to his illness the plaintiff lived a very active life, and worked on the tools as a self-employed carpenter until December 2022, when his shortness of breath became a lot worse than it had been since September 2022. Whilst he had a number of health related conditions prior to the onset of this disease, he had them under control on the recommendation of his doctors and they had never stopped him working or affected his capacity to work (T8.27-50; T9.1).

12. Such is the measure and honesty of the plaintiff, he does not suggest that he ceased work as a consequence of what ultimately became his disease, but that he was at that time contemplating retirement and did so. He was planning to go on a cruise and continue his past time of fishing. He makes no claim for economic loss.

13. Prior to the onset of shortness of breath in December 2022, the plaintiff had led a very active life, having been the president of the Canberra Fishing Club for 15 years, and he enjoyed travelling. He was a happy man. He lived independently – an aspect of his life that has always been and remains very important to him. He enjoyed the company of his mates at the Ainslie Football Club of which he had been on the Board for 30 years.

14. On 5 September 2022 the plaintiff was referred for a CT scan of his abdomen and pelvis which revealed a small right basal effusion in his lungs. He was due for a repeat gastroscopy and advised his treating gastroenterologist, Dr Vipul Aggarwal that he was very short of breath, had reduced his exercise and felt that something was not right.

15. On 12 December 2022, the plaintiff was admitted to National Capital Private Hospital due to a collapsed right lung caused by a large pleural effusion. Various scans confirmed the condition, and 3.5 litres of fluid was drained from his lung.

16. The history of the plaintiff’s diagnosis is well explained in the medical evidence and he underwent many diagnostic tests until his condition was ultimately diagnosed by Dr Ting, Respiratory Physician and Dr Divyanshu, Medical Oncologist on about 19 December 2022. He was informed by the doctors that the diagnosis was of malignant epithelioid mesothelioma which was likely caused by his exposure to asbestos in his work as a builder. At T9.6-18, the plaintiff gave the following evidence:

Mr Tzouganatos: Would you mind, sir, just, for her Honour's benefit, just describing that moment, and what happened and how you felt about it.

Mr Bradley: Well, I actually broke down when I was told, and I cried. And I thought why should that happen to me? Because I'd worked hard all my life, and I was just in the .......... on my own, and I did because I'd worked as hard as a black fellah on that, pardon me, but I just broke down, and I rang me I rang me brother up and told him.

Mr Tzouganatos: That must have been a very hard conversation.

Mr Bradley: Yes. Well, he was in Bathurst, and I left it to him to tell the rest of the family.

Mr Tzouganatos: How have you been going, in terms of the mental side of things, since that diagnosis, sir.

Mr Bradley: I'm I'm very depressed about it, really. I'm very rundown. It has affected me.

Mr Tzouganatos: Can you ever get that moment out of your brain.

Mr Bradley: I don't think so.

Mr Tzouganatos: How do you go at night when you're trying to fall asleep? Does it ever come into your mind, that diagnosis.

Mr Bradley: No, I don't. But I - I do have some medication now to - to help me sleep and to stop my - make me sleep because of this numbness that I've got in my fingers and that.

17. He was discharged from National Capital Private Hospital on 22 December 2022 and started immunotherapy treatment of Ipilimumab and Nivolumab at the Canberra Hospital on 11 January 2023. He has had 11 immunotherapy treatments between January 2023 and August 2023. His most recent CT scans suggest that his condition is stable. The plaintiff intends to continue the immunotherapy treatment, with regular follow-ups and scans to monitor his progress.

18. In about August 2023 the plaintiff developed new symptoms of pain, numbness and weakness in his hands which was affecting his sleep as he was being woken by the pain, and he was increasingly fatigued. The plaintiff gave the following evidence (at T9.19-26):

Mr Tzouganatos: Could you just tell us about the numbness in your fingers? I think you are showing the judge your fingers. Just tell us about that.

Mr Bradley: Yes. I do have a lot of numbness coming across here which developed the middle of last year which seem to dwell, and then I get a pain up here, and the - I have had some old bone injuries, but it has come from the treatment. The doctor said no. Then she did say yes, it was coming from the treatment I was getting. Yes.

Mr Tzouganatos: That is the immunotherapy you are talking about.

Mr Bradley: And I - yes, and I do even have problems now picking up my cup of tea. It's - I just - seems I've got to put my hand under to hold it still.

19. He was informed by Dr Aggarwal that these new symptoms were a side effect of the immunotherapy.

20. The plaintiff underwent further scans in the last few months of 2023 which indicates that his disease has not progressed. Nonetheless the plaintiff continues with significant pain symptoms – pain and numbness in his hands, fatigue and shortness of breath, and is now also experiencing nausea.

21. He can do light domestic tasks, but needs to hold onto handrails when on stairs and only makes very simple food for himself in the motel room. He has been a very independent and private man, both of which have been stripped from him by his disease, which causes him to spend a lot of time in the motel resting and feeling very unwell.

22. The plaintiff struggles emotionally, experiencing sadness, depression and anxiety as a consequence of his diagnosis, and not being able to fulfil his retirement plans. His daily activities are now challenging due to his physical limitations, which affect his independence and quality of life. The plaintiff spends a lot of time ruminating, lying awake at night, wondering about what his retirement may have been had he not been diagnosed with a terminal condition.

23. Having lived on his own all his life, the plaintiff sold his house about 4 years ago with a view to downsizing, as his shortness of breath restricted his ability to maintain his large home. He has been, and continues to search for a granny flat type accommodation which he believed that he could maintain given his current symptoms.

24. The plaintiff has not found such a property, and lives in a motel with a small kitchen area, double bed and small ensuite. The plaintiff is adamant that he does not want to go into a retirement village. He gave the following evidence (at T10.33-46):

Mr Tzouganatos: Incidentally, do you have a view about the retirement village.

Mr Bradley: Well, I don't like the idea of going to the retirement.

Mr Tzouganatos: Why is that.

Mr Bradley: Not the way the life they live there. I'd like to have my little backyard, and I've always had a backyard. I've always had a big vegetable garden, and I've always had my background where I've had tools to work, but I know I can't do that now. I'd still like to have a little place, a little veggie garden, and a place where I've got my own veranda, and sit down and enjoy myself.

Mr Tzouganatos: Have you ever visited your mates in this retirement village.

Mr Bradley: Not very often. We catch up in the club. I know how they live and how they talk, but I'm not interested in that sort of life.

Mr Tzouganatos: It might be suggested to you, in this case, I do not know, maybe will not, but it might be said to you when your condition progresses, you will end up in one of those places. What do you say about that.

Mr Bradley: I hope I don't. I find that very hard to accept.

Mr Tzouganatos: In your affidavit, Mr Bradley, you say that you are well aware of what the future holds for you.

Mr Bradley: Yes, I do.

25. Unfortunately the plaintiff’s prognosis is bleak despite the immunotherapy, his life has been destroyed, with an expected suffering period exceeding three years, leading to a ‘very undignified death’ worsened by his awareness of its inevitability and imminence.

26. The plaintiff was a witness of the truth, particularly in circumstances when he was speaking of such personal and intimate matters, and being a very private and independent man. He was also a very good historian and gave his evidence in a very frank and forthright fashion. I have no hesitation at all in accepting every word that he spoke as truthful.

Aimee Vincent (Occupational Therapist)

27. Ms Vincent provided two reports in these proceedings (exhibits G and H) and gave evidence before me. Ms Vincent is eminently qualified to provide her expert opinions in this matter given her experience and training, and her evidence was that she has examined ‘in the hundreds’ of patients with mesothelioma (T24.27). Her detailed reports, and her oral evidence demonstrate a very difficult course of illness for the plaintiff, and the care and assistance that he will need, increasing over time.

28. In response to a question I asked, Ms Vincent gave the following evidence (at T26.24-31):

Her Honour: Before you start, Mr Griscti, you were just giving some very powerful evidence about how hard it is for you as a clinician to watch someone passing. I imagine they must be terrified.

Ms Vincent: Yes.

Her Honour: Fear and anxiety is a symptom of the end. Does that come in in earlier of the ECOG stages or -

Ms Vincent: It certainly can because the symptoms can exacerbate someone's anxiety. So when someone's feeling short of breath, and then potentially if they have any awareness of the progression of their disease, then it can obviously pre-empt a lot of anxiety about where they're heading, and that can get worse just with time.

29. In re-examination, she gave the following evidence (at T30.25-31):

Mr Tzouganatos: Ms Vincent, just correct me if I am wrong, you were asked some questions about practicality of Mr Bradley staying in the motel room and being provided with the care that you have set out in your reports. Have I got this right? It does not really matter where he is, whether he is in the motel, or whether he finds an apartment of the type that you said, he is going to need the care that you have set out in your reports.

Ms Vincent: Yes. Correct.

Mr Tzouganatos: And that level of care as he moves through the stages of his mesothelioma. Have I got that right.

Ms Vincent: Yes.

30. The opinions and recommendations contained in her reports and her evidence before me are not only expert, but they make sense. Her suggestions as to the future care the plaintiff will require accord with my observations of many plaintiffs that have come before the Tribunal suffering from this dreadful disease. Her comments with regard to the appropriateness of the plaintiff’s current accommodation as his condition deteriorates matches my assessment entirely. She was a most impressive witness, eminently qualified, and I accept her evidence.

Assessment of damages

General damages

31. In determining the appropriate compensation for general damages, the Tribunal must consider the plaintiff's past and future suffering, exercising judgment based on societal norms of fairness and moderation, as well as a sense of proportion: Planet Fisheries Pty Limited v La Rosa (1968) 119 CLR 118 at 124 and 125 (‘Planet Fisheries’); Wallaby Grip Limited v Peirce [2000] NSWCA 299 at [13] (‘Peirce’). This involves assessing not only the plaintiff's physical pain and the harsh reality of their impending death but also the emotional distress and grief associated with their demise. The compensation awarded should reflect the profound value of the plaintiff's life in the eyes of the community: Brennan v James Hardie & Coy Pty Limited [2001] NSWDDT 2 at [12] (Curtis J).

32. While the common law prohibits direct comparison of cases and verdicts, judicial opinions acknowledge the inevitable influence of precedent: Planet Fisheries. However, in Chulcough v Holley (1968) 41 ALJR 336 at 338 (‘Chulcough’), in a passage referred to and not disavowed in Planet Fisheries, Windeyer J said:

‘Once it is admitted that money and physical and mental incapacity for the enjoyment of a full life are in truth incommensurable, it seems to me meaningless to speak of a verdict which is out of proportion unless some monetary standard or pattern be assumed. Of course no two cases are exactly alike. Bodily harm may be similar, but the consequences for individuals vary. One award is never really a precedent for another case. But we would I think be ignoring facts if we were to say that judges when asked to consider whether a particular verdict is beyond the bounds of reason - either excessive or inadequate - are unmindful of what was done in other cases, similar or dissimilar. If we were to say that, we would, I consider deceive ourselves, as well as belie statements in judgments of high authority.’

33. Clarke JA in Sullivan v Micallef; Macquarie Pathology Services Pty Limited v Micallef [1994] Aust Torts Reports 81-308 expressed himself to be in agreement with Windeyer J in Chulcough and added:

‘Furthermore if, as Mason CJ and Deanne J said in Coyne v Citizen Finance Limited (1991) 172 CLR 211, at 221, and the majority (Mason CJ, Deanne, Dawson and Gaudron JJ) said in Carson v. John Fairfax & Sons Limited (1993) 178 CLR 44, at 57-59, it is legitimate for an appellate court concerned with an appeal against the quantum of an award in a defamation case to bear in mind 'scale of values' applied in dealing with appeals in cases of serious physical injury it must follow that such a court is not only entitled to, but is bound to do so in considering appeals of the nature of the one presently under consideration.’

34. I accept that nothing in Planet Fisheries precludes such an approach: Peirce at [17] – [18]. A trial judge is expected to draw on his or her experience in settling on the correct figure. Provided he or she does not allow himself or herself to be ‘overborne by what other minds [had] judged right and proper for other situations’ (see Planet Fisheries at 125), it is perfectly proper to have regard to other decisions. As Priestley JA, with whom Handley and Fitzgerald JJA agreed, said in Peirce:

‘The trial judge's experience undoubtedly includes direct knowledge of his own earlier decisions in personal injury cases and knowledge of cases decided by other judges in the Dust Diseases Tribunal. This knowledge, along with that knowledge of particular cases which sinks into a generalised mass in a trial lawyer's mind, would produce the judge's “general experience” (Planet Fisheries at 125) giving rise to the “general awareness” (Planet Fisheries at 125) which the High Court granted a judge making an assessment could give weight to in the form of “current general ideas of fairness and moderation” (Planet Fisheries at 125).’

35. In my view, judges, in evaluating the reasonableness of a verdict, inevitably draw on their experience, including past decisions and those of other judges, although they must guard against undue influence from previous judgments. This approach is consistent with principles outlined in previous cases and is essential for ensuring fair compensation.

35. In my decision of Armitage v State of New South Wales [2023] NSWDDT 3, I summarised the approach to the assessment of general damages at [32] – [36] as follows:

‘[32] In a tortious 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] HCA 72; (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.’

[33] The purpose of general damages is to compensate the injured person for their pain and suffering and loss of enjoyment and amenities of life that they have experienced, and when setting general damages, my task is an evaluative one. I accept the submission of the defendant that I must ensure that the damages award constitutes fair and reasonable compensation for the injury received, and every case ‘must be looked at on the footing that it is’, as it is in fact, different from every other case: CSR v Bouwhuis (1991) 7 NSWCCR 223 at [251]–[252].

[34] I accept that in determining an appropriate award of general damages, I must not directly compare verdicts or awards of general damages, however, I note that although a direct comparison with other cases is not permitted, it is appropriate when assessing general damages I ought have regard to awards made in other cases to ensure that the proposed award accords with ‘general experience’ and ‘current general ideas of fairness and moderation’: Planet Fisheries Pty Limited v La Rosa (1968)119 CLR 118 (‘Planet Fisheries’) at 125.

[35] Nonetheless, I am expected to draw on my experience in coming to the correct figure, provided that I am not ‘overborne by what other minds [had] judged right and proper for other situations’: Planet Fisheries at 125.

[36] In James Hardie & Coy Pty Limited v Newton (1977) 42 NSWLR 729 the Court of Appeal confirmed this approach. Mahoney AP observed in Sullivan v Micallef; Macquarie Pathology Services Pty Limited v Micallef [1994] Aust Torts Reports 81-308 at 61, 790, ‘There is no market price for pain.’

37. Furthermore, appellate courts, when considering appeals related to compensation, are obligated to consider the scale of values applied in similar cases, whether in defamation or serious physical injury cases. This principle allows for consistency and fairness in awarding damages across different contexts.

38. Ultimately, as the trial judge, my decision should be informed by my own experience, including knowledge of previous dust diseases cases and decisions from similar tribunals. This collective experience forms the basis for assessing what is fair and moderate in the circumstances of the case.

39. The plaintiff has had symptoms for approximately 17 months, which have increased over time. He is now significantly affected by his disease, which will progress. Dr Robert Edwards (‘Dr Edwards’), in his second report (exhibit J) opines that the plaintiff’s current prognosis from the date of that report, at two years. The plaintiff has already suffered greatly, and his terminal condition will only progress, thus his suffering will therefore increase as time goes on. It is more probable than not that the plaintiff will suffer the symptoms of his mesothelioma for approximately 3.5 years, which distinguishes these proceedings from many others.

40. However, it may be that the plaintiff will not survive the two years as opined by Dr Edwards. He may pass prior to that date. The immunotherapy treatment to which he has responded to very well to date, may mean that he will live another 3 or 4 years. Unfortunately, there is no cure for mesothelioma, of which the plaintiff is acutely aware, and whilst the plaintiff might survive for a different period of time than that proposed by Dr Edwards, he will ultimately pass as a consequence of his disease, and the end stages of his life will follow the horrid course as described by Dr Edwards and Ms Vincent inevitably at some point in time.

41. In assessing the figure for general damages, these are matters that necessarily impose upon my determination. The only evidence as to prognosis, is that of Dr Edwards, which is two years. The defendant provided no evidence of any alternate opinion. Thus, noting doctor’s expertise and experience, I accept Dr Edwards’ expert opinion, and I find that the plaintiff’s current life expectancy is two years from the date of Dr Edwards supplementary report of December 2023, and note that he will continue to suffer during that period, and such suffering will increase day by day.

42. The appropriate sum for general damages is $500,000.00.

Loss of expectation of life

43. In accordance with the Tribunal’s usual approach, and given the figures of the life tables, I will allow a figure of $8,000.00.

Past and future out-of-pocket expenses

44. The plaintiff is not eligible for iCare Dust Diseases Care, and thus his out-of-pocket expenses are expenses for which he is responsible.

45. Schedules containing the relevant calculations are attached at the conclusion of my judgment.

46. I commend the parties as there is substantial agreement as to some heads of damage.

47. The cost of the repayments to Medicare (under Amaca’s bulk agreement with Medicare) is $1,560.00. The repayment to the plaintiff’s private health insurer, Bupa, are agreed between the parties, as claimed in the sum of $31,235.25, which I allow.

48. The claim for the cost of future aids and equipment that the plaintiff will require is also agreed in the sum of $15,195.44 which I will allow.

49. The cost of the administration of the immunotherapy is agreed in the sum of $26.969.67 which I will allow.

50. The plaintiff claims attendances with his General Practitioner in the amount of $140.00 per visit once per month for the first 18 months, and thereafter twice per month for 6 months.

51. The defendant submits that the figure ought be once per month for 17 months at $90.00 per visit, and then twice per month for 6 months at $90.00 per visit. I accept that this is the appropriate rate as the plaintiff’s gave evidence that this was the amount that he paid when he went to the GP (T16.30). These figures calculated out on the 3% tables gives the amount of $1,551.25 for the first 17 months and then $1,040.04 for the final 6 months, both of which I allow.

52. The plaintiff seeks an allowance for pleural fluid drainage in the sum of $3,000.00 and local radiotherapy in the sum of $3,000.00. The defendant asserts that as these attendances are not a certainty, only 50% of each amount should be allowed. Noting that the regularity and costings of these attendances are provided by Dr Edwards, whose opinion I accept, particularly in the absence of any evidence from the defendant, I accept doctor’s estimates and allow $3,000.00 for each item.

53. I will allow the sum of $97,780.96 for future medical expenses.

Future care and assistance

54. In the absence of any evidence for the defendant, the opinions of Dr Edwards and Ms Vincent are unchallenged. In my experience having been involved in litigation involving plaintiffs diagnosed with mesothelioma for more than 3 decades, the views expressed by the experts accord with my experience and recollection, and I accept the opinions provided by Dr Edwards and Ms Vincent, and base my calculations on their uncontested figures.

55. In his report of 20 December 2023, Dr Edwards opined:

‘Currently, I estimate that Mr Bradley is functioning at an ECOG level of 1 and I consider that he would be at this for 12 months, ECOG level of 2 for eight months, ECOG level 3 for three months and ECOG level of 4 for one month before his demise.’

56. For the first period as set out in the parties schedules of damages, that is ECOG 1 and 2, the parties agree that the amount for the periods to 31 August 2025 in the amount of $26,921.85.

57. For the period 1 September 2025 to 30 November 2025 (13 weeks) allowing for passive care, on the 3% tables, the parties agree the sum of $99,951.83. For the same period the plaintiff claims the commercial cost of assistance with meal preparation, laundry and grocery shopping at the rates provided by Ms Vincent which total $6,873.46.

58. The defendant submits that as some of these tasks are already provided by the motel, and thus would not involve additional costs, it allows 3 hours per week at $48.85 per hour for 13 weeks on the 3% tables.

59. Importantly and tragically, it matters not where the plaintiff lives nor the type of accommodation he is in when he goes through the final stages of his mesothelioma. I find he will need the care in any event, and my view is based on the uncontested evidence of Dr Edwards and Ms Vincent.

60. I also accept the uncontradicted opinion of Ms Vincent, as she has also seen the plaintiff, seen the conditions under which he lives, observed his level of functioning and present capacity and assessed his potential needs given those circumstances and her vast experience. I allow the amount of $6,873.46.

61. There was initial agreement between the parties for the ECOG 4 in the sum of $37,800.00 for the round the clock care and hospice care for the period 1 December 2025 to 31 December 2025 in ECOG 4. That agreement was made for this period on a conservative approach adopted by Counsel for the plaintiff using an average of $10,000.00 per week. The schedule handed up indicated that this was based on Dr Edwards’ opinion.

62. The Amended Schedule reverted to the figure of $14,841.52 per week, such figure having been based on Ms Vincent’s assessments. This schedule was provided after both parties closed their respective cases and Counsel for the defendant has not had the opportunity to make further submissions on this point.

63. In any event, I believe the correct approach is for me to adopt the conservative figure which is supported by Dr Edwards’ opinion, and I therefore will allow the figure of $10,000 per week.

64. I allow the sum of $171,547.14 for future care and assistance.

Vicissitudes

65. The defendant submits that it is appropriate to apply a reduction for vicissitudes when assessing the damages for future care and medical and other expenses. Its written submissions contain the following:

The Court of Appeal in Avopiling Pty Ltd v Bosevski [2018] NSWCA 146; 98 NSWLR 171 (‘Avopiling’) held that it was appropriate to apply a reduction for vicissitudes in the assessment of damages for future attendant care, household assistance and future medical expenses. That case was one brought under the Civil Liability Act 2002 (CLA), however as observed by the Court, s 13 of the CLA requires an approach to future economic loss consistent with Malec v JC Hutton (1990) 169 CLR 638 (‘Malec v JC Hutton’) and ‘the weight of authority in this court is that the Malec v JC Hutton approach applies to an award of damages for future attendant care.’ Per Payne JA, with whom McColl and White JJA agreed at [137], agreement is expressed with the judgment of Basten JA in ANZ v Haq [2016] NSWCA 93 in which his Honour states that:

‘under the traditional approach ... the trial judge must consider at what point in time commercial assistance will, on the balance of probabilities, eventuate and must make some allowance, by way of vicissitudes, against the possibility that other events will intervene.’

(See [13], [137] of Avopiling).

On the facts of Avopiling, the Court applied a reduction of vicissitudes of 25% in respect of future care and household assistances and a lesser percentage of 10% for future medical expenses.

In the present case there is a degree of uncertainty regarding the plaintiffs life expectancy. It was estimated to be 18 months in August 2023 but due to Mr Bradley's response to immunotherapy, increased to 2 years in December 2023. The plaintiff has pre-existing medical conditions that required treatment, including cirrhosis of the liver and skin conditions, albeit these appear to have been under control.

In all the circumstances it is submitted that an appropriate reduction for vicissitudes in respect of future allowances is 15%.

66. Whilst I accept that this is an accurate submission in accordance with the principles discussed in Avopiling, in my view, a discount for vicissitudes is not appropriate in these proceedings.

67. The practise of applying a discount for vicissitudes has long been recognised where an award of damages by a Court in a personal injury case takes into account future loss. The High Court in Wynn v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485 at 497-8 (Dawson, Toohey, Gaudron and Gummow JJ) summarised the position in relation to an award for future economic loss as follows:

‘It is necessary to say something as to contingencies or ‘vicissitudes’. Calculation of future economic loss must take account of the various possibilities which might otherwise have affected earning capacity. The principle and the relevant considerations were identified by Barwick CJ in Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 659 as follows:

‘Ill health, unemployment, road or rail accidents, wars, changes in industrial emphasis, so that industries move their location, or are superseded by new and different techniques, the onset and effect of automation and the mere daily vicissitudes of life are not adequately reflected by merely – and blindly – taking some percentage reduction of a sum which ignores them.’

It is to be remembered that a discount for contingencies or ‘vicissitudes’ is to take account of matters which might otherwise adversely affect earning capacity and as Professor Luntz notes, death apart, ‘sickness, accident, unemployment and industrial disputes are the four major contingencies which expose employees to the risk of loss of income’. Positive considerations which might have resulted in advancement and increased earnings are also to be taken into account for, as Windeyer J pointed out in Bresatz v Przibilla (1962) 108 CLR 541 at 544, ‘[a]ll ‘contingencies’ are not adverse: all ‘vicissitudes’ are not harmful’. Finally, contingencies are to be considered in terms of their likely impact on the earning capacity of the person who has been injured, not by reference to the workforce generally. Even so, the practice in New South Wales is to proceed on the basis that a 15 per cent discount is generally appropriate, subject to adjustment up or down to take account of the plaintiff’s particular circumstances.’

68. As far as I am aware, the applicability of the vicissitudes discount to an award for future care is a novel question in this Tribunal. The reality for many plaintiffs in this jurisdiction suffering from mesothelioma is that life expectancy (and therefore future care needs) are extremely limited.

69. Notwithstanding this plaintiff’s relatively long prognosis, in my view the circumstances in Avopilling can be distinguished. In Avopiling the future period to which the vicissitudes discount was applied was 21 years, the issue in dispute being whether the plaintiff would need care for all of that period, and whether in fact he would live so long.

70. These proceedings present a very different situation. With respect to Counsel for the defendant, the only evidence of prognosis is provided by Dr Edwards who has estimated the plaintiff’s prognosis at 2 years.

71. On page 2 of his report of 20 December 2023 (exhibit J) at about the middle of the page, doctor opines as follows:

‘Whilst I assessed his life expectancy when I last saw him in late August, as being 18 months from then, given the response of his treatment to date, I consider that his life expectancy may be two years from now. However, the condition is not curable by immunotherapy and only continued follow up will determine how long his life expectancy will be. However, my estimate at this stage is two years.’

72. This evidence is unchallenged, and as I have accepted Dr Edwards’ qualifications and experience to present this view, and thus, I do not need to speculate as to what the plaintiff’s prognosis might be, as the only expert opinion is 2 years.

73. Furthermore, unlike in Avopiling where there was a high degree of uncertainty about the possible future care needs of Mr Bosevski (in circumstances where it was likely that he would survive for a further two decades), Mr Bradley’s decline as a mesothelioma sufferer is a surety and capable of being projected to a high degree of accuracy. Indeed, the inexorable deterioration of a person’s health in the end stages of mesothelioma are well-known by practitioners in this jurisdiction. Ms Vincent’s unchallenged evidence, which I have accepted, clearly demonstrates the nature and extent of the care that Mr Bradley will require as his condition deteriorates through the various ECOG stages. Importantly, there is no suggestion that he might not need the care. Ms Vincent’s evidence on this point was clear (see T30.25-31).

74. In Bresatz v Przibilla (1962) 108 CLR 541 (‘Bresatz’), the High Court warned against making an ‘arbitrary subtraction’ for vicissitudes. In affirming that each case depends upon its own facts, Windeyer J recognised that ‘all “contingencies” are not adverse; all “vicissitudes” are not harmful’ (at 543 – 544).

75. To that point, it is worth noting that based on the plaintiff’s current response to immunotherapy, he may in fact live longer than the two year prognosis provided by Dr Edwards. If that were to eventuate, he would need more care, treatment and medications than has been calculated based on the 2 year prognosis. This possibility represents the kind of positive vicissitudes referred to by Windeyer J in Bresatz.

76. In all the circumstances of this case, it would be in my view inappropriate to apply a discount for vicissitudes in this matter, and I decline to do so.

Schedules of damages

Total

General Damages	$500,000.00
Loss of Life Expectancy	$8,000.00
Interest ($250,000.00 x 2% per annum for 17 months)	$7,083.33
Medicare Charge	$1,560.00
BUPA Charge	$27,670.45
BUPA Gap payments made by plaintiff	$3,564.80
Future Medical Expenses	$97,780.96
Aids and Equipment	$15,195.44
Future Care and Assistance	$171,547.14
TOTAL plus costs	$832,402.12

Medical expenses

Item	Frequency	Total Cost
GP review	Once per month for the first 18 months at a cost of $90.00 per visit	$1,551.25
GP review	Twice a month for 6 months at a cost of $90.00 per visit	$1,040.04
CT chest scan	8 occasions at a cost of $1,000.00 per scan	$8,000.00
Antibiotics	On 5 occasions at a cost of $80.00 per month	$400.00
Oral prednisone	3 months at a cost of $30.00 per month	$60.00
Hospital care	3 occasions at a cost of $14,000.00 per visit	$42,000.00
Pleural fluid drainage	$3,000.00
Local radiotherapy	$3,000.00
Pain relief	12 months at a cost of $80.00 per month	$960.00
Anti-nausea medication	12 months at a cost of $80.00 per month	$960.00
Laxatives	12 months at a cost of $20.00 per month	$240.00
Palliative care physician review	Last 6 months of life at a cost of $350.00 per month	$2,100.00
Home oxygen	Last 6 months of life at a cost of $250.00 per month	$1,500.00
Palliative care nurse review	Twice a week for 6 weeks at a cost of $500.00 per visit	$6,000.00
Total		$70,811.29

Cost of immunotherapy administration

Item	Frequency	Cost	Total Cost
Pharmacotherapy session for neoplasm at National Capital Private Hospital	Every 3 weeks	$746.00	$248.66 per week x 91 (3% discount multiplier for 1.8 years) = $22,628.06
Medical Oncology Consult with Dr Aggarwal	Every 3 weeks	$143.15	$47.71 per week x 91 (3% discount multiplier for 1.8 years) = $4,341.61
Total		$26,969.67

Aids and equipment

Item	Weekly Cost
4 wheeled walker	$350.00
Over toilet frame	$170.00
Urinal bottle with lid	$20.00
Over bed table	$250.00
Electric lift and recline chair	$3,000.00
Manual transit wheelchair	$600.00
Mobile shower commode	$727.04
Height adjustable hospital style bed with rails	$1,569.75
Pressure relieving mattress	$2,696.00
Bed pan	$50.00
Urinal bottle holder	$56.00
Incontinence aids and hygiene products	$800.00 allowance
Towels and linen	$250.00 allowance
Hoist equipment including sling	$1,156.65
Services of an occupational therapist	$3,500.00 allowance
Total	$15,195.44

Future care and assistance

Period	Type of Assistance	Hours per week	Rate per week	Cost
Until 31.12.2024 approx.	ECOG 1 Independent
01.01.2025 – 31.08.2025 (34.71 weeks)	ECOG 2 Assistance with meal preparation, laundry, grocery shopping	6.33	$557.73	$557.73 x 34.71 weeks x 0.955 (3% deferred multiplier for 1.57 years) = $18,487.66
01.01.2025 – 31.08.2025 (34.71 weeks)	ECOG 2 Supervision when showering/drying and dressing	3.5	$254.44	$254.44 x 34.71 weeks x 0.955 (3% deferred multiplier for 1.57 years) = $8,434.19
01.09.2025 – 30.11.2025 (13 weeks)	ECOG 3 Active and passive types of care	98	$8,110.34	$8,110.34 x 13 weeks x 0.948 (3% deferred multiplier for 1.82 year) = $99,951.83
01.09.2025 – 30.11.2025 (13 weeks)	ECOG 3 Assistance with meal preparation, laundry, grocery shopping	6.33	$557.73	$557.73 x 13 weeks x 0.948 (3% deferred multiplier for 1.82 year) = $6,873.46
01.12.2025 – 31.12.2025 (4.43 weeks)	ECOG 4 Around the clock – hospice care	168	$10,000.00	$10,000.00 x 4 weeks x 0.945 (3% deferred multiplier for 1.9 year) = $37,800.00
Total				$171,547.14

Orders

77. I make the following orders:

1. Judgment for the plaintiff in the sum of $832,402.12.

2. The defendant is to pay the plaintiff’s costs as agreed or assessed. If any alternate costs orders if sought, the parties must approach my Tipstaff within 7 days.

**********

Decision last updated: 09 February 2024