Brooks v Trend Roofing Pty Limited
[2009] NSWDDT 11
•8 May 2009
Dust Diseases Tribunal
of New South Wales
CITATION: Brooks v Trend Roofing Pty Limited & Anor [2009] NSWDDT 11 PARTIES: Peter Francis Brooks
Trend Roofing Pty Limited
Amaca Pty LimitedMATTER NUMBER(S): 6255 of 2006 JUDGMENT OF: Kearns J CATCHWORDS: DUST DISEASES TRIBUNAL :- dust diseases
assessment of damages
combined obstructive and restrictive deficits
use of total lung capacity testing to assess restrictive deficit
general damages
claim for care and assistance
out-of-pocket expenses claimed, but not submitted to Dust Diseases Board for payment
whether plaintiff's damages should be reduced to 57.5% of damages assessed to conform with assessment made by Contributions Assessor against defendantCASES CITED: Stewart v QBE Insurance (Australia) Limited [2008] NSWDDT 32
QBE Insurance (Australia) Limited v Wallaby Grip Limited (2007) 4 DDCR 331
(re Millard) Eraring Energy & Anor v Power Technologies Pty Limited [2007] NSWDDT 24
Harradine v Cockatoo Dockyard & Ors [2008] NSWDDT 8
Anton Frans Broers v Australian Co-Operative Foods Limited & Ors [2008] NSWDDT 38
(re Millard) Energy Australia v Power Technologies Pty Limited [2009] NSWDDT 1DATES OF HEARING: 15/04/2009, 16/04/2009, 17/04/2009
DATE OF JUDGMENT:
8 May 2009LEGAL REPRESENTATIVES: Mr G Little SC with Mr S Tzouganatos, instructed by Turner Freeman, appeared for the plaintiff.
No appearance for the first defendant.
Mr J Sharpe, instructed by Ellison Tillyard Callanan, appeared for the second defendant.
JUDGMENT:
Outline
1. The second defendant acknowledges that subject to the plaintiff proving exposure to its products containing asbestos, the plaintiff is entitled to a verdict against it. I accept the plaintiff’s evidence as to his exposure. He is, accordingly, entitled to a verdict against the second defendant. The plaintiff seeks provisional damages and the final orders will reflect that.
2. The plaintiff’s evidence as to exposure included some relatively light exposure to product other than that of the second defendant. Mr Sharpe, who appeared for the second defendant, conceded that there was to be no reduction in the plaintiff’s damages on that account.
3. The first defendant did not appear and although there was evidence in the case against that defendant, Mr Little SC who, with Mr Tzouganatos, appeared for the plaintiff, did not press for a verdict against it.
4. The plaintiff’s case for damages seeks general damages, Griffiths v Kerkemeyer type damages and out-of-pocket expenses.
General damages
5. The plaintiff has mixed obstructive and restrictive respiratory deficits, although it seems to me there is some lack of clarity in Dr Gardiner’s evidence in whether he thinks the plaintiff does have a respiratory deficit. The plaintiff’s obstructive deficits are in the form of emphysema and asthma and are secondary to his smoking. His restrictive deficits are in the form of diffuse pleural thickening and rounded atelectasis and are secondary to his exposure to asbestos.
6. The plaintiff was born on 5 June 1942. He left school at 15 years of age. He undertook employment from when he left school, undertaking various tasks such as those of a storeman, machinist, metal fixer, labourer, front-end loader operator and truck driver. He retired in 1999.
7. He was a smoker. He started to smoke after he left school at the age of 15. In his affidavit Exhibit PX 1, paragraph 27, he stated that initially he smoked about 15 to 20 cigarettes a day and slowly increased this to about 40 cigarettes a day. Other histories in this case give credence to the suggestion that he smoked up to 60 cigarettes a day for many years. How many he smoked really does not matter. The fact is he has obstructive airways disease as a result of his smoking.
8. In about 2000, he went into Mt Druitt Hospital because of breathlessness. At the time he was frightened to go to sleep, he could not get air and he felt like drowning. He was in hospital for three days. In hospital, he received a warning about smoking and he has not smoked since.
9. The plaintiff says he started to notice breathlessness in about the mid-1990s. He experienced breathlessness and fatigue when lifting heavy items. He considers that his breathlessness deteriorated gradually until about 2000 when he starting experiencing significant shortness of breath. He says that from about 2000, he has “had problem sleeping and I experienced a drowning sensation when I gasp for air in the middle of the night” Exhibit PX 1, paragraph 29. He has experienced breathlessness when eating a full meal because it feels like his stomach is pressing against his lungs. He says he has a cough, chest pain and constant shortness of breath. He takes Spiriva and Ventolin for the shortness of breath.
10. The plaintiff says that he first noticed chest pain in about 2000 and it has increased over the last few years. He describes it as a sharp and heavy pain in the lower right side of his chest that comes on about once a week. The chest pain can last from a couple of hours to the whole day and when he coughs, it becomes acute and sometimes he folds up with the pain. He says he often sits with his arms folded and pressing on his chest to relieve the pain. His GP suggested the use of pain killers, but the plaintiff is reluctant to use that medication for fear of addiction.
11. The plaintiff says the presence of strong perfume or smoke makes him gasp for air. Since about 2000, he has been avoiding crowded and enclosed places such as pubs, restaurants and public transport, although he says he feels upset when he cannot have a full meal at a restaurant with his daughter and grandchildren.
12. He cannot service his car as he used to do as bending over the bonnet causes breathlessness. If he feels breathless and tired from exertion, he stops for a few minutes to regain energy, then resumes what he was doing.
13. His daughter and her children assist the plaintiff with cleaning of his campervan and with tasks that require exertion. He believes that they spend an average of three hours per week attending to his domestic chores, looking after him and assisting him by carrying shopping bags, cleaning and picking up things he has dropped on the floor.
14. In his evidence, the plaintiff stated that he was a fit person up until about the mid-1990s. Then he started to slow down a bit. He says he gave up work in 1999 because of shortness of breath, but there is no claim for loss of earning capacity. He developed a cough, although he was unable to indicate when that commenced. He stated that it commenced some time after he gave up smoking. Other material suggests it might have commenced about 2004. He spoke of some painful coughing episodes, especially with pain at the base of the rib cage area and he has had these episodes for about three to four years. On occasions, he can see little black dots before his eyes and he is virtually on the point of passing out. These episodes can occur two to three times a week and can last all day and sometimes he cannot move for about an hour or so.
15. Over about the last two to three years, he thinks his condition has slowly been getting worse. He thinks he can cover less distance than he did before and that he is very slow on hills.
16. It was suggested in cross-examination and in submissions that, in fact, the plaintiff’s exercise tolerance had improved and that before the Dust Diseases Board in March 2007, he gave a history of walking two to three kilometres a day. That history needs to be read in context.
17. Material from the Dust Diseases Board Exhibits DX 7B and DX 7C reveals a slight deterioration from June 2005 to May 2007. On 23 June 2005, he is recorded as being able to walk at least one kilometre at his own pace on level ground. It was recorded that he walked two kilometres every day. It was also noted that he had to walk more slowly than people of his age because of breathlessness. Exercise capacity was recorded as being limited by breathlessness. Dyspnoea was recorded as having increased over the previous 12 months. There was history of chest pain and cough as well. On 13 March 2007, it was recorded that he could walk at least one kilometre at his own pace on level ground. It was also recorded that he walked two to three kilometres every day. This time instead of having to walk more slowly on the level than people of his age because of breathlessness, it is recorded that he had to stop for breath when walking at his own pace. Exercise capacity was again recorded as being limited by breathlessness and again, dyspnoea was recorded as having increased over the past 12 months. Again, chest pain and cough were recorded. The estimates of walking distances are but estimates and I would not make any finding or draw any inference of improvement in the plaintiff’s condition from those estimates, especially where he appears to have deteriorated in the sense that in 2005 he walked more slowly than others of his age, but in 2007, he had to stop for breath.
18. The plaintiff agreed with the correctness of some history put to him that on ceasing smoking he became acutely sensitive to cigarette smoke and perfumes and that these could bring about paroxysms of coughing.
19. The plaintiff suffered a myocardial infarction in 2001 and underwent treatment for that. He was put on some statin medication which caused some liver complication and he has, accordingly, been off that medication since. Nevertheless, he has undergone cardiac examination including an exercise stress test on 14 April 2004. The result of that test was negative, indicating that then the plaintiff did not have any coronary artery disease adversely affecting his breathing capacity.
20. He was cross-examined about telling Dr Gardiner that he mowed the lawn, but stopping half way for a brief pause. His response to that was that he did mow the lawn, but sometimes it took him a couple of days to do it. His history to Dr Johnson in August 2006 was that he mowed the lawn in stages.
21. Dr Johnson saw the plaintiff on 9 August 2006. Dr Johnson saw three CAT scans spanning about four years which showed rounded atelectasis in both lung bases, areas of pleural thickening bilaterally meeting the criteria for diffuse pleural thickening and emphysema in both upper lobes. He diagnosed emphysema and asbestos related pleural disease. He thought that he was 50% disabled and he assessed half the disablement as being due to his obstructive condition and half due to his restrictive condition.
22. Dr Johnson reported more recently on 23 March 2009 Exhibit PX 3. Then, he thought that the plaintiff’s condition had deteriorated since 2006. He thought that there was increasing shortness of breath and an increase in his restrictive deficit. There was in Dr Johnson’s view a progressive reduction in the plaintiff’s total lung capacity (TLC). TLC, he said, is the best marker of restriction. He noted that the plaintiff’s TLC on 21 March 2007 was 89% of predicted and on 13 March 2009 was 79% of predicted.
23. It emerged later in evidence that there was another measurement of TLC in tests undertaken at Westmead Hospital in May 2007 where the TLC was 82% of predicted.
24. In March 2009, Dr Johnson estimated the plaintiff’s impairment from his asbestos-related pleural disease to be 30% of whole person. He commented that he would require an average amount of domestic assistance and care of three hours per week due to his asbestos-related pleural disease and emphysema.
25. Dr Johnson gave evidence. He explained in some detail and in clear terms the meaning of various aspects of lung function testing including FVC, FEV1, the FEV1/FVC ratio, the DLCO or transfer factor, KCO and TLC. In the result, I do not need to analyse the results of many of these aspects of the plaintiff’s lung function tests.
26. Initially, it seemed that there was a clear conflict between Dr Johnson and Dr Gardiner as to the significance of TLC as a marker of restriction. In his report Exhibit DX 1A of 28 October 2008, Dr Gardiner stated that vital capacity was probably the best measure of the plaintiff’s lung restriction. Using AMA guides, the plaintiff had a vital capacity of 2.72 litres which put him in Class 2, being a 10-25% impairment. Dr Gardiner thought that the impairment was divided equally between the obstructive and restrictive deficits, but then oddly later stated that his airways disease was probably predominant.
27. In his next report Exhibit DX 1B of 14 April 2009, Dr Gardiner stated that for the purpose of estimating impairment TLC was not accepted as an appropriate and readily available measure for making the calculation. This part of Dr Gardiner’s view had been put to Dr Johnson in cross-examination and Dr Johnson agreed with it, but this seemed to be more on the basis that it was not included in the AMA guidelines and so was not accepted in that sense T36.42. I do not understand Dr Johnson to be backing off his evidence that TLC is the best indicator of restrictive deficit. In re-examination, he offered an explanation as to why TLC is not included in the guidelines and that is that the equipment to measure it is expensive and not readily available.
28. Dr Gardiner’s report stated that the AMA guidelines do not list TLC. On those guidelines, the plaintiff’s predicted VC was 3.95 litres. The lower limit of normal was 2.8 litres and his actual reading was 3.61 litres. This was an increase in VC of about one litre over previous readings and Dr Gardiner though it was surprising that the plaintiff was complaining of increased shortness of breath.
29. Dr Gardiner stated that the AMA classification also depends on the measured FEV1 being greater than the lower limit of normal, which it was not in the plaintiff’s case. When this matter was put to Dr Johnson, Dr Johnson, apparently with the guidelines before him, explained with some care that this was one of three alternatives that the guidelines set out and to satisfy the guidelines, it was not necessary that each of those alternatives be satisfied, but that one only be satisfied. I accept that explanation given by Dr Johnson.
30. Dr Gardiner was cross-examined about TLC being the best marker of restriction and, on this point, where Dr Johnson had relied on a paper by Pellegrino and others, Dr Gardiner relied on a paper by Aaron and others Exhibit DX 4. He ended up agreeing with the proposition that the effect of the Aaron paper was that “TLC is the most accurate of the tests to confirm lung restriction” T49.26. He went on to say that whilst TLC is the best test, it is imperfect and prone to a lot of errors and that is why it is not used in the AMA guidelines. When asked what the errors were, it turned out there were two.
31. The first error that the test is prone to is that it may be done using the helium dilution or nitrogen method instead of the body box method. The potential for error there may be put to one side in this case because the TLC measurements in March and May of 2007 and March of 2009 were all done using the body box method.
32. When asked then about the body box method, Dr Gardiner said it was prone to error in the technique in its use. With one possible exception, I have no evidence before me to suggest that there was any error in technique in the lung function tests of 2007 and 2009. The one possible exception was the Westmead test in May 2007 Exhibit DX 3 where there was a report that the plaintiff had pain on deep breathing. Dr Gardiner went on to say that he would trust the Westmead test, but he did not know enough about the techniques used in Dr Johnson’s tests.
33. When asked to assume that all tests were properly done, Dr Gardiner then responded that there could be a plus or minus five percent variation in the measurements so that there was not a great deal of difference between 89% and 79%. That is so if one takes only one view about a plus or minus five percent difference. If one subtracted five from 89 and added five to 79, the answer in both instances would be 84, so that there would be no difference at all in the plaintiff’s TLC between March 2007 and March 2009. There is another possibility at the other extreme and that is if one added five to 89 and subtracted five from 79, the figures then are 94 and 74, so that there has been a drop of 20 points over the two year period, in which event the plaintiff’s deterioration would be far more serious than is apparent in the results. Then there are other possibilities lying between these two extremes. The point is well made by Dr Gardiner that one gets a better idea of these readings if there are many done over a long period of time. The facts are, however, that there is evidence of three readings over a two year period and the tests were done using the more accurate technique, being the body box technique. I do not see any reason why I should discount these tests on the basis of some potential errors in respect of which there is no evidence, except the pain issue referred to in the previous paragraph, or on the basis of some plus or minus five percent variable.
34. I am satisfied on the evidence that TLC is the best marker for restrictive deficit in this case and that the tests of March 2007 and May 2007 and March 2009 probably give an accurate assessment of the plaintiff’s TLC.
35. Dr Gardiner then says, even so, from a restrictive point of view, the plaintiff has no restrictive disease T48.37. That was in the context of questions relating to CAT scans, but it would fit with his evidence that the TLC readings in this case are normal. He took the view that they were normal because normal for the plaintiff fell within a range of 120 to 80. The problem with that is that is a norm for a population base. It is not a norm for an individual. Any given individual, if he falls within the predicted range, will have only one reference point within that range. It is not known what the plaintiff’s reference point is, but it is known he has gone down by 10 points. If, over a lengthy enough period, a person underwent a sufficient number of tests and his TLC at the beginning was 120% of predicted (upper limit of normal) and at the end of the period was 80% of predicted (lower limit of normal), it would be wrong, in my view, to say there is no restrictive deficit because all results are in the normal range. Such a person will have, in fact, lost a significant amount of TLC.
36. Having indicated that the plaintiff has no restrictive disease, Dr Gardiner then seemed to accept that he did. At T51.30, the following question and answer appeared:
Q “So at the moment, you do not think his restrictive disease is producing any impairment?”
A “Not impairment, it might be producing some pain which I acknowledge…”
37. The plaintiff does have a restrictive disease and the TLC readings of March and May 2007 and May 2009 are a good indication of the extent of that restrictive disease.
38. Dr Johnson assessed the plaintiff’s respiratory disability at 50%. He stated that using the AMA guidelines, he would put him in Class 3 being 26-50% disabled. Why he chose 50% as distinct from 26% or something in between is not entirely clear. Presumably, it was on the basis of the symptoms he recorded and his recording of the plaintiff’s current state. It is to be noted that on his recording of the plaintiff’s current state, the plaintiff was able to do his own shopping and mow the lawn in stages.
39. As to the future, it is surprising that, for what is claimed to be a significant part of the plaintiff’s case, it was not addressed until Dr Johnson was asked about it in his oral evidence. The evidence was objected to, but I allowed it on the basis that the defendant was able to deal with it. Dr Johnson expressed the view that most people in studies tend to suffer an initial drop in TLC and then it stays pretty much constant, but there are some people that show a decline progressively over time. He thought the plaintiff was more likely to decline. Dr Gardiner thought it was unlikely that the plaintiff would decline.
40. I have some difficulty with Dr Johnson’s view that the plaintiff is more likely to decline. When one looks at the three TLC readings from March 2007 to March 2009, one sees what might be that initial drop in TLC that Dr Johnson spoke about and that is the plaintiff dropped from 89% of predicted to 82% of predicted, a drop of seven percentage points in two months. The next drop was of three percentage points over about two years. That analysis may not be accurate because it may be that when Dr Johnson was talking about an initial drop in TLC, he was talking about a drop that would be expected earlier in time. Nevertheless, whilst there has been some drop in the past two years, it seems to be relatively minor, at least, between the tests in May 2007 and March 2009.
41. Dr Johnson had difficulty assessing what the future would be like. When asked what the plaintiff would be like at 84 years of age, he said he could not estimate and that whilst some people have respiratory failure, it is unusual. He thought there was certainly a risk of continuing deterioration and that was not contradicted by radiology which did not show any deterioration because there is not necessarily a good correlation between radiology and lung function testing. It is the case that the plaintiff’s obstructive condition has improved, no doubt by reason of his ceasing to smoke and medication. Any deterioration in his breathing difficulties may fairly then be ascribed to his restrictive deficit.
42. I think there is a risk that the plaintiff will deteriorate, but if there is a deterioration, I think it is likely to be relatively slow and gradual. I rely principally on the relative slowing in the rate of deterioration from March 2007 to March 2009 and also on the facts that he still walks two to three kilometres per day and is still able to mow the lawn.
43. Mr Little SC submitted that in assessing general damages, I should bear in mind that the plaintiff is “frightened now and feels as though he is drowning”. He submitted that early histories revealed a degree of panic attached to the feeling that he is drowning. There was certainly evidence of the plaintiff having a feeling of drowning and that was related to his admission to Mt Druitt hospital in 2000. The records of his admissions to Port Macquarie Hospital in March 2004 and Mt Druitt Hospital in September 2001 do not appear to contain any record of a sensation of drowning.
44. Paragraph 29 of his affidavit states:
“From about 2000, I have had problem sleeping and I experienced a drowning sensation when I gasped for air in the middle of the night”.
The mix of past and present tenses makes it difficult to discern what the situation truly is, but I think the sense of this paragraph is that the plaintiff does have a sensation of drowning on the occasions when he gasps for air in the middle of the night.
45. It seems to me the plaintiff is a person who, by reason of his restrictive deficit, is limited in his walking and his exercise tolerance generally. He says he is constantly short of breath, but that evidence must be read in the light of histories of his ability to do his own shopping and mow the lawn and walk although limited by shortness of breath in some of these activities. There is no evidence of any difficulty in self-care, except the most general of observations in his affidavit. There is no specific evidence about problems with self-care. The evidence about activities of daily living is not satisfactory. The plaintiff says his daughter and grandchildren look after him, including carrying shopping bags, cleaning, vacuuming, dusting and picking up things he drops on the floor. Carrying shopping bags could be difficult, but his history to Dr Johnson was that he did his own shopping and his own shopping needs would be fairly modest in any event. Vacuuming could be difficult, but he lives in a campervan and I do not know to what extent, if at all, vacuuming is required. Bending over could be difficult, but picking up things off the floor should not be beyond him, especially as he is able to mow the lawn. What cleaning or dusting he is unable to do in his campervan, I do not know. He does have pain and I accept that he has pain to the extent that he deposes to. He also has a cough, although Dr Gardiner is of the view that this is not related to his restrictive deficit. The history of the onset of the cough would appear to support Dr Gardiner’s view. Dr Johnson was asked about the plaintiff’s cough, but the question was objected to and Mr Little SC did not press it on the basis that it was referred to in the history. The history of cough in Dr Johnson’s report Exhibit PX 5 was “he coughs a little sputum during the day”. The cough could be explained on the basis of the plaintiff’s obstructive deficit or his restrictive deficit or perhaps both. Unfortunately, the point was not pressed with Dr Johnson and, accordingly, the situation is that his evidence does not deal with the cause of the cough. The only evidence I am left with is Dr Gardiner’s that the cough is not related to the restrictive deficit. His life expectancy would be about another 17 years approximately. I allow for the possibility that the plaintiff’s condition will deteriorate in time. I think a reasonable allowance for general damages is $80,000.
Griffiths v Kerkemeyer
46. So far as the plaintiff’s claim for Griffiths v Kerkemeyer damages is concerned, before he is entitled to anything, he must demonstrate a need caused by his restrictive deficit. In some instances, the nature of a person’s injury would make that need obvious. In this instance, in my view, the need should be demonstrated by medical evidence. The only medical evidence in support of the plaintiff’s claim is that of Dr Johnson who reported that he needed an average of three hours per week. In his report, Dr Johnson did not identify what this was for. Dr Johnson had in mind that the plaintiff was living in an average suburban home. It is difficult to understand how the plaintiff could have a need for care and assistance, even if he lived in an average suburban home when he is able to mow the lawn. There were three different pieces of evidence about his ability to mow lawn. His history to Dr Johnson was that he mowed the lawn in stages. His history to Dr Gardiner, and this was in October 2008, was that he would mow the lawn stopping half way for a brief pause and in cross-examination, he said it takes a couple of days to mow the lawn. The point is he can do it and no doctor has suggested that he cannot or should not. If he has no need for care in that regard, it is difficult to know what he does need care for. I reject the plaintiff’s claim for damages for care and assistance to date.
47. So far as the future is concerned, it is not certain that the plaintiff will deteriorate. If he did deteriorate, the rate of deterioration cannot be known. I do not accept the submission that he is likely to become a respiratory cripple. Medical evidence does not support that. The plaintiff’s living circumstances would suggest that if he did deteriorate, he would not require a substantial amount of care unless he did become a respiratory cripple or close to it. I allow $5,000.
Out-of-pocket expenses
48. The plaintiff also claims an amount of $2,646.05 Exhibit PX 27. for medical expenses. These are expenses which on their face are recoverable by the plaintiff from the Dust Diseases Board. If they are payable by the Board, they are not claimable in these proceedings. The highest the plaintiff could put this claim was from the Bar table that anecdotally in another case, the Board delayed for a long time in making a decision and the defendant in that case did not honour an undertaking to pay. I take no note of that. There is not even any evidence that an application has been made to the Board for payment. I reject this claim at this stage. Mr Sharpe suggested that an order could be made under s13(6) granting the plaintiff leave to apply for a reconsideration in the event that the Board does not make payment in respect of these expenses.
Contributions assessment
49. The final matter to consider is whether the plaintiff is entitled to judgment for the full amount of the damages I have assessed or is limited to 57.5% of that amount. The 57.5% comes from an assessment made by a contributions assessor in this case. In a contributions assessment made by a contributions assessor, the contributions assessor attributed apportionment as to 57.5% to the second defendant and 42.5% to the first defendant. Mr Sharpe submits that the Dust Diseases Tribunal Regulation and the cases he referred me to have the effect that the plaintiff’s entitlement to judgment is limited to 57.5% of the damages assessed. I do not accept that submission.
50. Clause 13 of the Regulations sets out the objectives of the claims resolution process (CRP). Clause 18 sets out claims that are subject to the CRP.
51. Clause 48 requires defendants to agree amongst themselves as to contribution. Clause 49 deals with the determination of apportionment failing agreement amongst the defendants and Mr Sharpe relied particularly on clause 49(8) which provides:
“A determination of a Contributions Assessor under this Division cannot be challenged, reviewed, quashed or called into question before any court of law or administrative review body in any proceedings. This subclause does not prevent the subsequent taking, or determination by the Tribunal, of a dispute between defendants as to apportionment.”
He also relied particularly on clause 52(1) and (2) which provide:
“(1) An agreement or determination as to apportionment among defendants for the purposes of this Division is conclusively binding on the defendants for the purposes of the settlement, or determination by the Tribunal, of the plaintiff’s claim and payment of the plaintiff’s damages.
(2) The agreement or determination is not binding for the purposes of the subsequent taking, or determination by the Tribunal, of a dispute between defendants as to apportionment.”
Mr Sharpe then made the submission that there was no provision for the plaintiff to do anything about challenging the contributions assessment and it was a defendant only who could do so.
52. In Stewart v QBE Insurance (Australia) Limited [2008] NSWDDT 32 [11-12], I held that a defendant at the suit of the plaintiff was not bound by a contributions assessment and that a plaintiff could not rely on a contributions assessment to obtain a verdict against a defendant. Just as a plaintiff cannot benefit from a contributions assessment in this way, so he cannot be burdened by a contributions assessment in this way. If the plaintiff’s submission is correct, then the application of the Regulation would have preposterous consequences. It would be preposterous that a plaintiff could be bound by an administrative decision in a contest to which he was not even a party. Mr Sharpe submitted that a defendant only can challenge a contributions assessment. That is so, but it is so because the contest is between defendants. The plaintiff is a stranger to that contest. If Mr Sharpe’s submission is correct that a plaintiff is bound by a contributions assessment because only a defendant can challenge it, then so is any stranger to the proceedings bound by it. Mr Sharpe relied on a number of other authorities, being QBE Insurance (Australia) Limited v Wallaby Grip Limited (2007) 4 DDCR 331, Millard(re Millard) Eraring Energy & Anor v Power Technologies Pty Limited [2007] NSWDDT 24, HarradineHarradine v Cockatoo Dockyard & Ors [2008] NSWDDT 8, BroersAnton Frans Broers v Australian Co-Operative Foods Limited & Ors [2008] NSWDDT 38, Millard(re Millard) Energy Australia v Power Technologies Pty Limited [2009] NSWDDT 1. In my view, those authorities do not advance his submission. The plaintiff is entitled to judgment for the full amount of damages assessed.
Interest
53. I allow interest on past general damages, $25,000, at two per cent per annum for nine years, being $4,500.
54. Orders
(1) Verdict and judgment for the first defendant against the plaintiff.
(2) Verdict for the plaintiff against the second defendant.
(3) Judgment for the plaintiff against the second defendant for provisional damages pursuant to s11A of the Dust Diseases Tribunal Act 1989 in the sum of $89,500.
(4) The dust-related conditions in respect of which the award for provisional damages is made are asbestosis, asbestos-related lung cancer, pleural mesothelioma, peritoneal mesothelioma and asbestos induced carcinoma of any other organ.
(5) Leave to the plaintiff to apply to reconsider the matter in the event that the Dust Diseases Board fails to make payment of the expenses in Exhibit PX 27.
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