Campbell v Whyall Shipbuilding and Engineering Works

[2001] NSWDDT 21

Dust Diseases Tribunal

of New South Wales

CITATION:	Campbell v Whyall Shipbuilding & Engineering Works & Ors [2001] NSWDDT 21
PARTIES:	George Campbell Whyalla Shipbuilding & Engineering Works Wallaby Grip Limited Wallaby Grip (BAE) Pty Ltd (in liquidation) Wallaby Grip (NSW) Pty Limited (in liquidation) Amaca Pty Ltd Adelaide Ship Construction (A Division Of Adelaide Steamship Industries Pty Limited)
MATTER NUMBER(S):	170 of 2001
JUDGMENT OF:	O'Meally J at 1
CATCHWORDS:	Damages :-
LEGISLATION CITED:
CASES CITED:	Sullivan v Gordon (1999) 47 NSWLR 319; Giffiths v Kirkemeyer (1977) 139 CLR 161
DATES OF HEARING:	21 August 2001 22 August 2001 23 August 2001
EX TEMPORE JUDGMENT DATE :	08/22/2001
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr D G Letcher, QC instructed by Turner Freeman FOR DEFENDANT Mr J A McIntyre, SC instructed by Piper Alderman appeared for the first defendant Mr J Bartos instructed by Middletons Moore & Bevins appeared for the second, third and fourth defendants Mr J Sleight instructed by Phillips Fox appeared for the fifth defendant Mr G P R Rundle instructed by Hickson Wisewoulds appeared for the sixth defendant

JUDGMENT:

1. It is conceded that in his employment by the first and sixth defendants the plaintiff was exposed to and inhaled asbestos dust and fibre manufactured or produced or distributed by the second, third, fourth and fifth defendants. It is not now disputed that the plaintiff is entitled to a verdict and judgment jointly and severally against each defendant. The judgment will be joint and several because the plaintiff suffers mesothelioma, an injury which is one and indivisible.

2. Though not a great deal of time was occupied in receiving evidence, much time was spent in isolating the areas of dispute and in reaching agreement on various aspects of the plaintiff’s claim. The only issues left for me to determine relate to certain items for past and future care and to a claim made in accordance with the principle established in Sullivan vGordon (1999) 47 NSWLR 319. The items agreed are as follows:

General Damages $160,000.00
Interest on Past General Damages $1,000.00
Loss of Expectation of Life $15,000.00
Out of Pocket Expenses $11,804.80
Hire of Items $3,847.30
Tiling Expenses $2,450.00
Painting $3,500.00
Carport Expenses $700.00
Future Medical Expenses $40,000.00

3. The great bulk of the costs of past and future care have been agreed. What remains in issue in respect of past care are allowances to be made for the administration of medication to the plaintiff and passive and active night care. In respect of the future there is a dispute in respect of an allowance for active night care and for the costs of a respite carer.

4. The plaintiff’s mesothelioma was diagnosed on 16 March this year. As a consequence of the progression of the disease he has become and is continuing to be increasingly disabled. So far as the disputed items are concerned it is relevant to note that he takes six Panadol tablets per day and two Tramal tablets per day. These tablets, or his taking of them, are supervised by his wife. In evidence the plaintiff said he relies upon her because he is forgetful and were it not for the fact that she assists in the administration of this medication he would frequently forget.

5. In respect of the past administration of medication the plaintiff claims that his wife spends some 3 hours per week in this task and, in accordance with a schedule of costs, claims for the past the sum of $1,156.68. The defendants dispute his entitlement to this sum but concede an entitlement in the sum of $385.86 on the basis that one hour, not three hours, per week is an appropriate figure. I should say at the outset, as I said during the course of submissions, that I found the plaintiff to be an honest and truthful witness. I accept that he gave his evidence truthfully. However, in respect of some aspects related to care given to him he made estimations of the time spent by his wife in attending to him; indeed, that is all he could do. In the quantification of Griffith v Kerkemeyer expenses precision is impossible to achieve, and generally a broad brush or robust approach must be taken. At my urging the plaintiff and the defendants compromised various aspects of the claim and reached agreement, but they were unable to compromise and reach agreement on the matters to which I have referred.

6. In respect of the administration of medication, that is the plaintiff’s taking six tablets per day, my view is that the one hour conceded by the defendants should be allowed and not the three hours claimed by the plaintiff. This seems to me to be more realistic.

7. In respect of passive night care and active night care for the past, the plaintiff claims, respectively, the sums of $4,179.56 and $2,698.92. The defendants dispute that the plaintiff is entitled to any amount in respect of night care for the past. This is because an occupational therapist qualified on the plaintiff’s behalf for the purposes of this case did not suggest that such care was necessary. It is the fact that the plaintiff wakes regularly during the course of the night. He does experience interrupted sleep. On those occasions when he wakes his wife frequently speaks to him and offers him comfort until he returns to sleep. There is no evidence, apart from her having conversed with him when awake that active care was provided. I accept the plaintiff’s evidence, that his wife does comfort him and console him when he wakes, and indeed she is to be commended for the attention she gives to her husband, but in the absence of evidence from a qualified expert that such care is reasonably necessary I am disinclined to allow it.

8. In respect of the future, based upon the report of Anne Morgan, the occupational therapist qualified by the plaintiff’s solicitors, claims at differential rates are made in respect of discrete periods. The first is 26 July 2001 to 15 November 2001, the second from 16 November 2001 to 28 February 2002, the third from 1 March 2002 to 15 May 2002 and the fourth from 16 May 2002 to 25 July 2002. In respect of the first of these future periods there is a claim for seven hours per week active night care totalling $2,440. This part of the claim again is disputed by the defendants on the basis that there is no evidence that active night care has been or will become necessary. Accordingly, on the same grounds it should be disallowed.

9. A claim is made for the cost of a respite carer. In my view this claim should also be disallowed. The rate for a respite carer is precisely the same as that claimed and allowed for care. If the plaintiff’s wife does not in the future care for him and a respite carer is brought in then the same costs will be incurred. To allow the cost of a respite carer would compensate the plaintiff twice for the same loss.

10. Having made those observations I leave it now to the parties to calculate and then inform me of the amount to which the plaintiff is entitled in respect of disputed and conceded items.

11. The plaintiff’s mother-in-law, Frances Rogers, migrated to Australia from Newcastle in the United Kingdom in 1999. The plaintiff and his wife sponsored her coming to Australia and undertook to the Federal Department of Immigration and Multicultural Affairs to house and care for her. Mrs Rogers suffers from lymphoedema and as a consequence has difficulty with ambulation. The report of Cathy Trancalis, an occupational therapist qualified on behalf of the second, third and fourth defendants, noted that Mrs Rogers walked with a walking stick and had difficulty walking for prolonged periods and standing. She was said to be independent in personal care tasks, including bathing. However, she did require assistance with certain household tasks and from time to time she required transport. In paragraph 52 of his affidavit, PX1, speaking of his mother-in-law, the plaintiff recited that she arrived in mid November 1991 and:

From her arrival until December I put in 2-3 hours a day looking after her and now Anne has to do that in addition to extra time for me.

12. In evidence the plaintiff said that before he became ill he would help his mother-in-law in and out of the car, that he pushed her around in her wheelchair. At home he did not do much; he “just made her an occasional cup of tea”. After he became ill he could still make a cup of tea, but his wife now does the other things he used to do. The fact is that the great bulk of care given to Mrs Rogers was given by her daughter, the plaintiff’s wife. The estimate of two to three hours given by the plaintiff in par 52 of his affidavit is not supported by his oral evidence that he helped her in and out of the car and pushed her around in her wheelchair. On the evidence, it is my view that the plaintiff probably spent about an hour a week in caring for his mother-in-law. It is on the basis that his mother-in-law is a member of the plaintiff’s household that he claims to be entitled in accordance with the principles enunciated by the Court of Appeal in Sullivan v Gordon (1999) 47 NSWLR 319. Sullivan v Gordon was, of course, a case involving a claim for care given to a child by a mother. The defendants submit that the plaintiff has no entitlement in law to be awarded Sullivan v Gordon damages.

13. The question I am now required to consider was not directly addressed in any of the judgments in Sullivan v Gordon, though assistance is to be had from various observations of the President. Having discussed the particular situation of the plaintiff in Sullivan v Gordon and having referred to the considerations to be taken into account the President at page 323 went on to say in par 9:

Such considerations may mean that, in other cases, the court will have to make informed hypothetical predictions as to how long a plaintiff, uninjured, would have cared for another member of his or her household.
At par 10 he said:
The questions remain. What is it that is really compensated? And what are the limits of recovery?
Par 11:
A mother’s need to care or ensure care for a child is necessarily at its inception at least, owed to a family member of the mother’s household.
At par 15 on 324:
This case does not involve the issue of a plaintiff’s ‘ need ’ to care for persons other than his or her own children. Different considerations probably apply in the case of persons for whom no legal obligation of care exists and who are not members of the plaintiff’s household being cared for at the time of the accident (for example, aging parents). The right recognised here almost certainly does not involve exclusively moral obligations of care of persons outside the immediate household.

14. Mr McIntyre of Senior Counsel says that the law as it presently exists does not authorise the award of Sullivan v Gordon other than in respect of a child. It is, as I have noted, correct that the question I am required to answer was not addressed by the Court of Appeal. However, the reference by the President to “moral obligations” and “immediate household” suggests to me that Sullivan v Gordon damages are available in respect of any person who is a member of a plaintiff’s household, that is to say anyone ordinarily residing with a plaintiff in his or her home as a member of his or her family. Mrs Rogers clearly falls into that category and in my view Sullivan v Gordon authorises an award of damages in respect of the care given by the plaintiff to her.

15. The allowance of one hour was made, again adopting a broad brush approach, precision being impossible to achieve. Throughout much of his healthy months following the arrival of his mother-in-law, the plaintiff spent time at his holiday home scuba diving and fishing. Accordingly, an allowance of one hour was made as that which, doing the best I could, represented the average weekly time he devoted to her needs.

16. The use of the word “need” in par 15 in Sullivan v Gordon serves, in my view, to negate the submission of Mr Rundle of counsel for the sixth defendant that the need must be a real need in the plaintiff to perform the work. The fact that the word is quoted, or, more accurately, used in inverted comas, suggests there is some degree of artificiality and that there is no better word than “need” to convey the meaning. Sullivan v Gordon expenses should be allowed until 25 July 2002, the presumed date of the plaintiff’s death.

17. The rate at which the care given by the plaintiff to his mother-in-law should be allowed should be $16 an hour, the same which was allowed in respect of the Griffiths v Kerkemeyer component.

18. I invite counsel to prepare short minutes and to calculate the judgment amount in accordance with the findings I have made.

19. I defer entering judgment until the matters have been calculated and the parties have agreed upon the calculations, and before then, if application is made, give leave to the defendants to issue cross-claims.

Mr D G Letcher, QC instructed by Turner Freeman appeared for the plaintiff

Mr J A McIntyre, SC instructed by Piper Alderman appeared for the first defendant

Mr J Bartos instructed by Middletons Moore & Bevins appeared for the second, third and fourth defendants

Mr J Sleight instructed by Phillips Fox appeared for the fifth defendant

Mr G P R Rundle instructed by Hickson Wisewoulds appeared for the sixth defendant