Clyne v State Rail Authority of New South Wales

[2005] NSWDDT 4

Dust Diseases Tribunal

of New South Wales

CITATION:	Clyne v State Rail Authority of New South Wales [2005] NSWDDT 4
PARTIES:	John William Clyne State Rail Authority of New South Wales
MATTER NUMBER(S):	240 of 2004
JUDGMENT OF:	Curtis J at 1
:-
DATES OF HEARING:	16/02/05
EX TEMPORE JUDGMENT DATE:	02/16/2005
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Ms H Wall instructed by Low Doherty and Stratford. FOR DEFENDANT: Mr A Parker instructed by Moroney Betts

JUDGMENT:

1. John William Clyne sues the State Rail Authority for damages as a result of his contracting the disease of mesothelioma from asbestos inhalation during the course of his employment with the defendant between 1962 and 1975. The defendant has not raised liability as an issue and the task before me is an assessment of damages.

2. Mr Clyne was born in Katoomba on 2 January 1947 and is now 57 years of age. Having retired from the service of the defendant in 1990, he has held a variety of positions as a driver and storeman. He was in good health until October 2003 when he commenced to feel shortness of breath. He was subsequently admitted to Blacktown Hospital for pleural aspirations and has had a course of radiotherapy and also chemotherapy. His prognosis is hopeless and understandably he has suffered greatly from depression and anxiety.

3. He has a daughter and two grandchildren and expresses his profound disappointment that he will not have the advantage of seeing them grow. He suffers from pain which increases on breathing. He sleeps little. It is probable that Mr Clyne will die on or about, for the purpose of calculation, 1 September 2005.

4. I set general damages in the sum of $190,000.

5. I allow interest on $150,000 for 18 months at the rate of 2 per cent, which is $4500.

6. I allow $25,000 in respect of loss of expectation of life.

7. For past Griffiths v Kerkemeyer, I allow eight hours per week at $20 which amounts to date to $8160. Future Griffiths v Kerkemeyer is agreed in the sum of $20,000.

8. Mrs Donna Clyne, the plaintiff's wife, is not in good health. She suffers from a condition of mild lupus, which in the opinion of Dr David Macauley, is unlikely to deteriorate.

9. Although so suffering, Mrs Clyne is able to manage her normal household chores, although her husband normally undertakes the heavier duties, particularly in the garden. I accept that Mrs Clyne required the services of her husband in respect of the heavier duties. Also, because of her condition of agoraphobia, company when she is distressed when out of doors.

10. It is probable that Mr Clyne would not be performing the heavier work in the garden at the age of 77 and I allow 20 years of one and a half hours per week at $20, which amounts to $23,625.

11. Past economic loss is agreed at $26,010. Future economic loss until the age of retirement is agreed at $85,000. In addition, I allow $20,000 as a buffer against the contingency that Mr Clyne would perform some work after the age of 65.

12. I allow home modifications in the sum of $1553.

13. Past out of pockets are agreed in the sum of $4200. Future out of pockets are agreed in the sum of $5000.

14. Judgment for the plaintiff for $413,048.

15. The defendant is to pay the plaintiff's costs.

Ms H Wall instructed by Low Doherty and Stratford appeared for the plaintiff

Mr A Parker instructed by Moroney Betts appeared for the defendant