Crane v Commonwealth of Australia
[2006] NSWDDT 1
•16/02/2006
Dust Diseases Tribunal
of New South Wales
CITATION: Crane v Commonwealth of Australia [2006] NSWDDT 1 PARTIES: John William Crane (Plaintiff)
Commonwealth of Australia (Defendant)MATTER NUMBER(S): 269/02 JUDGMENT OF: O'Meally P CATCHWORDS: Dust Diseases Tribunal :- issue estopple - earlier proceedings in the Administrative Appeals Tribunal - issues in Administrative Appeals Tribunal not identical with issues in the Dust Diseases Tribunal - no issue estopple- asbestos and ARPD - psychiatric disorders - damages assessed LEGISLATION CITED: Dust Diseases Tribunal Act 1989
Veterans Entitlements Act 1986CASES CITED: Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] [1967] 1 AC 853 at 935;
Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 453;
Ramsay v Pigram (1968) 118 CLR 271 at 276;
Tame v New South Wales heard with Annetts and ANOR v Australian Stations Pty Ltd (2002) 211 CLR 317;
Kuligowski v Metrobus (2004) 220 CLR 363DATES OF HEARING: 22 and 23 November 2005; 31 January 2006; 1 and 2 February 2006; 16 February 2006
DATE OF JUDGMENT:
02/16/2006LEGAL REPRESENTATIVES: Mr G F Little SC instructed bt Turner Freeman appeared for the Plaintiff
Mr H J Marshall SC with Ms L P McFee instructed by Australian Government Solicitors
JUDGMENT:
1. This is a claim for provisional damages pursuant to s 11A of the Dust Diseases Tribunal Act.
2. The plaintiff, John Campbell Crane, sues the Commonwealth of Australia alleging that as a result of exposure to asbestos dust and fibre in the course of his service in the Royal Australian Navy between 9 October 1966 and 31 December 1973 he has contracted asbestosis and has pleural plaques. That he suffers mild asbestosis and has pleural plaques are not in issue in the case. What is in issue is whether, as a result of exposure to asbestos, the plaintiff has the psychiatric disorders of depression and an anxiety state and, if so, to what extent and with what consequence.
3. The parties have invited me first to determine whether as a result of proceedings between the plaintiff and the Repatriation Commission the defendant is estopped from denying that the plaintiff suffers the recited psychiatric disorders and as a consequence is totally and permanently incapacitated.
4. The plaintiff brought proceedings before the Repatriation Commission seeking payments under the Veterans Entitlements Act 1986 (The Veterans Act). He failed in those proceedings and appealed to the Veterans Review Board. In those proceedings he also failed. He then appealed to the Administrative Appeals Tribunal (the AAT) which relevantly found that the plaintiff's psychiatric condition was attributable to all exposure to asbestos during his service in the navy, which included operational service, war service and ineligible service. The various forms of service are irrelevant to the determination of any issue committed to me, but were relevant to entitlement to payments under the Veterans Act.
5. Following the decision in his favour in the AAT, the Repatriation Commission appealed to the Full Court of the Federal Court of Australia. The appeal was dismissed. The reasons for the decisions of the AAT and the Federal Court of Australia are before me.
6. In order to raise an issue estoppel in subsequent proceedings, three requirements must be fulfilled. They are:
- (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same person as the parties to the proceedings in which the estoppel is raised or their privies.
- (Per Lord Guest in Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] [1967] 1 AC 853 at 935). It is relevant also to note:
- The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of parties, and it only has temporary authority to decide a matter ad hoc.
7. In the manner in which argument has been advanced there will be an issue estoppel if the AAT determined an issue which is identical to the issue relevantly committed to me. In Ramsay v Pigram (1968) 118 CLR 271 Barwick CJ said at 276:
- The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case.
8. In order to determine whether the issue determined in the AAT is identical with the issue committed to me it is necessary to have regard to the Veterans Act. S 9 (1) relevantly provides:
- …an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) …
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
of the same Act provides:
- A person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; ...
10. As remarked earlier, it is irrelevant to the issues committed to me whether the plaintiff contracted his disease on war service or operational service, but the process giving rise to an entitlement to payments under the Veterans Act is, it seems to me, rather different from the process which must be followed by the plaintiff in connection with what must be established in these proceedings.
of the Veterans Act relevantly provides:
- (1) Where a claim under Pt 2 for a pension in respect of the incapacity from injury or disease of a veteran ... relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury [or] that the disease was a war-caused disease ... as the case may be, unless it is satisfied, beyond reasonable doubt that there is no sufficient ground for making that determination.
(2) …
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease ... related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
- (a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease ...
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, [or] disease ... with the circumstances of the particular service rendered by the person.
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
12. It is relevant also to consider s 120B of the Veterans Act. It applied to the application made by the plaintiff for Veterans Compensation. Relevantly it provides:
- (3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, [or] a disease contracted by a person… was war-caused or defence-caused only if:
(a) the material before the Commission raises a connection between the injury [or] disease ... of the person and some particular service rendered by the person; and
(b) there is in force:
- (i) a Statement of Principles determined under subsection 196B(3) or (12);
(ii) …
- that upholds the contention that the injury [or] disease … of the person is, on the balance of probabilities, connected with that service.
13. In both the reasons of the AAT and the reasons of the Federal Court there are statements to the effect that the plaintiff had established to the satisfaction of the AAT that there was a connection between his psychiatric disease and his relevant service. Relying upon those statements and upon provisions of the Veterans Act, Mr Little of Senior Counsel submits that the issue determined in the AAT and affirmed by the Full Court of the Federal Court is identical with the issue committed to me, namely, that as a result of exposure to asbestos in the course of his service in the navy the plaintiff suffered an injury, in the form of pleural plaques, and an organic disease, being asbestosis, and a diagnosed psychiatric disease, being anxiety and depressive states.
14. I should say that initially I was moved to accept the submissions of Mr Little, but having regard to the processes by which the AAT was obliged to make its determination I have concluded there is no issue estoppel.
15. The AAT was required to determine whether there was a reasonable hypothesis available that there was a connection between the plaintiff's psychiatric condition and his service in the navy. In doing so it was required to have regard to a Statement of Principles determined under subsections (3) or (12) of s 196B. S 196B(3) relevantly provides:
- (3) If the Authority is of the view that on the sound medical – scientific evidence available it is more probable than not that a particular kind of injury [or] disease…can be related to:
(a) eligible war service (other than operational service) rendered by veterans; or
(b) …
the Authority must determine a Statement of Principles in respect of that kind of injury [or] disease … setting out;
(c) the factors that must exist; and
(d) which of those factors must be related to service rendered by a person;
before it can be said that, on the balance of probability, an injury [or] disease … of that kind is connected with the circumstances of that service.
- S 196B(12) relevantly provides:
- (12) If, after reviewing a decision of the Authority not to determine a Statement of Principles under subsection 196B(3) in respect of a particular kind of injury [or] disease …, the Review Council has, by a decision notified in the Gazette, directed to the Authority to make such a Statement of Principles, the Authority must determine a Statement of Principles in respect of that kind of injury [or] disease … setting out, in accordance with the directions of the Council:
(a) the factors that must exist; and
(b) which of those factors must be related to service rendered by a person;
before it can be said that, on the balance of probabilities, an injury [or] disease … of that kind is connected with the circumstances of that service.
Thus the AAT was obliged to decide in favour of the plaintiff unless it was satisfied beyond reasonable doubt that there was no sufficient ground for determining that his disease was war-caused. On the other hand, what I am required to do is to consider whether, as a result of exposure to asbestos, the plaintiff suffered additionally to his pleural plaques and asbestosis, a diagnosed psychiatric condition (see Tame v New South Wales heard with Annetts and ANOR v Australian Stations Pty Ltd (2002) 211 CLR 317). In the AAT the Repatriation Commission carried an onus to negative beyond reasonable doubt, that there was no sufficent ground for determining that the plaintiff had a war-caused injury or disease which was related to his operational service. Here, the plaintiff carries an onus to prove his case on the balance of probabilities.
16. Mr Little submits that the words quoted from s 120B(3), that is to say that the injury [or] ... disease of the person is on the balance of probabilities, connected with that service imposed upon the AAT the same function and task as is imposed upon me. However, as I read s 120B(3) the Statement of Principles must be examined to see whether, on the balance of probabilities, a disease of the type alleged is connected with the service. S 120B(3) relates also to the Statement of Principles which is not specific to the plaintiff. The use of the word that after s 120B(3)(b)(ii) seems to relate to the Statement of Principles in par (b), rather than to the material in par (a). I am not to approach the plaintiff's entitlement in that way. Because the issue committed to the AAT was not identical with the issue committed to me I have concluded there is no issue estoppel.
17. It was put to me on behalf of the defendant that proceedings in the AAT never give rise to an issue estoppel. Whilst doubting the correctness of that submission it is, in the light of the conclusion to which I have come, unnecessary to consider it (see Kuligowski v Metrobus (2004) 220 CLR 363).
18. I shall now hear argument on the plaintiff's entitlement to damages and whether and if so to what extent those damages are to be affected by the presence of a psychiatric condition.
Mr G F Little (SC) instructed by Turner Freeman appeared for the Plaintiff
Mr H J Marshall (SC) with Ms L P McFee instructed by Australian Government Solicitors appeared fror the Defendant
I certify that the previous 18 paragraphs
Are the reasons for Judgment of His Honour
Judge O’Meally
Associate
Dust Diseases Tribunal of New South Wales
Matter Number DDT269 of 2002
John Campbell Crane
v
Commonwealth of Australia
16 February 2006
JUDGMENT
O'MEALLY P
1. Having determined on 2 February last that proceedings brought by the plaintiff in the Administrative Appeals Tribunal did not give rise to an issue estoppel, I invited argument from counsel on the plaintiff's entitlement to damages and whether the plaintiff suffered from a psychiatric condition. Counsel then sought and obtained an adjournment in an endeavour to reach agreements and to isolate areas of disagreement affecting the plaintiff’s entitlement to damages. Though the further hearing of the case was twice thereafter appointed to occur, the hearing was adjourned until today because all the material necessary to complete the investigations was not available. To a large degree agreement has now been reached, and for the agreements reached and the compromises made in order to reach them, I am grateful.
2. There remain two areas in respect of which agreement has not yet been reached. They are, first, whether an amount paid to the plaintiff by his employer at the time he ceased employment, pursuant to a sickness and accident policy, is an amount in respect of which no adjustment of damages is to be made. That will depend upon the terms of the policy which have not yet been identified. Associated with this is lost superannuation benefit. The second matter is whether the plaintiff should have included in his damages an amount for future medical expenses. The reason that agreement has not been reached on that matter is that further examination of both legislation and policy needs to be undertaken in order to determine whether, what is called a “Veteran's Gold Card" will entitle the plaintiff to receive his future medical treatment at no cost to himself. The parties sensibly have agreed that in the event that these matters need to be considered an application may be made to the Tribunal pursuant to s 13(6) of the Dust Diseases Tribunal Act.
3. I indicated on 2 February last that there was no issue that the plaintiff had pleural plaques and was suffering mild asbestosis. The issue now to be considered is whether, as a result of exposure to asbestos the plaintiff developed depressive and anxiety states, and if so whether, as a consequence, he was and remains totally incapacitated for work.
4. The defendant disputes that the plaintiff did and does suffer from any psychiatric condition. That submission is based upon what it says was a failure by the plaintiff to reveal certain matters to psychiatrists to whom he was referred, either for treatment or for opinion. These are three in number. First, his failing to inform a psychiatrist that he was, at the time of consultation, in a relationship with a woman and had been for some time. Secondly, that he had a fear of bowel cancer. Thirdly, that he did not reveal that he had an inclination towards suicide. I do not regard these omissions as being of such significance as to undermine the opinions of those psychiatrists which are in evidence, both from the plaintiff and from the defendant, for reasons I will later give.
5. It is, I think, desirable to give a brief description of the plaintiff's life and his work history because these matters will be of significance in addressing the question of the consequence of his psychiatric condition.
6. The plaintiff was born on 17 January 1951 and grew up in Tasmania. In 1966, at the age of 15½ years, he left school and joined the Royal Australian Navy. As remarked on 2 February, he served in the Navy from 9 October 1966 to 31 December 1973. He was a stoker. Stokers work in the engine rooms of ships. He served on several of Her Majesty's Australian Ships and had considerable exposure to asbestos. It was common throughout the years of his service that asbestos particles became friable and fell from pipes and other surfaces to which asbestos lagging had been applied. It was common also for the plaintiff to remove lagging and to mix asbestos and water into a slurry in order to lag pipes and other areas from which lagging had been removed.
7. Upon leaving the Navy in 1973, the plaintiff was employed as a fireman at Devonport Airport in Tasmania and in 1975 he married for the first time. That marriage lasted for seven years and a significant reason for its breakdown was excessive consumption of alcohol by both the plaintiff and his wife. By 1973 he was, in his own view, consuming alcohol to an excessive degree, and it seems that alcohol consumption was the catalyst for his leaving the Navy. The plaintiff's first marriage was dissolved in 1982.
8. In 1984 he purchased a security business and carried out security services, still in the Devonport area. He was married for the second time in 1985. This marriage, like the first, lasted for seven years before the plaintiff and his second wife separated and the marriage was dissolved. From his first marriage he has a daughter and from his second a son and a daughter.
9. In 1986 the plaintiff obtained employment as an advertising salesman with radio station 7AD in Devonport and in 1987 changed his occupation to crane chaser when he was employed by Australian Pulp and Paper Mills. This work was physical in nature though performed with mechanical assistance.
10. Whilst he was working for this employer he saw a television program, "60 Minutes". The program concerned asbestos disease in former members of the Navy and featured an old shipmate, one "Sooty" Bennett, who, seemingly, was suffering from mesothelioma. The plaintiff's evidence is that this program disturbed him considerably and following it he experienced a variety of reactions including loss of appetite, disturbed sleep and disturbing dreams. He consulted a doctor, a chest x-ray was ordered, but it revealed no abnormality.
11. In 1990 the plaintiff moved to Townsville and there was employed by radio station 4TO, again selling advertising. Between 1991 and 1993 he operated his own business providing a nappy wash service for the mothers of young children. In 1992 and until 1994 he again obtained employment selling advertising for the WIN television network, whilst continuing to operate the nappy service. In 1994 he opened his own fish shop business and in the same year he returned, for a short period, to 4TO selling advertising.
12. Between 1994 and 2000, the plaintiff was employed by Channel 7 in Townsville as what has been described as a sales account executive. He again sold advertising. In this employment the plaintiff received a relatively low base salary, but he also received a commission on advertising sold. I think it fair to say that the plaintiff was quite successful in selling advertising and at the time of his ceasing work in 2000 his taxable earnings were in excess of $100,000.
13. It is of some, but slight, significance that the plaintiff's daughter, Shelley, from the first marriage, was a member of the Navy for five years between 1995 and 2000 and some of his disturbing dreams involved her exposure to asbestos on Naval ships.
14. In the period between seeing the television program in which “Sooty” Bennett appeared and 1999 the plaintiff became concerned that he also might develop an asbestos-related disease. His concern was sufficient to cause him to seek and obtain assistance from the Vietnam Veterans' Counselling Service in Townsville, and also to see a psychologist under the auspices of his employer, Channel 7.
15. In 1999 the plaintiff lodged a claim for veteran's compensation with the Military Compensation and Rehabilitation Service, and following that claim the plaintiff was referred to Dr Michael Likely, a psychiatrist who practices in Townsville. The plaintiff was referred for x-ray, and successive x-ray examinations took place. Those x-rays revealed nothing of significance until 3 May 2000 when pleural plaquing was evident. A further radiological examination in June 2000 revealed that plaques covered 30 per cent of the pleural surfaces.
16. I have recited, but I think it appropriate to note again, that it is not disputed that the plaintiff has pleural plaques and mild asbestosis. Neither is it disputed that the condition of asbestosis is likely to progress, indeed that is the nature of asbestosis. Nevertheless, in view of the facts that the plaintiff's last exposure was in 1973, that the degree of asbestosis observed in 2000 was slight, and that its progression between 2000 and the present time has also been slight, I am of the view that the progression will not be great. Doctors qualified by both parties have expressed the opinion that as a consequence of the asbestos disease the likelihood is that the plaintiff's life expectancy has been reduced by five years, a period much less than one commonly sees in cases of asbestosis.
17. The significant considerations now relate to the plaintiff's psychiatric state and whether as a consequence he is both totally and permanently incapacitated for work and has been at all times since ceasing work.
18. Dr Likely gave evidence and provided a number of reports. The history he obtained was generally in accordance with what has been recited. Dr Likely’s first report was directed to an officer of the Military Compensation and Rehabilitation Service on 12 January 2000. He then expressed the view that the plaintiff was suffering a major depressive disorder. He noted that the treatment of his mental health disturbance had taken the form of a combination of pharmacotherapy and psychotherapy. The pharmacotherapy had been prescribed by the plaintiff’s general practitioner, Dr Vince, and the plaintiff had also seen the psychologists to whom reference has been made. Dr Vince had prescribed anti-depressant drugs. According to a questionnaire accompanying his first report, Dr Likely thought the plaintiff could continue employment.
19. On 21 June 2000, Dr Likely reported to Dr Vince following a consultation the same day. Examination then revealed the plaintiff to be of ongoing depressed mood, restricted affect and depressive cognition. Dr Likely thought the time was coming when the plaintiff would have to cease work. In September 2000, following radiological investigation that revealed asbestos changes, Dr Likely said that the plaintiff continued to suffer significant symptoms of a major depressive order which were affected by the results of the radiological investigations carried out in May of the same year. At that stage he thought the prognosis to be guarded. On 6 October 2000, Dr Likely expressed the view that the plaintiff's depressive illness and anxiety disorder rendered him totally and permanently incapacitated from undertaking any type of remunerative employment. In November 2000, having commented that the plaintiff had become suicidal, he recorded that the plaintiff had been forced to cease work. It was Dr Likely who strongly urged the plaintiff to cease work and the plaintiff accepted and followed the advice given to him. At that stage, noted Dr Likely, his anti-depressant medication, Venlafaxine, had been increased to 400 milligrams daily, a relatively high dose.
20. Dr Likely has continued to see the plaintiff, though with less frequency of recent times because the plaintiff has formed an association with a lady and he alternates between Thailand, of which country she is a native, and Australia. Since forming the relationship his depression has gone into remission and his anxiety is much less. His alcohol consumption has been reduced. At various stages though, he continued to self medicate with alcohol, and it in turn adversely affected his depression and anxiety. It is true that there are some, but as I view them, insignificant errors of fact, in Dr Likely's reports. I say they are insignificant because they do not affect his diagnosis and the ultimate conclusion to which he has come. I take the same view of the failure of the plaintiff to mention to at least one psychiatrist the three matters earlier referred to.
21. In April 2004, Dr Likely reported to a Senior Delegate in the Department of Veterans' Affairs, expressing the view that the plaintiff continued to suffer from a major depressive disorder and a generalised anxiety disorder, both of which were secondary to his asbestos disease and on 24 May 2005 he again expressed the view that the plaintiff would never be able to resume paid employment in the future.
22. While giving evidence, Dr Likely, who at that stage had not seen the plaintiff for some time, was given further information concerning the plaintiff's activity of recent times and in particular of his relationship with his Thai lady friend and his visits to Thailand. It was upon this information that Dr Likely conceded that the plaintiff's depression was in remission and that his anxiety was less. When asked about the future and in particular the plaintiff's capacity to return to remunerative employment, Dr Likely said that it was probable that if he did so his psychiatric condition would again become florid; that it would recur. When asked whether the risk of the plaintiff’s depression recurring could be expressed in percentage terms, Dr Likely answered that it would be well over 50 per cent.
23. Before I consider the effect of that evidence I think it appropriate briefly to refer to the opinion of Dr Michael Leong, contained in a report provided to the defendant on 24 June 2005. Dr Leong thought the plaintiff's prognosis both in the short term and long term was guarded because of the chronicity of his disorder and the limited treatment response. He thought litigation might be affecting the plaintiff's presentation. From a psychiatric perspective Dr Leong thought the plaintiff had a chronic and moderately severe psychiatric illness which would require ongoing psychiatric specialist attention and treatment. He thought that therapy and treatment might improve symptoms, but a further examination and report would be required before an opinion could be expressed in that regard. Dr Leong had no such further consultation and no further report was provided and, on that evidence it is therefore not appropriate to make a finding that the plaintiff will improve so that he could resume work.
24. The question to be determined is whether the plaintiff, to the present, has been totally incapacitated for work. In my view he has.
25. It is true that the plaintiff is being successfully treated in that his depression is in remission and his anxiety is less, but the probability is that had he returned to work his psychiatric condition would once again have become florid. He has been treated, but not cured. The plaintiff’s employment history is one of regular work, and sometimes and most lately, of work involving some stress. This history operates to negate the suggestion that the plaintiff is dissembling and engaging in invention or exaggeration for the purpose of financial gain.
26. As to the future, I have been invited by senior counsel for the defendant to assess the plaintiff’s entitlement to damages for loss of earning capacity by reference to the risk that his psychiatric disorders will again become florid. This approach, it is submitted, is the one that is required by reason of the decision of the High Court of Australia in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638. The relevant part is in the joint judgment of Deane, Gaudron and McHugh, JJ at 643:
- …the Court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability.
27. What we are concerned with here is not so much the occurrence of an event, but whether, by reason of a subsisting psychiatric disorder, the plaintiff has lost his capacity to earn. It seems to me that what Dr Likely was saying in evidence was that, if the plaintiff returns to work it is probable he will have such an adverse psychiatric reaction that his depression and anxiety will recur in such a way that he remains unfit to return to work. The question does not involve the happening of a particular event, in the sense that the Justices of the High Court of Australia were considering an event in Malec. The question here is whether the plaintiff's capacity to earn has been destroyed. It is, I think, reasonable to adopt the approach and the opinion of Dr Likely. In doing so I am satisfied that the plaintiff's capacity to work in the future has been destroyed.
28. Earlier I mentioned that agreements had been reached between the plaintiff and defendant relating to some of the heads of damages and to the fact that in respect of others calculations have been agreed, but the entitlement has not. Other sums were agreed which would be awarded depending upon conclusions to which I might come.
29. I shall recite those matters which have been agreed and identify those in respect of which, in the light of the findings I have made, further calculations might now be made. General damages are agreed in the sum of $100,000. Interest on general damages should run from 12 January 2000, that being the date upon which diagnosis of psychiatric disorder was made. It will be recalled that at that stage there was no evidence of abnormality demonstrated on radiological examination. Interest on general damages should be allowed on half the sum awarded.
30. It has been agreed that a sum appropriate for loss of expectation of life is $10,000.00. It has also been agreed that the reimbursement due to the Health Insurance Commission is $422.80. The Department of Veterans' Affairs is entitled to reimbursement of $846.25.00. These sums should be awarded.
31. An amount of $4,225.00 should be allowed, this sum to be reimbursed to the Military Compensation and Rehabilitation Service. The Fox v Wood [(1981) 148 CLR 438] component is agreed at $41,483.44. Past economic loss in the light of the findings I have made is agreed at $341,942.50, and interest on that is agreed at $49,000.00. Griffiths v Kerkemeyer [(1977) 139 CLR 161] expenses are agreed at $20,000.00.
32. What now remains to be considered is an amount appropriate to award to the plaintiff for loss of earning capacity. Again, an agreed calculation has been made though the entitlement to the sum so calculated is disputed. That amount is $591,679. This needs to be adjusted by taking vicissitudes into account. Mr Little SC for the plaintiff, urges that I apply the usual 15 per cent discount. On the other hand, Mr Marshall SC submits an appropriate discount figure, in the circumstances of this case is 30 per cent.
33. The factors upon which 30 per cent is submitted to be appropriate are that the plaintiff suffers or is affected by a number of unrelated and non-compensable disorders. The first of these is the plaintiff's alcohol abuse. In respect of that it is appropriate once again to note that the plaintiff does have a history of unrelated alcohol abuse as well as alcohol abuse consequent upon his compensable psychiatric disorder and his attempt to self medicate. Alcohol abuse while in the Navy and during his first marriage, cannot be totally ignored. It seems that at the present time the plaintiff has his alcohol intake under control, but it is a factor which must be taken into account.
34. The plaintiff has experienced gastrointestinal disorders and there is some opinion to suggest that in part at least faecal incontinence has been affected by his anxiety state. It is relevant to note that the plaintiff has undergone a colonoscopy and colonic polyps have been discovered and removed. There is no evidence that these related to any compensable feature of his case and the likelihood is that they are unrelated
35. It is relevant also to note that the plaintiff has suffered cardiovascular disease and in 2003 underwent coronary artery by-pass surgery. In respect of his cardiovascular disease there is opinion that his respiratory symptoms, such as they are, are not affected by his heart condition. Nevertheless, coronary artery disease is a factor which must be taken into account in determining his future. Other factors to be considered are that the plaintiff has been obese and that he suffers sleep apnoea, each of which is unrelated to his present condition and each could affect the nature and duration of his working life.
36. Taking those matters into account I have come to the view that a figure greater than 15 per cent should be applied for vicissitudes and in my view the appropriate figure in the circumstances of this case is 25 per cent.
37. Thus the plaintiff is entitled to damages made up as follows:
- General damages $100,000.00
Interest on general damages $6,000.00
Loss of expectation of life $10,000.00
Health Insurance Commission repayment $422.80
Reimbursement to Department of Veterans' Affairs $846.25
Military Compensation and Rehabilitation reimbursement $4,225.00
Fox v Wood component $41,483.44
Past economic loss $341,942.50
Interest on past economic loss $49,000.00
Loss of earning capacity $443,759.25
Griffiths v Kerkemeyer expenses $20,000.00
Making a total of $1,017,681.24
38. The parties may apply in respect of future medical expenses, superannuation and lump sum payable for sickness and accident.
39. Pursuant to s 11A of the Dust Diseases Tribunal Act I order that the plaintiff may claim further damages should he develop mesothelioma, asbestos induced carcinoma or lung cancer.
40. The defendant will pay the plaintiff's costs as agreed or assessed.
41. There will be verdict and judgment for the plaintiff in the sum of $1,017,681.24.
Mr G F Little SC instructed by Turner Freeman appeared for the plaintiff
Mr H J Marshall SC with Ms L P McFee instructed by Australian Government Solicitor appeared for the defendant
I certify that the previous 41 paragraphs
Are the reasons for Judgment of His Honour
Judge O’Meally
Associate
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