David Anthony Morgan v BI (Contracting) Pty Ltd

[2004] NSWDDT 43

Dust Diseases Tribunal

of New South Wales

CITATION:	David Anthony Morgan v BI (Contracting) Pty Ltd and anor [2004] NSWDDT 43
PARTIES:	David Anthony Morgan BI (Contracting) Pty Ltd Clifton Financial Services Pty Ltd
MATTER NUMBER(S):	70 of 2004
JUDGMENT OF:	Curtis J at 1
CATCHWORDS:	Damages :-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	29th October 2004
EX TEMPORE JUDGMENT DATE :	10/29/2004
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr D G Letcher QC instructed by Turner Freeman Solicitors FOR DEFENDANT: Mr A Ventura instructed by Makinson and d'Apice appeared for the first defendant Mr G P F Rundle instructed by Lee and Lyons Lawyers appeared for the second defendant

JUDGMENT:

Dust Diseases Tribunal of New South Wales

Matter Number DDT70 of 2004

David Anthony Morgan

v

BI (Contracting) Pty Ltd

and

Clifton Financial Services Pty Ltd

29 October 2004

JUDGMENT

CURTIS J

1. The plaintiff, David Anthony Morgan, was born on 2 July 1946 and will probably die on about 30 March 2005. He has contracted the disease of mesothelioma in consequence of exposure to asbestos dust and fibre in the employ of Clifton Financial Services Pty Ltd (formerly known as John Martin & Co Ltd), a department store in Rundle Street, Adelaide.

2. The source of the asbestos dust and fibre was renovation works carried out by BI (Contracting) Pty Ltd (formerly Bradford Insulation Contracting Pty Ltd) the first defendant. He sues this company and also his employer who failed to take steps to protect him from inhalation of the fibres. I am satisfied that the source of the asbestos was from the works of Bradford Insulation and that each defendant owed a duty to the plaintiff and unreasonably failed to protect him from the effects of the dangerous fibres.

3. Mr Morgan was well until 2002 when he developed a dry cough followed by pain in his right side spreading to his back. The pain got progressively worse as did his cough. He developed a build up of fluid in his lung and was admitted to Royal Adelaide Hospital in July 2003 where 1.7 litres of fluid was drained. After further hospitalisation he underwent a biopsy and a video assisted thoracotomy and talc pleurodesis. These procedures are notoriously painful. On 30 July 2003 Dr Jurisevic informed Mr Morgan of his diagnosis. He was understandably distraught. Mr Morgan has had six cycles of chemotherapy and more are to follow. Each cycle is followed by severe nausea. Mr Morgan developed shingles due to attacks upon his immune system. He has suffered much and further suffering awaits him.

4. The major part of the suffering, notwithstanding the physical pain and discomfort which he has felt to date has been mental, he is bitter, disillusioned and understandably angry. He has lost completely his libido and all motivation. He sleeps badly due to a combination of his pain and his mental turmoil. Because Mr Morgan is only 58 years of age his mental suffering sounds heavier than in persons of more advanced years. I assess general damages in the sum of $190,000. I allow interest on past general damages in the sum of $2,500. I allow loss of expectation of life in the sum of $22,000 and past out of pocket expenses $1,000.

5. At the time of his diagnosis Mr Morgan was employed as a chauffeur at the rate of about $380 per week net. He stopped work in December 2003. Because of the probable effect of inflation, I calculate past and future wage loss at the rate of $400 per week net, so that past wage loss amounts to $9,300 and future wage loss, discounted by only 10 per cent because of the short period, at $120,000. I allow past Griffiths v Kerkemeyer in the sum of $10,000 and future Griffiths v Kerkemeyer in the sum of $10,192. None of these figures is contentious. I allow a sum for therapeutic aids at $3,000.

6. The only remaining area in which there is any real contest relates to future hospital and medical expenses. The last three weeks of Mr Morgan's life will probably be in a hospice and the appropriate award in respect of that period is agreed at $10,500.

7. Professor Alpers assesses future medical expenses in the sum of approximately $33,000. However, much of his allowance is taken up by an allowance of 20 days for hospitalisation for complications totalling $20,000. There has to be a degree of speculation in relation to that sum. I allow $25,000 including hospice care.

8. Verdict and judgment for the plaintiff against the defendants in the sum of $392,992.

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

Mr A Ventura instructed by Makinson and d’Apice appeared for the first defendant

Mr G P F Rundle instructed by Lee and Lyons appeared for the second defendant