David Joliffe Robert Munro v Commonwealth of Australia

[2001] NSWDDT 7

Dust Diseases Tribunal

of New South Wales

CITATION:	David Joliffe Robert Munro v Commonwealth of Australia [2001] NSWDDT 7
PARTIES:	David Joliffe Robert Munro Commonwealth of Australia
MATTER NUMBER(S):	292 of 2001
JUDGMENT OF:	Curtis J at 1
CATCHWORDS:	Damages :-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	25th September 2001
EX TEMPORE JUDGMENT DATE :	10/17/2001
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr G Little instructed by Alex Stuart and Associates FOR DEFENDANT Mr G P F Rundle instructed by Curch and Grace

JUDGMENT:

1. The plaintiff David Joliffe Robert Munro was employed between 1972 and 1980 as a carpenter with the Works and Building Section of the South Australian Railways and the Australian National Railways. Pursuant to the Railways (Transfer Agreement) Act 1975 (SA) and the Railways Agreement (South Australia) Act 1975 (Cth) and the Australian National Railways Commission Sale Act 1997 (Cth), the Commonwealth has assumed the obligations of the plaintiff's employer.

2. In the course of his employment the plaintiff was exposed to the inhalation of asbestos dust and fibre in consequence of which he has developed the disease of mesothelioma.

3. The defendant has admitted that this exposure to asbestos created a risk of injury reasonably foreseeable to the defendant and that there were means during the relevant time of avoiding that risk.

4. While employment is raised as an issue upon the evidence before me I find the plaintiff was employed by that entity whose obligations have been assumed by the Commonwealth. I do this on the basis of a letter from the Commonwealth Department of Transport and the admissions made in the letter of Church and Grace of 22 August 2001. In those circumstances the plaintiff is entitled to a verdict.

5. The plaintiff was born on 11 May 1940 and is now 61 years old. He retired in 1994 from regular employment and thereafter devoted himself to an active and rewarding retirement. He worked as a volunteer with the Port Dock Station Railway Museum restoring wooden railway carriages. He was an active member of the Masonic Society attending three or four times each month, and he went snow skiing each year in the early nineties, being a member of the South Australian Skiers Association. Notwithstanding his advancing years he used to go rollerblading twice a week to keep fit. In addition to owning a car he owned and enjoyed a powerful XJ900 Yamaha motorbike.

6. Towards the end of 1996 the plaintiff had noticed tightness in his chest and he was running out of puff on activity. This shortness of breath increased and in 1997 he was ultimately referred to Dr Antic, who drained fluid from his lungs. This for a time improved the plaintiff’s breathlessness but he later deteriorated. He was compelled to give away his rollerblading because of breathlessness. The plaintiff found that because of his increasing breathlessness it was difficult to maintain his social obligations with the Masonic Society and the Port Dock Station Railways Museum. By August of 1997 his breathlessness was so significant that he was admitted to hospital by Dr Antic and was there given the devastating news that he had contracted the fatal disease of mesothelioma.

7. Between 1997 and the present time the applicant has at times felt better following procedures to drain fluid from his lungs, however, these procedures did not relieve all of his shortness of breath and he remained tired and without energy. By late 1998 his breathing had deteriorated significantly. He has had at times vast quantities exceeding 6 litres of fluid drained from his lungs and this procedure is very painful. In June 2001 the plaintiff submitted to a pleurodesis. This is a procedure designed to prevent the accumulation of fluid by causing his lung to adhere to the interior of his chest cavity. The procedure takes place by the introduction of talcum as an irritant causing painful irritation and the formation of a fibrous bond. The procedure is notoriously painful.

8. In July this year, his prognosis being hopeless, the plaintiff, who had lived alone in his home, moved into the Kensington Care Facility in Adelaide where he is a resident. He has only days to live. The Kensington Care Facility provides basic nursing care, he lives in a shared room and there is a communal shower. Notwithstanding the good intentions of the staff, who I have no doubt are caring, this is a depressing place in which the plaintiff is to die.

9. The plaintiff never married, however, he is very close to his mother, now aged 86, and his sister. His mother lives in a nursing home and it is obviously difficult for them to see each other in these trying times.

10. The period between the plaintiff's diagnosis and his death is unusually long. Having heard and seen the plaintiff I believe he is of stoic disposition and has understated the pain and distress that has been occasioned to him by the illness and which are recorded in the medical reports before me.

11. I believe a reasonable amount of general damages in this circumstance, given the plaintiff's relative youth and the vigour with which he had approached his retirement to be $180,000.

12. I award interest on the whole of this sum, given the plaintiff's imminent demise at 2 per cent for four years, a figure of $7,200.

13. Loss of expectation of life is a conventional sum, however, it is a sum which should reflect the relative youth of the plaintiff and I award $20,000.

14. Out of pocket expenses are as follows:

Health Insurance Commission (Medicare) $7,074.40.

Mutual Community (Private Medical Insurance) $14,093.60.

The Kensington Care Facility $2,830.16.

15. Mr Rundle for the defendant does not take issue with the assessment of past services totalling $10,150.

16. I enter judgment for the plaintiff in the sum of $241,348.16.

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

Mr G Little SC instructed by Alex Stuart and Associates appeared for the plaintiff.

Mr G P F Rundle instructed by Church and Grace appeared for the defendant.