Dib v Amaca

[2017] NSWDDT 6

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:	Dib v Amaca Pty Limited [2017] NSWDDT 6
Hearing dates:	31 July 2017, 1-4 August 2017, 9-10 August 2017
Date of orders:	22 August 2017
Decision date:	22 August 2017
Before:	Judge D. Russell
Decision:	1. Judgment for the plaintiff for $553,538. 2. Order the defendant to pay the plaintiff’s costs. 3. If either party seeks some different order to that usual costs order, then I grant liberty to the parties to file further written submissions limited to the question of costs as follows: (a)   Party seeking a different costs order to file and serve written submissions within 14 days of this judgment; (b)   Party opposing such costs order to file their written submissions in reply within a further 14 days; (c)   The question of any different costs order is to be dealt with on the papers, unless any party requests the opportunity to make oral submissions.
Catchwords:	DUST DISEASES – exposure – damages DAMAGES – loss of receipt of pension – deduction for savings in the “lost years”
Legislation Cited:	Civil Liability Act 2002 Workers Compensation Act 1987 Dust Diseases Tribunal Act 1989
Cases Cited:	Zanetic v Amaca Pty Limited [2017] NSWDDT 5 The National Insurance Company of New Zealand Limited v Espagne [1961] HCA 15; 105 CLR 569 Graham v Baker [1961] HCA 48; 106 CLR 340 Teubner v Humble [1963] HCA 11; 108 CLR 491 Oliver v Ashman [1962] 2 QB 210; [1961] 3 All ER 323 Skelton v Collins [1966] HCA 14; 115 CLR 94 Sharman v Evans [1977] HCA 8; 138 CLR 653 Todorovic v Waller [1981] HCA 72; 150 CLR 402 Fitch v Hyde-Cates [1982] HCA 11; 150 CLR 482 Haines v Bendall [1991] HCA 15; 172 CLR 60 Medlin v The State Government Insurance Commission [1995] HCA 5; 182 CLR 1 Husher v Husher [1999] HCA 47; 197 CLR 138 CGU Workers Compensation (NSW) Limited v Garcia [2007] NSWCA 193; 69 NSWLR 680 Pickett v British Rail Engineering Limited [1980] AC 136; [1979] 1 All ER 774; Adsett v West [1983] 1 QB 826; 2 All ER 985 Gabriel v Nuclear Electric PLC [1996] PIQR Q1 Phipps v Brooks Dry Cleaning Services Limited [1996] PIQR Q100 Harris v Commercial Minerals Limited [1996] HCA 49; 186 CLR 1 CSR Limited v Eddy [2005] HCA 64; 226 CLR 1 James Hardie & Coy Pty Limited v Roberts [1999] NSWCA 314; 47 NSWLR 425 Kallouf v Midis [2008] NSWCA 61 Latz v Amaca Pty Limited [2017] SADC 56 Lynch v Amaca Pty Limited [2004] NSWDDT 1 Roberts v Amaca Pty Limited [2009] NSWDDT 28
Texts Cited:	Law Commission Report No. 56 “Tobacco Smoking and All-Cause Mortality in a large Australian cohort study: Findings from mature epidemic with current low smoking prevalence”, BMC Medicine (2015) 13:38
Category:	Principal judgment
Parties:	Fred Dib (plaintiff) Amaca Pty Limited (formerly James Hardie & Coy Pty Ltd) (defendant)
Representation:	Counsel: P Semmler QC (plaintiff) S Tzouganatos (plaintiff) D Priestley SC (defendant) J Sheller (defendant)   Solicitors: Turner Freeman Lawyers (plaintiff) Mills Oakley (defendant)
File Number(s):	DDT 275/2016

Judgment

INTRODUCTION

1. This matter was heard at the same time as the unrelated matter of Londos v Amaca Pty Limited DDT 236/2016. The cases raised a common legal issue. Further, evidence as to the likely course of mesothelioma was received in both cases.

2. The plaintiff brought proceedings against Amaca Pty Limited by a Statement of Claim filed on 26 October 2016. His allegation is that between 1975 and 1984 he worked as a plumber, and during that time he was exposed to James Hardie asbestos cement products.

3. The plaintiff suffers from left-sided malignant pleural mesothelioma. His symptoms first appeared in late 2015.

4. The plaintiff was born on 15 March 1940 and is presently 77 years of age. He retired in 2011 at age 73 and since then has been in receipt of the age pension.

5. The defendant raised the following issues:

1. Exposure to James Hardie product;

2. If exposure to James Hardie product is proved, then existence of duty of care, breach of duty of care and causation is admitted;

3. Damages.

6. On the question of damages, the cases throw up a novel issue for decision. If a plaintiff is deprived of future wages or future income from exercising his or her earning capacity, then the law awards damages for loss of that earning capacity.

7. The plaintiff had not exercised any earning capacity since he retired at age 73 years. His claim for economic loss is that because he will die early from his disease, he has lost the receipt of the Commonwealth age pension for his “lost years”. The legal issue in the case is whether or not such a loss is compensable.

8. The defendant Amaca Pty Limited (“Amaca”) filed a cross-claim against Seltsam Pty Limited (“Seltsam”). That cross-claim was severed and the plaintiff’s claim against Amaca proceeded to hearing.

THE PLAINTIFF UP TO RETIREMENT

9. The plaintiff was born on 15 March 1940 in Tripoli in Lebanon. He left school at the age of 12. He did some retail work and was then an apprentice motor mechanic. He worked as a storeman for a few years. He then worked as a cabinet maker. At about the age of 15 he started working as an apprentice plumber in Tripoli. He worked in that job for 4-5 years.

10. The plaintiff then worked for a different plumber in Tripoli for a few years. In his early twenties the plaintiff worked as a self-employed plumber in a small town Sceka. He then returned to Tripoli and worked as a self-employed plumber until he came to Australia. He had no asbestos exposure at all in Lebanon.

11. The plaintiff came to Australia in May 1974 on his own. He was then 34 years old. He met his wife Lody in Australia and they were married on 6 May 1978. There are three children of the marriage being a son Geoffrey born in 1979, a son Steven born in 1980 and a daughter Nicole born in 1986. The plaintiff has eight grandchildren.

12. The plaintiff took a factory job in Australia to learn how to weld. In 1975 he started work as a plumber with Ian St Baker. He worked for Mr St Baker for 5-6 years. That was his first exposure to asbestos. He cut vents through fibro eaves. He installed small corrugated asbestos cement sheets, mostly on garages. Most of his exposure came through cutting and working with thick asbestos cement sheets. They had to be cut with a power saw or an angle grinder or drilled with an electric drill. This was very dusty work. During his time with Mr St Baker he inhaled a lot of asbestos dust.

13. The plaintiff also worked during that time with asbestos pipes which he cut with an angle grinder. He worked with Villaboard in kitchens, cutting it using fibro cutters. Sometimes he used a power saw.

14. Between mid-1980 and mid-1983 the plaintiff worked as a plumber for Eddie Saddie. There was not as much fibro work, but he still cut and drilled compressed asbestos cement sheets used on floors in wet areas.

15. From mid-1983 to October 1987 the plaintiff worked in partnership with Steve Appleby. There was a bit of fibro work. From October 1987 to 2011 he worked for himself using a company called Sonete Pty Limited. Occasionally he had to drill through old fibro.

16. I accept the evidence summarised above.

17. Quite properly there was no cross-examination of the plaintiff about these matters and no challenge was made to his evidence about extensive exposure to asbestos as a plumber in Australia.

EXPOSURE TO JAMES HARDIE PRODUCTS

18. The evidence is all one way. I find that the plaintiff had extensive asbestos exposure during his employment as a plumber in Australia, to asbestos cement building products manufactured by James Hardie, for which Amaca is presently responsible.

19. This being found, Amaca accepts that it owed a duty of care to the plaintiff, it breached the duty of care, and that the exposure to James Hardie products caused the plaintiff’s present disease.

THE PLAINTIFF SINCE RETIREMENT

20. The plaintiff gave evidence that he had always been fit and healthy during his life. He spent time with his family and pursued his pastimes of fishing and gardening. His grandchildren came and went from the house all the time.

21. In early 2015 he helped his sons Geoffrey and Steven to build some duplexes at Revesby. He suffered some breathlessness then. After Christmas 2015 he was helping a friend to lay some pipes, and he became very short of breath when bending down in a trench. He went to the family doctor Dr Suzan Bishara. She sent him for a chest x-ray in February 2016.

22. He was then sent for a CT scan which was done on 26 February 2016. Dr Bishara referred him to a respiratory physician Dr David Freiberg. Dr Freiberg admitted him to Bankstown Hospital. There a needle was inserted in the left side of his back and about two litres of fluid was drained from his left lung. This was a very unpleasant experience.

23. There was no particular result obtained on the cytology from that fluid. Dr Freiberg referred the plaintiff to a surgeon Dr Bruce French. The plaintiff saw Dr French on 13 August 2016. The next day the plaintiff was admitted to Norwest Private Hospital where he had surgery performed by Dr French, being a left thoracoscopy, multiple pleural biopsies and drainage of the fluid in his chest. About 1.8 litres of fluid was drained. Dr French also did a talc pleurodesis.

24. The day before discharge from hospital on 21 April 2016 Dr French told the plaintiff that he had an asbestos-related cancer and that he had perhaps six months to live. The plaintiff said that this was the worst day of his life and that he was shattered by the news.

25. Dr French referred the plaintiff to an oncologist Dr Kirsten. He recommended chemotherapy. This was commenced on 27 May 2016. The plaintiff had chemotherapy every three weeks, and the sessions were on 17 June, 8 July, 29 July, 19 August and 9 September 2016.

26. The first three sessions were tolerated, but the last three sessions were terrible and the plaintiff felt very sick. He had a horrible metallic taste in his mouth, pain and soreness in his teeth, arms and legs, ringing in his ears, a feeling of tiredness, and a feeling of pressure in the chest.

27. The chemotherapy was followed by blood tests and radiology. The last CT scan was done on 5 July 2017 when the doctor told the plaintiff that he had stable disease.

28. The last consultation with an oncologist was with Dr Lee on 10 July 2017. Dr Lee took over from Dr Kirsten who had retired. She told the plaintiff that the mesothelioma was stable.

29. The plaintiff said in his affidavit that he has shortness of breath when he bends down. He has trouble putting on socks and his wife helps him. He has left-sided chest pain all the time. The pain is now much worse than it was before he had chemotherapy. The pain extends from the base of the ribcage up the left side of the chest wall into the shoulder and into the neck. He has been taking Panadol for the pain but severe pain now requires Targin medication. This is very strong and makes him feel dizzy for a few hours after he takes it. The plaintiff was trying to fight the pain without the medication as he is concerned about addiction. However, he is now taking Targin every day and the dose was increased in mid-July.

30. The plaintiff has trouble sleeping and can only get about two hours sleep at a time. He gets up at night and walks around. He finds that he becomes tired or breathless with any exertion. His mood has changed since he developed mesothelioma. He has become cranky, angry and aggressive. Once he asked his wife to lock herself in the room in case he lost his temper. He has never been a person like that before. This upset him terribly.

31. The plaintiff gave evidence that he had a wonderful marriage before the disease and he and his wife went out together all of the time. They now don’t go out very much anymore and are not as close. This makes him sad.

32. The plaintiff cannot drive very far as he gets dizzy. He cannot do any of the heavy work in the garden. He cannot go fishing. He has not been going out to socialize with family and friends. He has to take it easy when playing with his grandchildren.

33. Prior to becoming ill with mesothelioma the plaintiff did all of the outside work at the family home. He helped his wife with the shopping.

34. The plaintiff said that the disease had changed his life completely. He had what he regarded as a beautiful life but the disease has destroyed his life. The plaintiff wants to be at home until the end with his family looking after him. He does not want to go into a nursing home or a hospital.

35. I accept all of the evidence summarised above.

MEDICO-LEGAL EVIDENCE

36. There was a report from Professor Henderson concerning diagnosis, which was not in issue. Professor Henderson came to the view that the findings on pathology were those of pleural malignant mesothelioma of epithelioid type.

37. Professor French provided a report dated 5 November 2016. He said that the median survival following diagnosis with mesothelioma was 18 months but that epithelioid mesothelioma had a slightly better prognosis. He could not make more accurate comments about long term survival for Mr Dib.

38. There was a medico-legal report from Professor Breslin, consultant thoracic surgeon, dated 13 December 2016. He estimated the prognosis from the mesothelioma to be 9-12 months from now. He said that treatment options were limited as the plaintiff was too elderly for radical surgery. He noted that there had been a course of chemotherapy but the plaintiff had declined any further chemotherapy. He thought that the plaintiff would require increasing analgesics over the remainder of his life.

39. There was a report from Dr David Freiberg, the respiratory specialist who saw the plaintiff for medical purposes, dated 29 February 2016. He took a history that the plaintiff had smoked for the last 60 years an average of 20 cigarettes a day and continued to do so. In that report he thought that there was no previous history of lung disease.

40. In another report from Dr Freiberg, dated 29 March 2016, he reported that the plaintiff was still smoking and that his lung function tests showed “associated chronic obstructive pulmonary disease”.

41. I accept all of the evidence summarised above.

EVIDENCE CONCERNING THE COURSE OF MESOTHELIOMA

42. Professor Pavlakis, a thoracic oncologist, gave oral evidence in the matter of Londos. He saw Mr Londos twice as a treating doctor, for a second opinion. Professor Boyer, a thoracic oncologist, provided a medico-legal report in the matter of Dib. The evidence of both specialists was admitted in this case. Further, the evidence of another oncologist Professor Clarke, given in the recent case of Zanetic v Amaca Pty Limited DDT [2017] NSWDDT 5, was tendered in this case pursuant to s 25(3) of the Dust Diseases Tribunal Act 1989.

43. Professor Pavlakis said that he had treated about three hundred patients with mesothelioma over the last 15 years. He was highly experienced in the field, which included not only treating patients, but also conducting leading clinical trials. He had been prescribing Keytruda in the treatment of his patients for about the last 18 months, where that drug was funded by the Dust Diseases Authority.

44. Professor Pavlakis was asked for his opinion about the therapeutic value of emotional support from the family of a person suffering from mesothelioma. He said that emotional support from family and carers was integral to sustaining comfort and in some cases longevity through motivation to fight and resist the disease. He also thought there was a beneficial effect upon pain and distress, if there was both emotional and physical support which could be provided to a patient quickly, by a family member or carer being close by.

45. He said that motivation was important, as it helped the patient to rally at a time when their disease hit a stumbling block. He had found that patients who have strong support from families will keep fighting.

46. He also said that treatments given to mesothelioma patients with malignancy are often very frightening. Patients often remember about 20% or less of their consultation and so he saw it as essential that a relative or carer be in attendance when patients are educated about their treatment. He also saw it as essential that the relative or carer assist in talking to the patient and comforting them, in terms of alleviating some of the fear involved.

47. So far as drugs were concerned, Professor Pavlakis said that modern treatments have extended survival times. They give brief periods of time when the disease of mesothelioma is more under control, but ultimately patients die because of the disease progressing. Patients suffer breathlessness, pain, anorexia and cachexia. In spite of modern chemotherapy treatment, he said that the pain was the same and the suffering was the same, it was just that doctors had more tools to try to fight it.

48. Professor Pavlakis said that there was now a variety of narcotic analgesics and doctors could switch drugs when one is not working, which gives greater pain control. These drugs help prevent severe spikes in disease control, but he said that ultimately the disease trajectory still runs its course towards death. As he said:

“The only difference is the gradient”.

49. Professor Pavlakis explained that the organ affected by mesothelioma is the pleura. This is a continuous membrane around the lining of the lung, rather than a discrete area. The area becomes diseased and thickened. It acts as a vice causing restriction of lung capacity and breathlessness. Underneath every rib in the chest wall there are bundles of nerves. As the disease transforms the pleura from a soft area into a hard area, it creates ledges and hard bits which press against these nerves and cause pain in those areas. There is loss of volume in the lung.

50. Radiotherapy is of little use, as it has to be targeted to a particular localised lesion. Mesothelioma is a diffuse cancer. Nerve blocks cannot effectively be used, as they can in other diseases.

51. Professor Pavlakis said that one of the difficulties with the pain from mesothelioma is actually trying to work out exactly where the pain is. It tends to be a more diffuse pain, meaning that there cannot be localised treatment. Because there is pain associated with the disease, and because there is a reduced lung volume, attempts to breathe actually enhance the pain. This is why doctors use narcotics to try to minimise pain, so that patients can take a clearer and deeper breath. The narcotics are also used to alleviate the anxiety associated with breathlessness or air hunger. The professor described this feeling as akin to drowning. When patients get to the end of their life, they have an impaired cough with mucus retention in their throat. He said it’s like having “someone squeezing your chest and you having to breathe against that”.

52. Professor Pavlakis said that as the disease affects the respiratory function patients start to lose weight and appetite, get weaker, and there is a vicious circle where they are less capable of walking. They end up being bed bound. He also said that the effect of cancer on the body was to lead to exhaustion, which diminishes the survival of the patient. As he said:

“Patients who get exhausted often say ‘I’ve done enough, I give up’ and they can often pass away faster.”

53. Constipation is a recognised side effect of narcotic analgesia. Constipation leads to straining, which in turn causes problems with breathing, creating another vicious circle.

54. Professor Pavlakis was also asked about emotional support in the later stages of the disease. He thought it was therapeutically important to have a carer to hold your hand in the circumstances of distress. He had seen that patients were willing to fight, if they had loved ones around them and had milestones that they wanted to see and live for.

55. As pain increased towards the end stages of the disease, it was sometimes necessary to put patients into an induced coma as the only means of alleviating their pain.

56. As previously recited Professor Boyer gave evidence in this case. He had treated between 150 and 200 patients during his practice as a specialist clinical oncologist in the last 23 years. He was involved in a range of clinical trials looking at new drugs in the treatment of mesothelioma. He saw Mr Dib on 26 July 2017.

53. Professor Boyer said that the last really major advance in the treatment of mesothelioma was the recognition that combination chemotherapy could prolong life. That was a study published in about 2002 and it led to the widespread introduction of chemotherapy for the disease. Since that time, according to Professor Boyer, there had been only very minor advances in treatment. He was one of the authors of that landmark study. The drug involved in that study was Pemetrexed, or Alimta.

54. Professor Boyer thought that the drugs for relief of pain now were no more effective than they had been 15 years ago. He did say that there were better ways of administering those drugs which resulted in greater convenience for patients, sometimes with fewer side effects. The same narcotic drugs were used, but their method of delivery had changed.

55. Asked about developments in the treatment of mesothelioma over the last 15 years, he said that he did not think that the suffering of patients with mesothelioma had changed much in that time frame. It is still a disease that with the best care produces many symptoms in patients. The use of effective anti-cancer treatments such as chemotherapy defers some of the suffering, because it produces a period of time where the disease may be under control, but that suffering remains.

56. He said:

“I think dying with mesothelioma is a miserable way to die. It is a horrible disease and with the best will in the world and the best medical care in the world it remains a miserable way to die.”

61. He was asked whether the mental anguish suffered by patients had changed over the last 15 years with changes in treatment. He said:

“Paradoxically, it may even be worse, because people are living, if you like, with this death sentence over them for a slightly longer period of time. I don’t think we are particularly good at dealing with that mental anguish and it is an ongoing and difficult area of the treatment of this particular disease.”

62. As previously recited, Professor Stephen Clarke, oncologist, gave evidence in the matter of Zanetic v Amaca Pty Limited [2017] NSWDDT 5. That evidence was given on 5 July 2017.

63. Professor Clarke said that the development of more effective chemotherapy, including the drug Pemetrexed, had resulted in improvement in symptoms. He said that “pain control has improved out of sight”. Professor Clarke said there was a range of agents that work as neuropathic agents so if there is nerve pain, because mesothelioma can affect nerve roots, there is a range of anti-epileptic drugs that are used to damp down pain in those circumstances. He also said that doctors had greater expertise in palliative care and pain management than previously.

64. Professor Clarke was asked what the last few weeks of life would be like. He said that if there was difficulty controlling symptoms then doctors would normally try and increase the opiates which were prescribed. That usually results in the patient becoming even less functional, and it can lead to them going into a coma. Pain killers are then kept up to the patients, the coma persists and the patient perishes over a number of days. He said that doctors don’t interfere with that process if the patient has had severe symptoms which cannot be controlled appropriately. He thought that the patient became unconscious during that period and if they did show signs of pain then they would be given increased amounts of pain killers to make them comfortable. He did point out that increasing doses of narcotic analgesia compromise breathing, and sufficient doses could be enough to stop a patient breathing.

65. I accept all of the evidence summarised above.

EVIDENCE CONCERNING GRATUITOUS ATTENDANT CARE SERVICES

66. The plaintiff makes a claim for damages referable to the provision of gratuitous attendant care services to him. These services have largely been provided by his wife. Section 15A of the Civil Liability Act 2002 provides that the only restriction on the award of such services in a claim for damages for a dust disease, is that the hourly rate is to be a prescribed rate. The present prescribed hourly rate is $29.98 per hour.

67. Section 15A(4) picks up the definition of “attendant care services” in s 15(1). The phrase is defined to mean any of the following:

1. Services of a domestic nature;

2. Services relating to nursing;

3. Services that aim to alleviate the consequences of an injury.

68. In his affidavit the plaintiff said that he did not need any assistance from his wife or family between 1 February 2016 and about 21 April 2016. For about two weeks after the talc pleurodesis his wife looked after him for about 4-5 hours a day because he was in pain and felt terrible. She bought and administered his pain medication, made sure he had drinks and food when he wanted it. She made sure his pillows were in the correct position. She helped him in the bathroom, with dressing, cooking and serving meals.

69. From 22 April 2016 to the end of September 2016 during the chemotherapy treatment he continued to need about 5-6 hours a day of assistance from his wife and children. During this period he felt that he could not be left alone because he felt so sick. His wife supervised him for many hours. He was dizzy when standing and needed more assistance around the house.

70. From 2016 until the trial his wife spent about 4-5 hours a day looking after him. She bought and organized his medication, fetched things for him, cooked and served his meals, helped him with shoes and socks occasionally and drove him to places he wanted to go.

71. The plaintiff said that he tried to do some things in the yard but he needed to do them at a slower pace than before. He could no longer prune trees, clean gutters or do the lawn mowing. His sons were helping him with the maintenance and he had hired a gardener to cut the front lawn.

72. The plaintiff’s wife swore an affidavit concerning the care she had provided to her husband. While the plaintiff was in hospital in April 2016 having his surgery she brought him fresh pyjamas and underwear each day. She sat in the chair next to him and talked with him and held his hand. She tried to reassure him that everything would be fine. She was there about six hours a day providing care and comfort to her husband.

73. Mrs Dib observed that when her husband was discharged from hospital he was in a lot of pain. He was very emotional and teary about his diagnosis. He became withdrawn and isolated himself from the family. She made him meals and did all of the shopping and washing. She estimated that she provided about 3-4 hours assistance each day. She also provided many more hours of supervision because her husband was so unwell.

74. The plaintiff did not want to have chemotherapy, but was convinced to do so by his wife and children. The plaintiff’s wife went with him to the chemotherapy sessions which were 3-4 hours long. She drove him to and from the chemotherapy. She also took him for all of his blood tests and radiological tests during the course of chemotherapy.

75. The plaintiff made complaints to his wife during the chemotherapy of severe side-effects. He became nauseous, constipated and chronically fatigued. Mrs Dib tried to make sure that her husband had enough to eat and drink. She thought that her husband became a bit vague, and she tried to be around him all the time to make sure he took all of his medication at the appropriate time. Her husband became temperamental and aggressive during the chemotherapy and there were occasions when her husband asked her to lock herself in the bedroom in case he lost his temper. The plaintiff had tears in his eyes when he came to apologise to his wife for this behaviour. He has never been an aggressive man.

76. Mrs Dib has supervised the taking of pain control medication, which now includes Targin. She has attended to her husband when he has woken up in the night with severe night sweats. She has tried to comfort him and re-assure him that he would be fine. The amount of washing has doubled in that period as she often has to change the bed sheets at night because of sweats.

77. During chemotherapy Mrs Dib provided her husband with about six hours of care and assistance each day. In addition she did not leave him alone and supervised him the rest of the time. She thought that he was very unwell and could not be left alone.

78. The plaintiff’s wife said in her affidavit that her husband is uncomfortable most of the time and is in a lot of pain particularly at night time. He wakes up several times in the night with pain. She gets up to help him. She then gets medicine or something for him to drink. The medication makes the plaintiff quite vague and confused, so his wife is always there to help make sure he takes the right tablet at the right time. She does all of the shopping, the cooking and the serving of meals. She does all of the washing and all the house duties. The only time she leaves her husband alone is when she goes shopping for an hour or two. When she had come back on those occasions her husband is always very anxious. He does not like to be left alone.

79. Mrs Dib estimated that since chemotherapy ceased in October 2016 she has provided her husband with about five hours of active assistance each day. She continues to do all of the cooking and the housework. She has observed that her sons and son-in-law provide about 1-2 hours of assistance per week with the heavy outside work that her husband used to do. Finally, Mrs Dib deposed in her affidavit that she will look after her husband at home until the end with outside assistance when necessary.

80. I accept all of the evidence summarised above.

LIFE EXPECTANCY

81. On the medium life expectancy tables a 77 year old male has a life expectancy of 11.22 years. There was an issue in the case as to whether that figure should be adopted, or some lesser figure should apply.

82. Agreement was reached between the parties that the plaintiff’s life expectancy, taking into account his disease of mesothelioma, was a further 12 months.

83. The plaintiff’s smoking history has been previously recited. Both Professor Pavlakis and Professor Boyer held the view that an oncologist was not the appropriate person to offer an opinion about the size of any reduction in life expectancy due to smoking history. Professor Fox gave evidence for the defendant. He did offer a view about a number of years of reduction, but offered no reasons or analysis as to why he picked a particular number of years of reduction in life expectancy.

84. All three experts were agreed that the medical profession accepts that in the overall population, heavy smoking is correlated with a reduction in life expectancy.

85. The defendant tendered an article which Professor Fox relied upon, entitled “Tobacco Smoking and All-Cause Mortality in a large Australian cohort study: Findings from mature epidemic with current low smoking prevalence”. That article was published in BMC Medicine (2015) 13:38. The article is by a number of authors, many of whom are specialist epidemiologists.

86. The study was of 204,953 Australians aged over 45 years sampled from the general population in New South Wales. The participants in the study had no history of cancer, heart disease, stroke or thrombosis. Hazard ratios for all-cause mortality among current and past smokers, as compared to never-smokers, were estimated, adjusting for age, education, income, region of residence, alcohol, and body mass index.

87. The study found that mortality risk rates increased with increasing smoking intensity. In current smokers of less than 14 cigarettes per day (average of 10 a day), there was a twofold increase in mortality. In current smokers of more than 25 cigarettes per day, there was a fourfold increase in mortality. Both of these increases were as compared to never-smokers. The study found that among past smokers, mortality diminished gradually with increasing time since cessation and did not differ significantly for never-smokers in those quitting prior to age 45 years. Current smokers were estimated to die an average of 10 years earlier than non-smokers.

88. All doctors agreed that the life tables give the best general impression of survival in a general population. The statistics from the tendered study, together with the overall acceptance by all three oncologists that smoking generally results in an increased risk of reduction in life expectancy, leads me to conclude that in the present case it would not be appropriate to adopt the medium life expectancy figure of slightly over 11 years for Mr Dib.

89. Mr Dib had been a fit and healthy man until his disease of mesothelioma. However, Dr Freiberg did find, on objective testing, some evidence of obstructive smoking related disease. However, this had not caused any disability up to that stage. In fact, in an earlier report, Dr Freiberg had not thought that the plaintiff suffered from any smoking related illness. His disease must therefore have been very mild at that stage.

90. All three specialists pointed out that the figures from the study relate to averages over a general population, which means that while there is an increased risk of dying earlier among heavy past smokers, anecdotes abound concerning heavy smokers who live to a very old age.

91. In the circumstances, I find that it is appropriate to deduct two years from the life expectancy of Mr Dib, because of his past heavy smoking history. I will therefore adopt a figure of nine years of life expectancy, if Mr Dib had not developed his disease of mesothelioma.

GENERAL DAMAGES

92. The plaintiff submitted that general damages should be $400,000. In my view this is too high.

93. The defendant submitted that general damages should be $275,000. In my view this is too low.

94. Mr Dib was a fit and healthy man who enjoyed a family life with his wife, children and grandchildren. He had interests and hobbies which included fishing and gardening. Even after his retirement he had been a hard worker, as demonstrated by the kind of work he was doing when he first experienced shortness of breath. There would be very few people in their mid-seventies doing that sort of work.

95. He has had an operation with an unpleasant stay in hospital and has gone through several courses of chemotherapy which affected him quite badly. He has never been pain free, and his pain and discomfort is becoming worse

96. He has now had his symptoms since late 2015.

97. He has suffered emotionally as a result of developing this disease, and his marriage and family life, previously very close and loving, has suffered because of the change wrought on his personality.

98. His wife gave evidence, which I accept, that he has from time to time expressed the view that he would be better off dead rather than suffering as he does. The role of his wife has been changed from that of a loving spouse to being a vigilant carer.

99. The award for general damages will be $350,000.

INTEREST ON PAST GENERAL DAMAGES

100. I award interest on $175,000 at 2% for 20 months which is $5,833.

LOSS OF LIFE EXPECTANCY

101. I award $8,000. The plaintiff’s life expectancy would have been another 9 years, but he will survive for another year.

OUT-OF-POCKET EXPENSES

102. The plaintiff has had his medical expenses paid to date by the Dust Diseases Authority. The plaintiff’s written submissions claim a $1,400 figure for a Medicare payback, but there is no evidence that any of the expenses have been paid through Medicare. The award for past and future out-of-pocket expenses is therefore nil.

DAMAGES FOR GRATUITOUS ATTENDANT CARE SERVICES

103. The plaintiff claims $100,568 for past services, together with interest thereon, and $80,995 for future services. It relies upon a report of an occupational therapist Ms Oates, dated 31 January 2017. Ms Oates was not required for cross-examination.

104. Her figures have to be adjusted for the agreed life expectancy, with mesothelioma, until August 2018.

105. The plaintiff’s claim for care is set out in Schedule A to the plaintiff’s written submissions (PX12). The defendant’s submissions about care are set out in its written submissions (DX10).

106. So far as the past is concerned, the figures put forward by the plaintiff are supported by the evidence. I accept the evidence of the plaintiff and in particular the evidence of his wife, as to the level of care which has been provided during each period in the Schedule. The plaintiff has been quite debilitated during that time, and it seems to me that the claim is put at a sensible and moderate level. The periods of care all seem supported by the evidence and I find that such level of care was reasonable and necessary.

107. I award the figure claimed by the plaintiff for past care being $102,567.

108. The plaintiff is entitled to interest on the past loss at 4.5% from April 2016 to the present date (16 months). I award $6,154.

109. For the future, Schedule B to the plaintiff’s submissions sets out the calculations for gratuitous attendant care services. They are calculated on the basis that the plaintiff is presently receiving what an occupational therapist would describe as moderate care, but that Mr Dib will move to high care between 1 April 2018 and 30 June 2018, and will require complete care at 168 hours a week for the last month of his life ending at the start of August 2018. There is no dispute about this last figure.

110. I have already found that the claim at the present time is properly to be assessed at 35 hours a week, whereas the claim between now and 31 March 2018 is only pitched at 31.5 hours a week. If anything that is an understatement of the necessary care, given the evidence.

111. The claim for high care between 1 April 2018 and 30 June 2018 is put at 70 hours a week or 10 hours a day. In turn, this figure is based upon Ms Oates’ extensive experience in assessing the progress of patients with mesothelioma and their need for care as they decline. The selection of dates is not mathematically predictable, but the plaintiff will certainly decline into the stage of needing high care and he could get to that stage well before the dates put forward on behalf of the plaintiff. I accept the evidence of Ms Oates regarding the transitions between different stages of care.

112. I am of the view that the claim for future care as put forward by the plaintiff is measured, sensible and supported by the evidence.

113. I allow future care at a figure of $80,984.

LOSS OF RECEIPT OF THE AGE PENSION

114. The plaintiff retired at age 73 in 2011. Since that time he has received an age pension from Centrelink. The claim for future economic loss is a claim that, because the plaintiff will die early from mesothelioma, he has lost the receipt of the age pension during the years he would have survived, if he had not contracted his disease.

115. I was taken to a large number of authorities by both parties. I will review the Australian authorities in detail. I will also deal with the English authorities, although given the divergence in approach between England and Australia, I did not find much assistance in the English authorities.

116. The starting point is the decision of the High Court of Australia in The National Insurance Company of New Zealand Limited v Espagne 105 CLR 569. That case concerned whether an invalid pension was to be disregarded in assessing the damages to be awarded in an action for personal injuries caused by negligence. Justice Windeyer discussed the nature of such a pension, both in a compensation to relatives action, and in a damages claim brought by an injured plaintiff. He said:

“In actions under Lord Campbell’s Act the amount received as a pension consequent upon death, and the value of the prospect, or probability, of continuance of a pension must – in the absence of any statutory provision displacing the general rule – be taken into account in assessing damages.

…

But damages under Lord Campbell’s Act are for the loss of pecuniary benefits consequent upon death. A common law action for damages for personal injury, on the other hand, is not a claim to have a pecuniary loss made good, but to have a pecuniary compensation for all the consequences of physical injury. The distinction becomes thin when the element in general damages that is commonly called economic loss is separately considered: and I confess that there is much in the reasoning in the judgments concerning damages for the pecuniary consequences of death that seems to me logically applicable to the purely economic consequences of physical and mental incapacity. A pension diminishes the pecuniary loss that results when the death of the father deprives the family of the contribution he made to their support. Why, it may be asked, does not a disability pension similarly diminish the monetary loss a man himself suffers by being unable to work? But the same question could be asked about the proceeds of an insurance policy. And there law rather than logic gives the answer.”

117. In Graham v Baker 106 CLR 340 the High Court held that in assessing damages for personal injuries to a plaintiff who was compulsorily retired because of such injuries, no account should be taken of pension payments which accrued to and were paid to the plaintiff between the date of such compulsory retirement and the date on which he would have retired in the ordinary course of events.

118. In the joint judgment of Dixon CJ, Kitto J and Taylor J, it was said that:

“An injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss.” – at 347

119. In Teubner v Humble 108 CLR 491 the High Court considered, inter alia, the view that in assessing damages for loss of earnings the years of life of which the injured man had been deprived by the injury were to be disregard. This was the view in England according to Oliver v Ashman [1962] 2 QB 210. In considering this issue Justice Windeyer said [at 505]:

“Broadly speaking there are, it seems to me, three ways in which a personal injury can give rise to damage: first, it may destroy or diminish, permanently or for a time, an existing capacity, mental or physical; secondly, it may create needs that would not otherwise exist; thirdly, it may produce physical pain and suffering.” [Emphasis added]

120. His Honour also said [at 509] that he doubted the correctness of the decision in Oliver v Ashman. He said:

“And I am inclined, on more general grounds, to doubt the correctness of the decision of the Court of Appeal on this point. It seems to me that the monetary measure of the destruction of the skill and capacity to earn, which the appellant formerly had and had exercised, is not diminished by showing that, in addition to being deprived of his capacity to earn while alive, he has been deprived of part of his expected span of useful earning life.”

121. In Skelton v Collins 115 CLR 94 the High Court held that in assessing damages for loss of earning capacity where a plaintiff’s expectation of life has been shortened as a result of his injuries, regard should be had to the probable length of his working life had he not been injured and not merely to the probable period left to him as a result of his injuries. The High Court declined to follow Oliver v Ashman.

122. Justice Windeyer said [at 128]:

“The one principle that is absolutely firm, and which must control all else, is that damages for the consequences of mere negligence are compensatory. They are not punitive. They are given to compensate the injured person for what he has suffered and will suffer in mind, body or estate. Only so far as they can do so is he entitled to have them.”

123. Justice Windeyer also said [at 129]:

“The general principle that damages are compensatory yields what seems to me to be some equally sure, but more particular, doctrines. The first is that a plaintiff is entitled to be recompensed for expenses, such as for medical and nursing attention, that he incurs, or that are incurred on his behalf, as a consequence of his injury.

The next rule that, as I see the matter, flows from the principle of compensation is that anything having a money value which the plaintiff has lost should be made good in money. This applies to that element in damages for personal injuries which is commonly called ‘loss of earnings’. The destruction or diminution of a man’s capacity to earn money can be made good in money. It can be measured by having regard to the money that he might have been able to earn had the capacity not been destroyed or diminished. Of course, the monetary equivalent of the loss of capacity is not ascertainable with precision by a simple arithmetical calculation: assumptions and adjustments must be made. But what is to be compensated for is the destruction or diminution of something having a monetary equivalent. The plaintiff could, if he had not been injured, have sold his labour and his skill or the fruits of his labour and his skill. I cannot see that damages that flow from the destruction or diminution of his capacity to do so are any less when the during which the capacity might have been exercised is curtailed because the tort cut short his expected span of life. We should not, I think, follow the English decisions in which in assessing loss of earnings the ‘lost years’ are not taken into account. I agree with what my brother Taylor has said about those cases and with his conclusion on this aspect.” [Underlining added]

124. The submission made in the present case for the plaintiff focusses upon the underlined part of the judgment of Justice Windeyer where he said that what flows from the compensatory principle is “that anything having a money value which the plaintiff has lost should be made good in money”.

125. I pause to point out that the sentences immediately after this quote refer in terms to a claim for loss of earning capacity rather than any other kind of claim for economic loss.

126. If the compensatory principle as set out by Justice Windeyer demands that loss of a future age pension be compensated, one would expect to find cases, since Skelton v Collins was decided in 1966, where such a loss was awarded. According to the researches of counsel, and my own researches, such a loss has never been awarded in this Tribunal, or in any of the courts of this state, or until recently, in any Australian courts.

127. I will come back to the recent development in due course.

128. In Sharman v Evans 138 CLR 653 the High Court was primarily concerned with the principles to be applied by appeal courts in reviewing damages awarded by the trial judge. At page 579 in the judgment of Gibbs J and Stephen J, the following was said:

“As to ‘lost years’, the plaintiff is to be compensated in respect of lost earning capacity during those years by which her life expectancy has been shortened, at least to the extent that they are years when she would otherwise have been earning income.”

129. The High Court returned to consider the compensatory principle in Todorovic v Waller 150 CLR 402. The joint judgment of Gibbs CJ and Wilson J said [at 412]:

“Certain fundamental principles are so well established that it is unnecessary to cite authorities in support of them. In the first place, a plaintiff who has been injured by the negligence of the defendant should be awarded such a sum of money as will, as nearly as possible, put him in the same position as if he had not sustained the injuries. Secondly, damages for one cause of action must be recovered once and forever, and (in the absence of any statutory exception) must be awarded as a lump sum; the court cannot order a defendant to make periodic payments to the plaintiff. Thirdly, the court has no concern with the manner in which the plaintiff uses the sum awarded to him; the plaintiff is free to do what he likes with it. Fourthly, the burden lies on the plaintiff to prove the injury or loss for which he seeks damages.”

130. Justice Brennan said [at 465]:

“The assessment of damages for future financial loss occasioned by diminution in earning capacity requires a comparison between the plaintiff’s position as a person employing his capacity to earn with his position as an investor of a fund.”

131. At around the same time as Todorovic v Waller, the High Court delivered its decision in Fitch v Hyde-Cates 150 CLR 482. While that case primarily concerned the deductions which should be made for likely living expenses in a claim for the “lost years”, it did proceed on the basis that where the deceased had his life shortened as a result of negligence, damages were recoverable for loss of earning capacity in the “lost years”.

132. The High Court reaffirmed the principle governing the assessment of compensatory damages in Haines v Bendall 172 CLR 60, saying [at 63] that:

“The injured party should receive compensation in a sum which, so far as money can do, will put that party in the same position as he or she would have been in if the contract had been performed or the tort had not been committed.”

133. The case concerned the need to take into account the use and enjoyment of monies paid by way of workers compensation upon the calculation of interest on pre-judgment non-economic loss.

134. In Medlin v The State Government Insurance Commission 182 CLR 1 the High Court considered a case involving damages for loss of earning capacity where the injured plaintiff was a university professor who could no longer work to his own previous high intellectual standards. The joint judgment of Deane J, Dawson J, Toohey J and Gaudron J said [at 4] that in an action in negligence an injured plaintiff recovers damages for loss or impairment of earning capacity as distinct from the direct recovery of past or future lost earnings. Justice McHugh made a statement to the same effect [at 16]. His Honour went on to say:

“In Australia, a plaintiff is compensated for loss of earning capacity, not loss of earnings. In practice, there is usually little difference in result irrespective of whether the damages are assessed by reference to loss of earning capacity or by reference to loss of earnings. That is because ‘an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss’. Nevertheless, there is a difference between the two approaches, and the loss of earning capacity principle more accurately compensates a plaintiff for the effect of an accident on the plaintiff’s ability to earn income. Earning capacity is an intangible asset. Its value depends on what it is capable of producing. Earnings are evidence of the value of earning capacity but they are not synonymous with its value. When loss of earnings rather than loss of capacity to earn is the criterion, the natural tendency is to compare the plaintiff’s pre-accident and post-accident earnings. This sometimes means that no attention is paid to that part of the plaintiff’s capacity to earn that was not exploited before the accident. Further, there is a tendency to assume that if pre-accident and post-accident incomes are comparable, no loss has occurred.”

135. In Husher v Husher 197 CLR 138 the High Court said [at 143]:

“Since at least Graham v Baker it has been recognised that it is convenient to assess an injured plaintiff’s economic loss ‘by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff’s proved condition at the time of trial, to attempt some assessment of his future loss’. But damages for both past loss and future loss are allowed to an injured plaintiff ‘because diminution of his earning capacity is or may be productive of financial loss’. Both elements are important. It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as he or she would have been in if injury had not been sustained.”

136. Finally, the High Court considered claims for future economic loss in CSR Limited v Eddy 226 CLR 1. The judgment of Gleeson CJ, Gummow J and Heydon J said [at 15-16]:

“A plaintiff who has suffered negligently caused personal injury is traditionally seen as able to recover three types of loss.

The first covers non-pecuniary losses such as pain and suffering, disfigurement, loss of limbs or organs, loss of the senses – sight, taste, hearing, smell and touch; and loss of the capacity to engage in hobbies, sport, work, marriage and child-bearing. Damages can be recovered in relation to these losses even if no actual financial loss is caused and even if the damage caused by them cannot be measured in money. The second type of loss is loss of earning capacity both before the trial and after it. Although the damages recoverable in relation to reduced or future income are damages for loss of earning capacity, not damages for loss of earnings simpliciter, those damages are awardable only to the extent that the loss has been or may be productive of financial loss. Hence ‘the valuation of the loss of earning capacity involves the consideration of what monies could have been produced by the exercise of the former earning capacity’.

The third type of recoverable loss is actual financial loss, for example, ambulance charges; charges for medical, hospital and professional nursing services; travel and accommodation expenses incurred in obtaining those services; the costs of rehabilitation needs, special clothing and special equipment; the costs of modifying houses; the costs of funds management; and the costs of professionally supplied home maintenance services.” [Emphasis added]

137. That completes the review of the relevant High Court authorities. I turn to consider authorities of the courts in New South Wales.

138. In James Hardie & Coy Pty Limited v Roberts (1999) 47 NSWLR 425 the New South Wales Court of Appeal was dealing with the quantification of damages for the lost years in a mesothelioma case. Spigelman CJ agreed with Sheller JA. Justice Sheller commenced his discussion of loss of earning capacity [at 437] by reference to Teubner v Humble and Medlin v State Government Insurance Commission. He said that where personal injury affects the receipt of earnings from employment or self-employment, damages are awarded for the destruction or diminution in earning capacity. He regarded this principle as “well established”.

139. Counsel for the defendant referred the Tribunal to the decision of the New South Wales Court of Appeal in CGU Workers Compensation (NSW) Limited v Garcia (2007) 69 NSWLR 680. In that case a trial judge had found a tortious duty to act in good faith, and a contractually implied duty of good faith, to exist in relation to a prescribed policy of insurance under the Workers Compensation Act 1987. At paragraph [61] the Court of Appeal said:

“The High Court has recently issued stern warnings against intermediate courts of appeal stepping beyond long established authority derived from English precedents or considered dicta of the High Court itself (Farah Constructions Pty Limited v Say-Dee Pty Limited).”

140. Of course the Court of Appeal was there speaking of the discovery by trial judge of a new species of tort, whereas the present case, in my view, requires the Tribunal to discern a new head of damages. As Justice Santow said in that same case, the common law moves incrementally and in principled fashion, not by sudden leaps – at [167].

141. Finally, in Kallouf v Midis [2008] NSWCA 61 at [44]-[61], the New South Wales Court of Appeal said that damages for past and future loss of income are allowed because diminution of earning capacity is or may be production of financial loss – Graham v Baker. An alternative way of expressing the principle is that the plaintiff is compensated for the effect of an accident on the plaintiff’s ability to earn income – Medlin v The State Government Insurance Commission. The court said, in summary, that damages for lost income, past and present, are awarded by answering three questions:

1. What was the plaintiff’s income earning capacity at the time of injury?

2. To what extent was it impaired by the injury?

3. To what extent was the impairment productive of income loss?

142. It can be seen that the focus of all of the High Court decisions, and the New South Wales Court of Appeal decisions, reviewed above, is that there is a recognised head of damage for interference with earning capacity. To this date there is no authority in either the High Court or the New South Wales Court of Appeal for damages for the loss of the ability to receive the age pension.

143. I turn now to a recent Australian authority where a loss of the kind presently claimed was awarded. That is the decision of the District Court of South Australia in Latz v Amaca Pty Limited [2017] SADC 56, a decision of Judge Gilchrist. The plaintiff in that case suffered from mesothelioma and had a shortened life expectancy. He made two claims for economic loss. The first was for loss of a superannuation entitlement. To my mind that raises different issues to the present claim. The second claim in the Latz case was for loss of entitlement to a partial age pension in the future.

144. The trial judge recited that the fundamental purpose of an award of damages in an action for tort is to place the victim of the tort, so far as money can achieve it, into the position that he or she would have been in but for the tort – at [98]. He said that but for the tort of James Hardie, Mr Latz would have continued to receive his age pension for the rest of his life. The trial judge said that conceptually he could see no reason why the plaintiff’s entitlement to an age pension should be treated any differently to an entitlement to his state pension. I pause to remark that the claim for loss of the State pension raised different issues, in that it arguably related to loss of earning capacity, since the State pension was “earned” by the plaintiff through his years of employment services.

145. Without citing authority, and in particular without referring to what the plaintiff in the present case submits is the key decision of Justice Windeyer in Skelton v Collins, the trial judge allowed damages for loss of the receipt in future years of the age pension.

146. It is noted that the Latz decision is presently the subject of an appeal.

147. Senior Counsel for the plaintiff referred the Tribunal to two earlier decisions of the Dust Diseases Tribunal. In Lynch v Amaca Pty Limited [2004] NSWDDT 1, Judge Curtis awarded damages for loss of pension and superannuation entitlements. The plaintiff was prevented from working in future because of his dust disease. Besides a claim for loss of earnings, which was agreed, he also claimed damages for loss of retirement benefits which were going to be paid to him pursuant to a pension payable upon retirement by his employer, based upon the number of years of service to the employer, and a percentage of his final salary. The evidence was that had the plaintiff survived until retirement age of 65 years, he would have been entitled to $48,627.57 per annum.

148. Without reference to any particular authority, the trial judge awarded the loss of pension and superannuation benefit. Such an award is unsurprising, given that the evidence was clearly that the plaintiff worked for a combination of weekly wages plus an entitlement to a pension paid by the employer upon retirement. It can be seen straight away that this is to be differentiated from receipt of an age pension. The economic loss in the case of Lynch was an interference with earning capacity, which is the recognised head of damages available for future loss of income.

149. The second decision of the Tribunal was the matter of Roberts v Amaca Pty Limited [2009] NSWDDT 28. The plaintiff had worked as a dentist in the United Kingdom. During his time there he made compulsory contributions to the National Health Superannuation Scheme of the United Kingdom. He was entitled to receive a pension when he retired in the future.

150. The loss was awarded. Judge Curtis referred to the decision of Justice Windeyer in Skelton v Collins and to the compensatory principle. He went on to refer to the fact that the compensatory principle applies so that anything having a money value which the plaintiff has lost should be made good in money.

151. Without further reference to authority the trial judge allowed the loss of the UK pension. Again, such a pension is to be distinguished from the age pension. The UK pension was payable in the future because of the plaintiff’s earning capacity being diminished. Different considerations to my mind apply to such a pension, as opposed to an age pension, which is paid under the social security legislation simply because a person reaches a certain age and satisfies a means test.

152. I was referred to a number of English authorities which I have not found helpful, because of the differences in the law of damages between the United Kingdom and Australia. The high point of the plaintiff’s submissions in relation to the English cases was the decision of the House of Lords in Pickett v British Rail Engineering Limited [1980] AC 136. That case concerned a claim for loss of earning capacity. It did not concern loss of the receipt of unearned or passive income for the future.

142. The remarks in particular of Lord Russell were therefore obita dicta. At page 165 in the speech of Lord Russell, he considered the theoretical propositions involved if a person was to be the recipient of the income from a life tenancy. The early death of such a person would mean that he would not receive the income from the life tenancy. Similarly, if a person had an expectation of receiving a benefit under the will of rich relation, who would lose that if he died early through negligence. His Lordship said that in such cases an allowance in damages would need to be made for the loss.

143. To similar effect was the speech of Lord Scarman. His Lordship referred to the report of the Law Commission (the UK equivalent of our Law Reform Commission). In paragraph 90 of Law Commission Report No. 56, the following was said:

“There seems to be no justification in principle for discrimination between deprivation of earning capacity and deprivation of the capacity otherwise to receive economic benefits. The loss must be regarded as a loss of the plaintiff; and it is a loss caused by the tort even though it relates to monies which the injured person will not receive because of his premature death. No question of the remoteness of damage arises other than the application of the ordinary foreseeability test.”

155. While it was obita dicta, Lord Scarman said that he would allow a plaintiff to recover damages for the loss of financial expectations, and not just for loss of earning capacity.

156. These two expressions of opinion, not part of the ratio in the case of Pickett, have not found favour in Australia.

157. A reading of the Law Commission Report No. 56 shows that the view expressed in paragraph 90 was thought by the Commission not to be part of the law of United Kingdom. In Appendix 4 to the report the Commission set out recommendations for reform where legislation was required. The Commission saw a need for legislation to overrule Oliver v Ashman, so that in the UK damages could be obtained for the lost years. Further, the Commission said (Appendix 4 paragraph 8(d)):

“In line with the reasoning of the Australia High Court in Skelton v Collins the plaintiff should be entitled to compensation not only for loss of earnings but for other kinds of economic loss eg. a life annuity referable to the lost period.”

158. Having read Skelton v Collins carefully, I am of the view that the Commission overstated the effect of that decision of the High Court of Australia. Nowhere in Skelton v Collins is that said.

159. The inclusion of that in the appendix to the report caused me to look back to paragraphs of the report earlier than paragraph 90. The only other mention of Skelton v Collins is in paragraph 58 of the report, where the following is said:

“We expressed the provisional conclusion that the present rule in Oliver v Ashman should be reversed and suggested three possible alternative solutions for changing the law:

(a)   the reversal by legislation of the rule in Oliver v Ashman and the adoption of the formula accepted in the Australian case of Skelton v Collins i.e. compensation for loss of earnings in the so-called ‘lost years’ should be based upon the amount of such earnings less what the plaintiff would have spent on his own maintenance.”

160. That paragraph, in my opinion, correctly states the ratio of Skelton v Collins. The paragraph later in the report where legislation is proposed to overturn Oliver v Ashman, attributes a principle to Skelton v Collins which is simply not in the case.

161. I was referred to other English cases. I will deal with them briefly.

162. In Adsett v West [1983] 1 QB 826, the trial judge found that the loss of income in the lost years should be compensated, subject to certain deductions. The trial judge held that the prospect of inheritance in the lost years was a factor to be taken into account as the loss of the enjoyment of the income from that benefit was no different from that of income received from other sources. In support of this he quoted the report of the Law Commission, and the judgments of Lord Russell and Lord Salmon in Pickett. I have already indicated my view of the doubts which arise in relation to the force of those statements.

163. In Gabriel v Nuclear Electric PLC [1996] PIQR Q1 the English High Court was dealing with a mesothelioma claim. Part of the claim was that the plaintiff had lost the ability to perform home handyman work (“DIY benefits”). The judge allowed such a loss referring to the speeches of Lord Russell and Lord Scarman.

164. It seems to me that such a loss would be compensable in any event, because it is clearly a loss of capacity. A person may not be paid for DIY work, but it has an economic value, and the interference with the capacity to exercise those skills sounds in damages.

165. In Phipps v Brooks Dry Cleaning Services Limited [1996] PIQR Q100, the English Court of Appeal was dealing with a mesothelioma claim. Part of the claim was for loss of a pension which would have been paid, but for the early death of the plaintiff. The pension was one paid by an employer, and again this case can be distinguished because different considerations, to my mind, arise where a claim for loss of a pension can be characterised as an interference with earning capacity, as opposed to a claim for loss of the ability to receive a payment which has no reference at all to an interference with earning capacity.

CONSIDERATION OF THE LOSS OF RECEIPT OF PENSION CLAIM

166. A common thread runs through all of the Australian decisions referred to above. A recognized head of damages where income has been lost as a result of a tort is that a claim can be made for diminution in earning capacity, where such diminution is or may be productive of financial loss.

167. There is no authority in Australia, binding upon this Tribunal, that loss of the ability to receive an age pension is a head of damages. The age pension is received without reference to the ability of a person to earn income, or without reference to whether there has been some interference with any ability to earn income.

168. While the compensatory principle applies, it applies to various heads of damage for which the law provides compensation. There are three categories of such loss, referred to in the earlier cases, and collected in CSR v Eddy. The categories are:

1. Pain and suffering and loss of enjoyment of life – what the common law calls general damages;

2. Out-of-pocket expenses – in a case such as the present the medical expenses incurred and the attendant care services provided;

3. Loss of or interference with earning capacity which is or may be productive of financial loss.

169. Damages are not awarded simply because the compensatory principle is satisfied. That overarching principle is the one which is to be applied in assessing damages which are available as recognized heads of damage at common law.

170. In my view the claim for loss of a pension is not available as a matter of law and no damages are allowed for that claim.

IF MY CONCLUSION ON THE LOSS OF THE RECEIPT OF THE PENSION CLAIM IS WRONG

171. In case my conclusion that the loss of the pension claim is not a head of damage recognized by the law in Australia is found on appeal to be an error in point of law, I will go on to make a theoretical assessment of the damages which could be awarded.

172. The plaintiff will continue to receive, through a combination of Dust Diseases Authority benefits, and a partial age pension everything that he would have received (and more) up to the date of his death, had he not succumbed to the disease of mesothelioma. If he did not contract mesothelioma, he would have been paid a full age pension until the presumed date of death which is 12 months from trial i.e. August 2018. The evidence shows that because the plaintiff has been paid a Dust Diseases Authority pension, this has reduced his age pension. Nevertheless, the combination of the age pension and the Dust Diseases Authority pension mean that the plaintiff will suffer no loss between now and his presumed death in August 2018.

173. The plaintiff’s theoretical loss, arising from loss of ability to receive the age pension, will run from August 2018 until his normal life expectancy, which I have found to be nine years from the date of trial. Thus the loss of the pension is to be calculated over eight years, and deferred for one year.

174. The loss before any deductions would be calculated by applying the full age pension rate and multiplying it by the 3% multiplier over eight years, deferring such figure by one year because it would not commence until August 2018.

175. There would then have to be deductions made to reflect the savings in the lost years. This is a well-recognized approach where the claim is a more conventional claim for loss of earning capacity.

176. In Fitch v Hyde-Cates 150 CLR 482 at 498 the High Court said that the true measure of the deceased’s loss is not the amount which he would have in his hands to spend, distribute or save, after defraying his probable living expenses and those of his dependants, but the amount of his future earnings less his probably living expenses to enable him to earn future wages.

177. In James Hardie & Coy Pty Limited v Roberts (1999) 47 NSWLR 425 at 445, the majority judgment said:

“In arriving at the economic value to the plaintiff of the faculty or skill there must be deducted from probable future earnings the expenditure required to enable the future earnings to be earned. This is so whether the plaintiff’s life expectancy is reduced or not. Even if the life expectancy is not reduced, expenditure such as fares and work clothing will be deducted. If the life expectancy is reduced the range of expenditure deducted will be greater and extend to expenditure no longer incurred in maintaining the plaintiff so that his or her earning capacity can be exploited. For that reason living expenses which would enable the plaintiff to earn are deducted in a claim for the lost years but not where life expectancy is unaffected. But the deduction goes no further.”

178. Mr Dib gave evidence that after he retired at age 71 he gave his company Sonete Pty Limited to his son Steven, who was also a plumber. Mr and Mrs Dib have a mortgage over their house securing $480,000, but that is a loan for the business and it is Steven who pays that mortgage. Thus Mr and Mrs Dib have no mortgage payments to make on their own home.

179. Mr Dib gave evidence that Steven helps pay for expenses for the home including electricity, gas and water. Mr Dib pays the Council rates.

180. When Mr Dib retired he had $110,000 in superannuation, but this has been spent gradually over the years. He has used it to pay for living expenses, including the cost of his daughter’s wedding. He did not know how much superannuation was left. He did say that whenever he and his wife needed extra money they took it from the super.

181. Mr Dib gave evidence that he and his wife spend less now on living expenses than they did when he was working.

182. In cross-examination Mr Dib was asked how much Mrs Dib spent on groceries when she did a shop at the supermarket. He said that he thought about $140 to $150 per week was spent on food. Mr Dib said that he bought clothes, but he did one shop per year for clothes and did not spend a lot on them. He thought that he might have spent between $1,000 and $1,300 per year on clothes.

183. The son Steven pays for petrol for Mr Dib’s car, but Mr Dib pays for car insurance of about $800. He is still paying for private health insurance which costs $340 per month.

184. Mr Dib was asked whether he had been saving any money from the age pension which had been paid into his Commonwealth Bank account. He said:

“I would not save from pension. You can’t save money.”

185. This last answer could be understood as Mr Dib saying that his living expenses entirely consumed his pension. Of course, not all of those living expenses would have to be taken into account in selecting a figure to represent savings in “the lost years”.

186. The submission was made that there should be no deduction for living expenses, as the plaintiff did not need to dip into his pension to pay for his living expenses. It was suggested that he and his wife could live off savings, or borrow against their house. I regard this as totally unrealistic, but in any event it does not accord with the law, which requires a deduction for the savings in the lost years, to be balanced against damages to be awarded for lost earning capacity. Just as it is necessary to pay for everyday expenses to stay alive to work, it is necessary to pay everyday expenses to stay alive to receive the passive income of the age pension.

187. The defendant tendered an accountant’s report by Ms Lindsay. It summarised useful information from the Australian Bureau of Statistics. The ABS collects statistics Australia-wide concerning personal expenditure. It then breaks down that data so that it can produce information about the household expenditure of households which exist on a Government pension where the household consists of people over 65 years of age. That is summarised in Schedule 1 to the Lindsay report dated 28 July 2017 (DX 1).

188. Ms Lindsay deducted from the ABS figures certain expenditure which could be regarded as non-essential expenditure eg. alcoholic beverages, tobacco products, household furnishings, household services, transport and recreation.

189. The ABS data was only for the year 2009/2010, and applying a Consumer Price Index calculation Ms Lindsay came to the figure of $197 per week for personal expenditure of an essential nature in a household where both parties are over 65 years, exist on a Government pension, and are in the lowest income quintile.

190. To my mind that is a much more realistic approach to assessing a figure for the appropriate deduction for the savings in the lost years.

191. It appears from the reports of both accountants that the appropriate pension rate for future years is $312.92 per week. Deducting $197 for savings in the lost years, this leaves a figure of $115 per week. I will adopt this figure in future calculations.

192. Applying the eight year 3% multiplier of 371.8, and a 3% deferral factor for one year of 0.971, the calculation is:

$115 x 371.8 x .971 = $41,517.05

193. That is not the end of the matter. It is necessary to deduct from any damages, apart from those damages quarantined by s 12D of the Dust Diseases Tribunal Act 1989, the payments received and to be received from the Dust Diseases Authority – Harris v Commercial Minerals Limited [1996] HCA 49; 186 CLR 1. However, in discussion with the accountants during their joint evidence session, it became apparent that the matter is not quite that simple. The receipt of the Dust Diseases Authority pension has resulted in the plaintiff having his age pension reduced. That situation will continue until his death. If I were to deduct all of the Dust Disease Authority payments received, past and future, then I would being doing a disservice to the plaintiff as I would be reducing his nett income between now and death to the reduced pension rather than the full pension. In other words, it would work an injustice to deduct all of the Dust Diseases Authority benefits from any award for future loss of receipt of the pension.

194. The accountants were able to come up with an agreed approach to deal mathematically with this problem. Schedule C to the second supplementary report of the plaintiff’s accountant Mr Thompson (PX11) set out a calculation to work out how much of the total Dust Diseases Authority benefits should be deducted from any award for economic loss, which would still leave the plaintiff in the position of in effect having notionally received the full age pension until his date of death.

195. The figure calculated by Mr Thompson as the amount which should be deducted from any award for future loss of the pension was $47,543.

196. When this amount is notionally deducted from the calculation above of the lump sum of $41,517.05 which would compensate the plaintiff for loss of receipt of the pension less savings in the lost years, it completely wipes out that lump sum. In other words, the amount, which would be deducted from damages because of the Dust Diseases Authority payments, exceeds the amount of the lump sum compensation for future loss of the pension by about $6,000.

197. Thus, even if I had been of the view that as a matter of law the plaintiff has an entitlement to damages for loss of capacity to receive the age pension in future, my assessment of the value of those damages is nil.

CONCLUSIONS

198. I award the following heads of damage to the plaintiff:

1. General damages -                                                      $350,000

2. Interest on past general damages -                             $    5,833

3. Loss of expectation of life -                                          $    8,000

4. Past out-of-pocket expenses -                                     $         Nil

5. Past gratuitous attendant care services -                    $ 102,567

6. Interest on past gratuitous attendant care services -   $    6,154

7. Future gratuitous attendant care services -                 $   80,984

                    TOTAL                                                                          $ 553,538

199. The plaintiff is not entitled as a matter of law to damages for loss of the ability to receive the age pension.

200. If my conclusion in that regard is later overturned on appeal, then my assessment of the value of that loss is nil.

201. I order that the defendant pay the plaintiff’s costs. If either party seeks some different order to that usual costs order, then I grant liberty to the parties to file further written submissions limited to the question of costs as follows:

1. Party seeking a different costs order to file and serve written submissions within 14 days of this judgment;

2. Party opposing such costs order to file their written submissions in reply within a further 14 days;

3. The question of any different costs order is to be dealt with on the papers, unless any party requests the opportunity to make oral submissions.

202. My orders are:

1. Judgment for the plaintiff for $553,538.

2. Order the defendant to pay the plaintiff’s costs.

3. If either party seeks some different order to that usual costs order, then I grant liberty to the parties to file further written submissions limited to the question of costs as follows:

1. Party seeking a different costs order to file and serve written submissions within 14 days of this judgment;

2. Party opposing such costs order to file their written submissions in reply within a further 14 days;

3. The question of any different costs order is to be dealt with on the papers, unless any party requests the opportunity to make oral submissions.

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Decision last updated: 22 August 2017