Ewins v BHP Billiton Ltd - [2005] SASC 95

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
EWINS v BHP BILLITON LIMITED & WALLABY GRIP LIMITED
Judgment of The Honourable Chief Justice Doyle
17 March 2005
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES
A negligence action for damages resulting from the plaintiff's terminal medical condition - the plaintiff was employed by the defendant between 1949 and 1963 during which time he was exposed to asbestos particles in the course of his work - in 2004 the plaintiff was diagnosed with malignant epithelial mesothelioma - liability was admitted by the defendant and the action proceeded as an assessment of damages - measure of general damages for pain and suffering, loss of amenity and loss of expectation of life - whether an approved treatment is reasonable in the circumstances considering the cost and benefits - measure of damages for future medical expenses.
Packer v Cameron (1989) 54 SASR 246, discussed.
Burford v Allan (1993) 60 SASR 428; Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; Hirsch v Bennett [1969] SASR 493; Kite v Malycha (1998) 71 SASR 321; Coyne v Citizen Finance Limited (1991) 172 CLR 211; Chakravarti v Advertiser Newspapers Limited (1998) 72 SASR 361, considered.

EWINS v BHP BILLITON LIMITED & WALLABY GRIP LIMITED
[2005] SASC 95
Civil

DOYLE CJ: In November 2004 Mr Ewins was diagnosed as suffering from malignant epithelial mesothelioma of the right pleural space. His condition is progressive and fatal. At the time of diagnosis his life expectancy was short.
On 21 December 2004 he issued proceedings against the defendant BHP Billiton Limited (“BHP”). He claimed that his condition is attributable to exposure to asbestos while employed by BHP between 1949 and 1963. He claimed that the exposure to asbestos was caused by BHP’s negligence.
The action came on for trial before me on 7 March 2005. BHP admitted liability. The action proceeded as an assessment of damages.
BHP joined Wallaby Grip Limited (“Wallaby”) as a third party, claiming contribution or indemnity from it. Before the trial began I ordered that the third party claim be tried separately from Mr Ewins’ claim against BHP. I gave liberty to Wallaby to participate in the trial. Neither order was opposed.
Findings
Mr Ewins gave evidence, as did his wife and his daughter, Mrs Mundy. I accept their evidence.
I accept the substance of the evidence of each of the medical specialists who gave evidence. There were some differences in their evidence (to which I will refer later) in relation to some matters such as Mr Ewins’ life expectancy (which is measured in months), as to the nature and extent of the treatment that he will require or that will be appropriate as his condition progresses, and as to the reasonableness of using Alimta, a new and expensive drug, by way of chemotherapy.
The differences on these matters, in my opinion, represent nothing more than differing professional judgments on matters of degree.
There is no significant dispute about the main facts, or about Mr Ewins’ prospects. The dispute centred on the amount to be allowed for pain and suffering and loss of amenities, on whether the allowance for chemotherapy should include the cost of Alimta, and on the appropriate allowance for medical treatment in the final stages. The first two matters were the main matters of dispute.
Mr Ewins was born on 3 May 1933. He was 71 years old when his condition was diagnosed. He is now almost 72 years old.
Mr Ewins married his wife in 1959. They are a devoted couple. He has four children (all adults) and 10 grandchildren. The family is a close one, and they care greatly for Mr Ewins.
He worked for BHP as a carpenter and joiner. After 1963 he worked in a variety of forms of manual work for different employers. He is good with his hands.
Mr Ewins retired from employment in 1995.
He has a fused right knee joint, as a result of a fall in about 1991. The right leg is shorter than the left. He walks with a noticeable limp. The stiffness of the knee joint restricts his movements to some extent, but not greatly. He has a fused right wrist, a result of an injury in 1988. It is characteristic of him that he trained himself to use his left hand for most tasks requiring a flexible wrist. The fused wrist restricts his activities, but only slightly.
He suffers from mild ischaemic heart disease that does not warrant surgery. This condition so far has imposed no significant restrictions on him. I find that but for the mesothelioma it would not have done so. He also has high blood pressure and has suffered from gastric reflux. These conditions are well managed with medication.
I find that he was a fit and active man until the mesothelioma began to affect him in early 2003. The first symptoms were shortness of breath and pain in the chest.
Until 2003, and for a while afterwards, he busied himself with odd jobs, often doing things for family members, including helping with renovations and repairs to their houses. He enjoyed golf and walking his dog. He enjoyed playing with his grandchildren. He was enjoying life, and was about as active as one could expect to be at his age.
I find that he had a reasonable life expectancy, probably 10 years or more. He would have continued to be an active man, but for the onset of mesothelioma.
I find that in early 2003, when he was living in Tasmania, he began to feel pain in his right chest, and to experience some shortness of breath. He sought medical advice. He was found to have a moderate sized pleural effusion and pleural plaque. These findings, coupled with his symptoms and his history of exposure to asbestos, raised the possibility that he was suffering from an asbestos related disease. A pleural aspiration and subsequently a thoroscopy were carried out. Each of these procedures involved some pain and discomfort, a short period in hospital, and a short period of convalescence at home. His wife cared for him at home.
The tests were inconclusive. I find that the uncertainty about the cause of the symptoms was unsettling for him.
I find also that his complaints of pain and breathlessness from this time on were attributable to mesothelioma. I am satisfied that they were not attributable to a cause unrelated to the mesothelioma.
In September 2003 Mr Ewins and his wife returned to live at Elizabeth, north of Adelaide. They made this move because Mr Ewins was having increasing difficulty breathing when the air was damp. He hoped that the drier climate in South Australia would make his breathing easier. Mr and Mrs Ewins would have remained in Tasmania but for the state of his health. They were very happy there. This is a factor to be taken into account in assessing his damages.
The cause of his symptoms remained a concern. He consulted Dr Antic, a specialist in thoracic medicine.
In late 2003 and 2004 Dr Antic arranged for further tests and obtained further opinions. The cause of the symptoms remained uncertain, but the possibility of an asbestos related disease remained. The breathlessness and chest pain were gradually getting worse.
In July 2004 a bronchoscopy was carried out. This involved a short admission to hospital. Again the results were inconclusive.
At about this stage Mr Ewins declined to undergo a further lung biopsy. He had had enough. The significance of this is that he is both stoic and relatively laconic. He is not one to complain. I find that he had undergone a significant amount of pain and inconvenience as a result of investigative procedures to that stage.
By late 2004 the pain in his chest was fairly constant. His breathing also was quite restricted. He was significantly restricted in the activities that he could undertake. There were some things, such as walking, that he could still manage. But he could only walk a much shorter distance than in the past, and had to pause and rest. He was still able to potter in the garden. There were other things, such as playing with his grandchildren and performing handyman tasks, that he could not do at all. He could still perform minor tasks around the house. He could drive his car.
In November 2004 a CT scan indicated the presence of a tumour. He underwent a further lung biopsy, and Dr Antic then informed him that he was suffering from mesothelioma.
I find that this diagnosis, once its significance was explained to Mr Ewins, caused him considerable distress. As I have said, he is a stoic man. But I have no doubt from his evidence, and from seeing him, that he was deeply upset when told of his condition. He is greatly concerned about his wife’s welfare, probably more so than about his own state.
Subsequently radiotherapy was carried out at the biopsy site, to prevent the tumour spreading through or along the path of the biopsy needle.
When he gave evidence before me his condition was much the same as described in November 2004. The pain and breathlessness are, I find, a little worse than then. He is still able to care for himself, and will be able to do so for some time yet. This is subject to a sudden change in his condition, which is always a possibility. While he can “potter about” he is substantially restricted in what he can do.
Dr Antic referred Mr Ewins to Dr Taylor, an oncologist. She saw him on 20 January 2005. She recommended chemotherapy, which began on 25 January 2005. He has undergone two cycles of chemotherapy, and two more are planned. The number of cycles will depend on his response and on the progression of the disease. The treatment has unpleasant effects, including nausea and dizziness. The first cycle affected him badly. The drug used was changed, and the second cycle did not affect him as badly.
The chemotherapy will not cure him. Dr Taylor said that it can relieve symptoms and might prolong his life by two or three months. She will review his condition after the third cycle, and then will decide whether to recommend continuing with chemotherapy.
That leads to two areas of contention – Mr Ewins’ life expectancy and whether chemotherapy using Alimta is appropriate and properly the subject of an award of damages for its cost.
Statistics relating to persons suffering malignant pleural mesothelioma indicate that the median survival time is about nine or ten months from a definite diagnosis (Dr Antic), or about six to nine months (Dr Taylor) or about nine months (Professor Alpers). That median is derived, obviously, from a range of results falling either side of the median line.
It is another matter to make an estimate of the life expectancy for an individual. The evidence before me is that the progression of mesothelioma is, sadly, steady and irreversible. Nevertheless, there is some variation in survival times. Persons suffering from mesothelioma often experience a sudden worsening in their condition, after a period of apparent stability. The attitude of the sufferer is a relevant factor.
Dr Antic estimated in December 2004, taking everything into account, including Mr Ewins’ determination to survive for as long as he can, that he had a life expectancy of about six months. That was not a precise estimate, nor could it be. In evidence he said that Mr Ewins might survive six months from the time he gave evidence, but that would depend on the results of a further CT scan, due to be performed soon, that would indicate the progression of the disease since the last CT scan in November 2004. The CT scan in November had indicated a significant increase in the pleural mass, which means that the disease was worsening.
Professor Alpers estimated Mr Ewins’ life expectancy at four months to six months in January 2005. In evidence he said that Mr Ewins’ disease might be progressing more slowly than usual, but there was nothing to cause him to change his estimate.
Professor Scicchitano, a thoracic specialist called by BHP, estimated Mr Ewins’ life expectancy at six months in February 2005, and at about three months at trial.
Each witness agreed that there was considerable variation from individual to individual.
I find that Mr Ewins’ life expectancy is now about six months. This is at the higher end of the range. My finding is influenced by Mr Ewins’ determination to participate in a family reunion next Christmas. The witnesses accepted that his attitude could affect his life expectancy.
Dr Taylor said that her advice to Mr Ewins about further chemotherapy will be based on the findings and symptoms when his condition is next reviewed, after the third cycle of chemotherapy. She favours considering the use of Alimta, which, as I have already said, is a newly available drug. She would substitute Alimta for one of the drugs currently being used. Alimta is approved for use, but does not attract a government subsidy. It is expensive, costing at least $4,681 per cycle, compared with $1,380 per cycle for the drug that it would replace. Because the quantity required for each cycle is likely to mean that two vials will be needed, it is in fact likely to cost about $9,400 per cycle, as the cost initially mentioned by me is the cost of a single vial.
A decision on the use of Alimta would depend upon the circumstances when Mr Ewins is next reviewed. If he has made a very good response to the existing drugs (which Dr Taylor thought was unlikely), she will not recommend a change. Although it was not put to her specifically, the evidence as a whole supports a finding that if his condition had deteriorated dramatically he might not be able to cope with further chemotherapy.
Mr Ewins gave evidence, that I accept, that he will accept her advice to use Alimta, if that is the advice. So far he has been deterred by the cost.
The respiratory specialists, Dr Antic and Professor Alpers, were rather cautious about the advantages of using Alimta. They had doubts about the claim that it would extend Mr Ewins’ life, doubts about the cost benefit ratio, and expressed some concern about side effects. But the effect of their evidence was that while they would advise Mr Ewins to think carefully, in the end they would defer to the advice given by Dr Taylor, while maintaining their own caution. They agreed with Dr Taylor that Mr Ewins was a suitable candidate for Alimta (assuming it was appropriate to use it) because his general health remained reasonable, and there were some indicators that he might benefit from Alimta.
Dr Taylor acknowledged that the case for using Alimta rested on relatively recent trials, the subject of papers to which she referred in her written report. In particular, she relies on a fairly recent randomised study, involving some 450 patients. She said that the reported results indicated that the median survival time increased from nine months to 12 months, coupled with some improvement in quality of life. She regarded that increase as significant.
Mr Walsh QC, counsel for BHP, challenged this view. He argued that the prospective benefits are too uncertain, and in any event not sufficiently substantial, to warrant the cost. He called Professor Scicchitano, also a respiratory specialist, who expressed firm reservations about the value of chemotherapy using Alimta. Professor Scicchitano referred to the risks, the possible side effects, and expressed doubts about claimed prolongation of life and palliative effects. My impression is that his views did not differ greatly from those held by Dr Antic and Professor Alpers, although he held and expressed them more firmly than they did.
Mr Walsh led evidence from Professor Scicchitano criticising the soundness of the conclusions reached in the papers on which Dr Taylor relied. That evidence was objected to by Mr Rush QC, counsel for Mr Ewins. Having heard the evidence I upheld the objection and excluded the evidence. Professor Scicchitano’s criticism of the paper on which Dr Taylor had relied had not been included in his written report. To allow the evidence to be led would have been to permit a breach of the requirement that expert evidence be limited to material contained in the expert’s report. Had I allowed the evidence to be admitted, fairness would have required that Mr Rush have the opportunity to obtain instructions for the purposes of cross-examination, and also have an opportunity to recall his expert witnesses. The course of the trial would have been disrupted. Another factor that influenced my ruling was that Professor Scicchitano’s criticisms were not put to Dr Taylor. The intention to claim for the cost of Alimta was flagged to BHP’s solicitors in the weeks before the trial.
I am left with Dr Taylor’s evidence, as an expert oncologist, supporting the use of Alimta, on the basis of publications in journals that are apparently accepted as authoritative sources within her specialty. On the other side, I have the reservations expressed by the three respiratory specialists, two of whom apparently were prepared to defer to Dr Taylor, in the sense that they would not advise a patient against acting on her advice. Professor Scicchitano would probably take a firmer line.
In those circumstances I accept the evidence of Dr Taylor that Alimta offers sufficient benefits to warrant its use and to warrant its cost. I also find that treatment with Alimta is, in all the circumstances, reasonable. On the evidence it offers a sufficiently substantial benefit for a person in Mr Ewins’ condition to make the expense justifiable.
Whether Dr Taylor will recommend the use of Alimta remains to be seen. It is appropriate to allow for the possibility that she will, and if she does, I find that Mr Ewins will act on that advice.
My decision is not one that resolves any scientific controversy about the merit of Alimta. My decision is reached on very limited evidence, which does not include the testing of the research results relied upon by Dr Taylor.
I turn to the future.
I find that over the final months Mr Ewins will suffer increasing chest pain and increasing difficulty in breathing. Mesothelioma commonly brings with it, in the closing stages, severe and unremitting pain. There is a chance that Mr Ewins will not experience this, but I find, without being able to be precise as to the duration, that Mr Ewins will experience severe pain in the closing stages. Medical procedures are likely to be required to control that pain, and allowance should be made for the cost of that. The procedures and the medication that will be necessary for pain control, will have their own unpleasant effects. Surgical intervention to deal with the pleural effusion, contributing to Mr Ewins’ breathlessness, may also be necessary, although I am not able to say that this will be necessary. An allowance should be made in the award for the risk that this is a cost that Mr Ewins will incur: see Malec v J C Hutton Pty Ltd (1990) 169 CLR 638.
Mr Ewins faces a final period in which he will experience considerable pain. To this will be added the pain and discomfort attributable to the treatment that he will require. He will become entirely dependent on others for his care. This is likely to cause him considerable distress, as he will suffer a complete loss of independence and will require the assistance of others with the most basic of bodily needs. His circumstances will be extremely distressing.
I find that Mr Ewins’ family will care for him at home until the end, unless circumstances are such that it becomes impossible to do so. This is Mr Ewins’ wish. In all the circumstances I regard that as a reasonable approach.
Damages for pain and suffering and loss of amenities

The assessment of damages for pain and suffering and loss of amenities is to be made on the basis of the findings that I have made above.
In brief, Mr Ewins has suffered increasing pain and discomfort, attributable to his disease, over the last two years. He has undergone medical treatment which has caused pain and discomfort. From about the middle of 2004 he has been prevented from engaging in many of the activities that give him pleasure. As to other activities, he engages in them but is severely restricted. He has had to move from Tasmania, where he preferred to live. He faces the prospect of an early and painful death, and all that means for him and his family. He faces a period of increasing pain and disability, culminating in severe pain and complete inability to care for himself.
He is entitled also to an award of damages for loss of the expectation of life. The award of damages under this head has usually been determined on what has been a conventional basis. That is, by reference to a figure or standard established by a series of decisions as about the right amount under this head. For that reason, perhaps, it has been said that the award under this head is to be a moderate amount: Kite v Malycha (1998) 71 SASR 321 at 340 Perry J. Nevertheless, it should not be nominal.
I have regard to the general level of awards made under this head in this State. I regard $10,000 as an appropriate sum under this head. Although it is an arbitrary amount, it is intended to compensate Mr Ewins for the loss of what should have been a number of happy years in retirement.
The award of damages for pain and suffering and loss of amenities is more difficult. I accept the general thrust of the submissions made by Mr Livesey, counsel for Wallaby, to the effect that the award of damages must be made having regard to the general level of damages awarded in this State.
In Packer v Cameron (1989) 54 SASR 246 Cox J said at 250-251:
“There is no obvious or natural relation, of course, between the experience of pain and a particular sum of money. There is no logical reason why a man’s non-economic damages, for any given loss, should be assessed at $10,000, say, rather than half of that amount, or double. In the end the foundation for any particular assessment is that it is reasonably proportionate to the damages that have been awarded in other cases that are more or less comparable with the plaintiff’s, although the overall standard may be subject to periodic revisions to accord with the courts’ appreciation of the general level of damages awards that the community, as represented by the insured motorists, can fairly be expected to accept. We were referred to the oft-quoted judicial statements that eschew tariffs and emphasise the need to fasten on the situation of the particular claimant and not the situation of other claimants in other actions. See, for example, Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118. However, no-one has suggested that damages can sensibly be assessed by some kind of innate impulse. The court in Planet Fisheries (supra) acknowledged that ‘a judge who is making an assessment will be aware of and give weight to current general ideas of fairness and moderation” (at 125), which must be an allusion to a general knowledge of other cases. … Certainly the High Court discountenanced any attempt to establish on appeal the correctness or otherwise of an award by comparing it with specific cases, but that is another matter: cf Hirsch v Bennett [1969] SASR 493 at 497-499; and Moran v McMahon (1985) 3 NSWLR 700. The changes made by s 35a have to be read, therefore, against the background of a legal system in which awards in comparable cases within the same judicial system – and that does not mean only similar cases – create the broad standard by which any particular plaintiff’s loss is to be measured in money terms, and in which a general consistency between awards for comparable losses remains a desirable goal.”
I refer also to the observations made by members of this Court in Hirsch v Bennett [1969] SASR 493 at 494 Bray CJ, and at 498-499 Travers and Walters JJ. They emphasised the significance of the range of awards made in this State. On the same point see the observations made by members of the High Court about the level of awards of damages for defamation in the relevant jurisdiction in Coyne v Citizen Finance Limited (1991) 172 CLR 211 at 214 Mason CJ and Deane J, at 222 Toohey J and at 239-240 McHugh J.
I think there is nothing new in this, namely, in the proposition that in awarding damages in this State I should have regard, in a general way, to the general level of awards of damages for personal injury made by courts of this State. I inform myself about that matter by reading decisions of courts in this State, and by my experience as a member of the Bench.
This is not to say that the level of awards in other States is irrelevant. In Chakravarti v Advertiser Newspapers Limited (1998) 72 SASR 361 the Full Court said that the level of damages awarded for defamation should be increased having regard to the level of awards in other states. But it is the general level of awards in this State that is my primary guide.
Mr Rush referred to several decisions of the Dust Diseases Tribunal of New South Wales. These suggest that in broadly comparable cases that Tribunal awards general damages for pain and suffering and loss of amenities in the range from $150,000 to $200,000.
That range, I consider, is higher than the range that has been used by courts of this State. I make that statement on the basis of my general knowledge of case law in this State, and on the basis of my general experience. I have not attempted to make any precise comparison between this case and other cases.
I refer to one case only. In Burford v Allan (1993) 60 SASR 428 the plaintiff was about 14 years of age. She was involved in a road accident and suffered what were described as “calamitous injuries” resulting in permanent quadriplegia. The trial Judge found that the quadriplegia “was the most serious imaginable compatible with life” at 429.
The plaintiff’s condition was tragic. She was unable to breathe satisfactorily without mechanical assistance, and would require mechanical assistance for the rest of her life. It is unnecessary to go into the details of her condition. It suffices to say that the plaintiff faced a lifetime of disability. In the words of Perry J in the Full Court at 431:
“For all intents and purposes, she has lost the ability to move her upper and lower limbs. She suffers from involuntary muscle spasms. The loss of bladder and bowel function results in a need to use catheters and an enema throughout the day. She can perform none of the activities involved in day to day living without assistance, including washing, bathing, dressing and feeding.”
The trial Judge said that she was unlikely to marry, and even less likely to have children. She would live a completely sedentary existence and would remain substantially isolated from her peers. There is almost nothing that she could do by way of physical activity. She had to be constantly monitored by suitably qualified people.
The trial Judge awarded $320,000 for pain and suffering and loss of amenities. In today’s money, that is equivalent to a little more than $400,000. Perry J, with whose reasons the other members of the Full Court agreed, said that the award “… although high, was within allowable limits” at 432. The headnote to the case refers to the award as greater than any previous award in this State, and my own recollection is that at the time it was considered to be one of the highest awards ever made for pain and suffering and loss of amenities.
That decision reflects a general approach to an award of damages for pain and suffering and loss of amenities. I believe that the award in that case has been treated on a number of occasions as providing a general indication of the highest level of an award under this heading. Bearing that in mind, I consider that an award of damages in the range of $150,000 to $200,000 for general damages, in a case like the present, would be out of line with the general approach taken in this State. To say that is not to discount, in any way, what Mr Ewins has endured and will have to endure. It is merely to recognise that an award made by reference to the scale suggested by Mr Rush would not be consistent with the approach taken in this State.
I am unable to accept Mr Rush’s invitation to move to a new level of damages under this head. First, as Cox J said in Packer v Cameron, I must make an award of damages that is not only proportionate to the injuries suffered, but also that bears an appropriate relationship to the overall level of awards made in this State. To do otherwise would be to ignore my responsibility as a trial judge. Second, were I to apply a higher level or standard of damages, it would follow as a matter of consistency that that approach should flow through to other cases. It is not possible to apply one general standard to cases of mesothelioma, and a different and lower standard to other personal injury cases. It is the function of the Full Court, and not of a single Judge, to decide whether the general level of damages should be increased.
I understand that it will seem unfair to some, and probably to Mr Ewins, that his injuries would attract a higher award of damages were the case heard by the Dust Diseases Tribunal of New South Wales. The apparent anomaly is a result of the need for consistency of approach within this State to the award of damages, and a result of my duty to leave it to the Full Court to decide whether that approach should be changed having regard to approaches taken in other courts or States: cf Chakravarti at 377-378 Doyle CJ and Perry J.
Taking into account the general level of awards of damages in this State for pain and suffering, in cases where the award of damages is not controlled by statute, I consider that an award of $100,000 is an appropriate award for pain and suffering and loss of amenities. To this must be added the sum of $10,000 for the loss of life expectancy, resulting in an overall award of $110,000.
I do not accept the submission, advanced by Mr Walsh that the amount awarded should be influenced by various statutory controls and limits on the amount to be awarded in certain situations by way of damages. I see no reason to adjust the approach to the assessment of damages in a situation not affected by statute, by reference to statutory changes.
I apportion the award of $100,000 as to $35,000 to the past, and as to $65,000 to the future. I allow $1,400 for interest (at the rate of four percent). That reflects the fact that Mr Ewins has suffered gradually increasing symptoms over a period of two years.
Medical expenses to date
Medical expenses incurred to date are agreed at $2,887.85.
Future medical expenses
I award a rounded out amount of $39,000. I arrive at this amount as follows.
Mr Ewins will require continuing attention from his general medical practitioner. I allow $800 on that account.
He will require continuing attention from Dr Antic. I allow $500 for that, the amount estimated by Dr Antic.
There is a significant risk that complications will develop requiring admission to hospital, but I cannot find that this will occur. An amount should be allowed for the risk of Mr Ewins requiring specialist attention as a result of being admitted to hospital. I allow a further $700 on that account. It is impossible to say how long Mr Ewins will remain in hospital, should he be admitted because of respiratory difficulties. The estimates ranged from six days to 14 days, but these are possibilities rather than estimates. The cost of hospitalisation is $1,000 a day. Doing the best I can, I allow $5,000 on that account.
Nearly all sufferers from mesothelioma require treatment for pain, involving specialist attention and sometimes surgical procedures. I find that specialist attention and treatment will be required, but I cannot make a finding as to its nature and extent. I allow an amount of $2,500 as a contingency on this account. I make no separate allowance for analgesics and other forms of pain relief, which I am confident Mr Ewins will require, although he does not like taking medication. Such medication is likely to cost at least $750.
I allow $1,650 for further CT scans.
I find that Mr Ewins will require specialised palliative care in the final stages of his treatment. This will involve the attendance of a palliative care nurse, estimated by Dr Antic to cost $750. There is a fair chance that Mr Ewins will require the attendance of a specialist palliative care medical practitioner. On this account I allow overall an amount of $1,000.
I find that Mr Ewins will require oxygen to be provided to him, while he is nursed at home. I allow $1,000 on that account.
It is possible that Mr Ewins will require counselling, although I expect he will be reluctant to have that assistance. I allow $500 on that account.
I allow a further $500 for nutritional advice and support.
I have found that chemotherapy using Alimta is a reasonable approach to treatment, having regard to the cost, the anticipated benefits and Dr Taylor’s opinion as to the prospect of the anticipated benefits being realised.
I find, on the balance of probabilities, that the existing course of chemotherapy will be carried through four cycles as proposed, unless a decision is made to switch to Alimta. The cost of four cycles is about $10,500, excluding CT scans, for which I have allowed separately. There is, nevertheless, a chance that the existing regime will be discontinued.
It is likely that the switch to Alimta will be made. I cannot find on the balance of probabilities that this will happen. Alimta will cost about $6,200 per cycle. If the switch is made Alimta is likely to be administered over four cycles, at a cost of about $25,000.
In that event, the total cost of chemotherapy (two cycles of the existing regime and four cycles of Alimta) will be about $30,000. There is a chance that further chemotherapy will be given, but I regard that as a relatively low chance.
Doing the best I can to allow for the various contingencies, ranging from discontinuation of chemotherapy after the second cycle through to more than six cycles in total, I allow $25,000 on this account.
In arriving at these amounts I have indicated where I have allowed for contingencies. I have had to allow for them at various levels. In some cases the most I can say is that a particular form of treatment might well be required. In other cases I have been able to say that the treatment will be required. But in most cases, even if the treatment is required, I have had to work with a range of figures that reflect possible variations in the extent of treatment that will be required and provided.
Services provided gratuitously and like matters
The parties have agreed that an amount of $44,000 should be allowed for services and assistance required by Mr Ewins, but so far provided gratuitously by Mrs Ewins, and to be provided in the future by Mrs Ewins and others. This amount, by agreement, includes the cost of medical aids and equipment, an allowance for interest, and any additional costs attributable to hospice care, should Mr Ewins require admission to hospital.
Summary
I award damages as follows:
$
Loss of expectation of life  10,000.00
Pain and suffering and loss of amenities  100,000.00
Interest  1,400.00
Past medical expenses  2,887.85
Future medical expenses  39,000.00
Gratuitously provided services and other matters                      44,000.00
Total   $197,287.85
Accordingly, judgment will be entered for the plaintiff against the defendant for the sum of $197,287.85.