Giuseppe Zappia v Amaca Pty Ltd

[2008] NSWDDT 2

Dust Diseases Tribunal

of New South Wales

CITATION:	Giuseppe Zappia v Amaca Pty Ltd [2008] NSWDDT 2
PARTIES:	Giuseppe Zappia Amaca Pty Ltd
MATTER NUMBER(S):	7218 of 2007
JUDGMENT OF:	Curtis J at 1
CATCHWORDS:	Dust Diseases Tribunal :- Damages
DATES OF HEARING:	21 and 22 January 2008
EX TEMPORE JUDGMENT DATE:	22 January 2008
LEGAL REPRESENTATIVES:	Mr G F Little SC instructed by Turner Freeman appeared for the plaintiff Mr G J Parker instructed by Ellison Tillyard Callinan appeared for the defendant

JUDGMENT:

Dust Diseases Tribunal of New South Wales

Matter No DDT7218 of 2007

Giuseppe Zappia

v

Amaca Pty Limited

22 January 2008

JUDGMENT

CURTIS J

1. The plaintiff, Giuseppe Zappia, was employed by James Hardie and Coy between 5 May 1958 and 1 September 1960 to perform work in the manufacture of asbestos products. In the course of this employment he was exposed to and inhaled asbestos dust and fibre in consequence of which he has contracted the disease of mesothelioma. He claims damages. Liability is not in dispute.

2. Mr Zappia was born on 29 February 1936 and is now 71 years of age. He migrated to Australia in 1956 at the age of 20 and married Catarina Zappia on 30 January 1960. The marriage has been a happy and fruitful one and there are four children, Mary now 46, Anna now 38, Lina now 34 and a son Peter now 30. Mr and Mrs Zappia have twelve grandchildren. After various labouring jobs in and around Sydney, Mr Zappia in 1971 moved to Robinvale in country Victoria and bought 20 acres of vineyard upon which he grew table grapes. He retired in 2001 and handed the property and the business to his son, Peter. Thereafter Mr Zappia, without pay, worked with Peter assisting in the vineyard and particularly at harvest time.

3. Mr Zappia complained of pain in his abdomen from 1991 when at a function for a local football club he was seized with left abdominal pain, became dizzy and passed out. He was treated at Robinvale District Health Service for three days but no diagnosis emerged. It is improbable that this event was related to later disease. On the next occasion Mr Zappia felt abdominal pain he was in Italy in May 2000 on holiday with his wife. He believed that this was a muscle strain from his work on the farm and took Panadol to control the pain. He says that from about that time he felt intermittent abdominal pain although there were lengthy periods when there was no pain at all. In early 2003 the abdominal pain became worse and he sought medical treatment. After x-rays the doctors told him there was nothing to be found and a second opinion obtained from a doctor in Sydney was to the same effect.

4. Mr Zappia continued to complain of worsening abdominal pain and at an attendance at the Robinvale medical clinic in early 2006 he was diagnosed with a hernia. This may have been the cause of the abdominal pain before that time or around that time. I am unable to form any conviction that at that time he was yet suffering from his mesothelioma.

5. Mr Zappia declined to have the hernia repaired at that time. However, in December 2006 the pain became severe and kept on getting worse. In his affidavit he said it was different from the pain that he had had since 1991 although his evidence was then unclear as to whether the difference may have been explicable in terms of it being different because it was more severe rather than different because of its location. I am persuaded in any event that the pain in December 2006 was certainly pain caused by the growth of the mesothelioma.

6. From that time Mr Zappia suffered from increasingly debilitating abdominal pain. He was able to work in his son's vineyard for two or three days per week for two or three hours a day until about March of that year although his work was restricted to very light duties, at times sweeping and at times assisting with labelling. He was able at that time to drive a car, to make himself small meals and able to do shopping. However, generally his abilities were limited because of pain.

7. Mr Zappia was admitted to Mildura Private Hospital on 1 June 2007 for repair to his hernia. That repair did not obviate the pain and on 18 June 2007 he was admitted to Robinvale Hospital with severe abdominal pain requiring painkilling injections. A further attack of severe pain occurred on 20 June.

8. On 26 June 2007 he underwent a colonoscopy which found no cause for his pain. However, on 5 July 2007 a laparotomy found substantial adhesions within his stomach with compression of the intestines. His disease had obviously progressed extensively and at that stage he was in a parlous condition. On 16 July 2007 he was told of his diagnosis and his prognosis. He was devastated. Thereafter Mr Zappia's condition has been that of steady deterioration. Some chemotherapy was attempted. However after three treatments there was no improvement. In fact the tumour had become larger. He was distressed by the chemotherapy which caused extensive night sweats.

9. Mr Zappia found no comfort from conventional medicine and was depressed by each occasion upon which informed medical opinion advised him that there was no hope. In consequence he sought alternative remedies and attended for a period at the Gawler Foundation in Victoria and made many trips to a clinic known as the Fravira Clinic in Adelaide which offered alternative medicine. It is unnecessary for me to address the cost of those treatments because they have been paid by the Dust Diseases Board. The sadness is that the hope engendered by the persons at the Gawler Foundation and the Fravira Clinic was false. On 15 January of this year Mr Zappia's condition had so deteriorated that he was admitted to the Robinvale hospital where he will probably die. He has suffered greatly both physically and mentally.

10. In giving evidence he spoke in terms used by the medical profession to the effect that his pain was "controlled". Control means different things to different people. I found him to be stoic and uncomplaining and the better picture of his suffering was given by his wife who says that he has at times cried out, "Give me a knife - I want to cut my tummy, there is fire in there".

11. On top of his physical pain there is the manifest anguish at his premature death. He is unhappily conscious of the fact that he will be deprived of years of the society and comfort of his extended family. I have in evidence a photograph taken before his illness in which Mr Zappia is seated proudly with his wife before the 18 members of that family.

12. I accept that Mr Zappia is angry at the futility of his death which could have been obviated by the defendant taking reasonable precautions to protect him. I do not purport to include, however, in my award of damages any measure for aggravated damages, merely award that sum of money which fairly compensates Mr Zappia for his physical pain and mental anguish.

13. I award general damages in the sum of $230,000. I award $4,050 interest on that sum, being interest on 90 per cent of the damages for one year. Upon the prospective life tables Mr Zappia had 15 years of life before him. I allow a conventional figure of $15,000. For reasons discussed with counsel I award $60,000 in respect of care and services and allow $2,400 interest upon that sum. I allow out of pocket expenses in accordance with an estimate of $1,750.

14. Judgment for the plaintiff in the sum of $313,200.

15. I had indicated to counsel in address that I thought $225,000 was an appropriate amount for general damages. Mr Parker for the defendant submitted that such a figure was too high. I reflected in the course of expressing my reasons and concluded that the figure of $225,000 did not properly do justice to the circumstance of the plaintiff.

16. The plaintiff served an offer of compromise in the sum of $310,000. The offer was served on 27 December, two days after Christmas, when most legal firms are closed. It was only open for acceptance until Wednesday, 9 January 2008. In normal term time that would be a sufficient time but given the exigencies of the Christmas period I do not think it entirely reasonable. That is, it may have been served properly on 27 December 2007 but there should have been a longer period to respond. The defendant is to pay the plaintiff’s costs on a party/party basis.

Mr G F Little SC instructed by Turner Freeman appeared for the plaintiff

Mr G J Parker instructed by Ellison Tillyard Callinan appeared for the defendant